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Professional Negligence
2016

A tour of the tort of negligence

James Goudkamp and Melody Ihuoma %N%67%N
Subject: Negligence . Other related subjects: Mental health. Torts.
Keywords: Mentally disordered persons; Personal injury; Tortious liability;
Case:
Dunnage v Randall [2015] EWCA Civ 673; [2016] Q.B. 639 (CA (Civ Div))

*P.N. 137 1. Introduction

This article addresses the Court of Appeal's recent decision in Dunnage v Randall. 1 Dunnage is a
landmark ruling. It has ramifications for virtually every facet of the tort of negligence, including
defences thereto. In particular, it has a bearing on the objective standard of care and the concept of
involuntariness. The decision is perhaps particularly significant in relation to the latter given that the
law on involuntariness in tort is not particularly well developed. Dunnage also raises numerous
pressing theoretical issues that are of considerable significance, including the nature of the
relationship between tort law and the criminal law. Understanding Dunnage requires a tour of the tort
of negligence.
On 14 October 2007, Mr Vincent Randall ("the defendant') visited his nephew, Mr Terry Dunnage
("the claimant'), at his home. Following a belligerent exchange of words, the defendant retrieved a can
of petrol from his car, doused himself with petrol and threatened self-immolation. A struggle ensued.
The claimant tried to disable the defendant but both men were engulfed in flames. The claimant was
able to escape from the inferno by jumping from a balcony but not before suffering severe burns. The
defendant died due to his injuries. A post-mortem examination of the defendant determined that he
had been suffering from "florid paranoid schizophrenia'2 at the time.
The claimant sued the defendant's estate and the defendant's public liability insurer, alleging that the
defendant had been negligent. The insurer's obligation to pay depended on whether the defendant
had incurred liability on account of "accidental bodily injury'.3 Cover was excluded in respect of liability
arising from "wilful or malicious' acts.4 Rightly or wrongly, the proceedings were conducted on the
basis that the claimant's entitlement to recover from both the defendant's estate and the insurer
turned only on whether the defendant was liable in the action in negligence. So framed, the issue in
dispute was whether the defendant's mentally disordered state absolved him of responsibility in that
tort.
At first instance it was held that the defendant was not liable in negligence because he did not owe
the claimant a duty of care due to his mental illness.5 An appeal by the claimant was unanimously
allowed.6 Rafferty, Arden and Vos LJJ delivered separate *P.N. 138 concurring reasons in which they
held that the defendant was liable (with the principal reasons being given by Rafferty LJ). All three
judges treated it as self-evident that the defendant owed the claimant a duty of care and focused
instead on the standard of care that the defendant was required to achieve and the concept of
involuntariness. The court decided that the reasonable person standard admits of no exceptions save
for children, who are to be judged against the standard of the reasonable child of the same age.
Accordingly, it was held that the defendant had to achieve the standard of the reasonable person who
was not suffering from schizophrenia. Since it was axiomatic that the defendant had not met that
standard, he (and his insurer) was liable. All of the members of the court would have exonerated the
defendant from liability had his actions been physically involuntary, but the court held that he had
lacked only rational control. A lack of rational control was beyond the scope of the exception from
liability for involuntary behaviour.
In this article we argue that the reasoning in Dunnage is seriously deficient. It will be contended inter
alia that: (1) the decision is contrary to authority that was binding on the court; (2) the justifications
that the court offered in support of imposing a strict objective standard were inadequate; (3) the court
offered no compelling reason for excluding a lack of rational control from the scope of the

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involuntariness exception from liability; (4) that it was left unclear how the involuntariness exception
operates within the structure of the action in negligence; and (5) that the court missed a rare
opportunity to consider whether a defence of insanity should be welcomed into tort law.

2. The objective standard of care

The court in Dunnage was adamant that the breach element of the action in negligence should be
insensitive to the defendant's personal characteristics. A strict objective standard of care was
endorsed. The only exception to this rule countenanced by the court concerned childhood. This
approach came across particularly clearly in Vos LJ's reasons. His Lordship wrote: "The courts have
consistently and correctly rejected the notion that the standard of care should be adjusted to take
account of personal characteristics of the defendant. The single exception in respect of the liability of
children should not, I think, be extended.'7 Numerous points of interest emerge from the decision in
Dunnage in this regard.

(a) Mansfield v Weetabix Ltd

Dunnage is in obvious and significant conflict with the earlier, well-known decision of the Court of
Appeal in Mansfield v Weetabix Ltd. 8 The defendant in Mansfield was the employer of a driver who
had lost control of his vehicle, with the result that it crashed into the claimant's shop. The accident
occurred because the employee had lost consciousness. The loss of consciousness was caused by a
rare condition from which he suffered (unbeknownst to him at the time) that starved his brain of
glucose. The nature of the condition was such that the loss of consciousness was gradual and the
employee was unaware that his ability to drive was becoming impaired. The court unanimously held
that the employee had not been negligent, and that, consequently, his employer *P.N. 139 was not
vicariously liable to the claimant. Leggatt LJ, who delivered the only reasoned opinion, wrote:9
"In my judgment, the standard of care that [the employee] was obliged to show in these
circumstances was that which is to be expected of a reasonably competent driver unaware that he is
or may be suffering from a condition that impairs his ability to drive. To apply an objective standard in
a way that did not take account of [the employee's] condition would be to impose strict liability. But
that is not the law.'
As this passage makes clear, Leggatt LJ held that the reasonable person should be imputed with the
employee's condition. It would be wrong, he held, to apply a strict objective standard.
In Dunnage Rafferty LJ briefly summarised the gist of the decision in Mansfield but did not engage
further with it.10 Apparently, her Ladyship thought that Mansfield was not on point. Vos LJ did not
mention Mansfield. Arden LJ sought to distinguish Mansfield. Her Ladyship wrote that the situation in
Dunnage was:11
"far removed from the case of a driver who gets into his car or lorry cab mentally and physically fit for
the journey but then has an unforeseen episode during the journey which causes him to lose control
of the vehicle. It cannot be said that he was negligent because he was acting with due care when he
started to drive. This was the situation in Mansfield v Weetabix … [T]here is no parallel between
Mansfield and this case because [the defendant in Dunnage] was never in possession of the petrol
can and lighter in the claimant's flat in circumstances when he had performed his duty of care.'
This passage reveals that Arden LJ misunderstood the key issue in Mansfield. Her Ladyship thought
that Mansfield was a case about the absence of prior fault.12 She believed that the reason that the
employee in Mansfield was not liable was that no fault could be imputed to him in respect of his
conduct prior to his becoming disabled. It is true that the employee was not guilty of prior fault.13 But
this was not the focus of the court's reasons in Mansfield. The question with which the court in
Mansfield grappled was whether the employee was required to achieve the standard of the
reasonable unimpaired driver at the time of the accident or whether the reasonable person was to be
imputed with his condition. Contrary to what Arden LJ said, the relevant reason why the employee
was not held negligent was not (to use her words) "because he was acting with due care when he
started to drive' but because his infirmity was attributed to the reasonable *P.N. 140 driver with the
result that the employee did not sink below the standard set by that hypothetical driver.
Because Leggatt LJ held that the employee's condition should be imputed to the reasonable person,
the reasons in Mansfield are diametrically opposed to those in Dunnage. Mansfield was binding on

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the court in Dunnage and, consequently, it should have been followed, subject to the familiar
principles regarding the circumstances in which the Court of Appeal can depart from its own
decisions.14 We stress that we are making here solely a point about stare decisis. The issue of
whether the approach endorsed in Mansfield is preferable to that in Dunnage is a different one from
that which we have addressed.

(b) Applying orthodoxy?

The court in Dunnage, in embracing a strict objective approach, thought that it was applying
orthodoxy. Vos LJ considered, as the quote from his reasons set out above indicates,15 that the courts
had unfailingly held that the objective standard of care admits of no exceptions save in relation to
childhood. The same belief is visible in Arden LJ's reasons.16 However, even a brief glance at the
relevant case law and literature immediately reveals that the true situation is very different. The courts
not infrequently attribute to the reasonable person characteristics that are personal to the defendant.
This, of course, is precisely what occurred in Mansfield. To give another well-known example, the
Privy Council in Goldman v Hargrave wrote: "[l]ess must be expected of the infirm than of the
able-bodied … [and the defendant] should not be liable unless it is clearly proved that he could, and
reasonably in his individual circumstances should, have done more.'17 The goal of one of the most
famous articles in the law of torts, albeit concerned with the situation in the United States, was to
enumerate instances where the courts had taken cognisance of the defendant's qualities in
determining the standard of care that he had to meet.18 Treatise writers concur that it is not unusual
for the courts to take account of the defendant's shortcomings.19 It is clear, therefore, that the court in
Dunnage erred in suggesting that the law of negligence has always embraced a purely objective
standard of care. The uniformity in approach that the court perceived simply does not exist.
Consequently, the court was wrong to treat this "uniformity' as supporting its refusal to impute to the
reasonable person the defendant's mental disorder.

*P.N. 141 (c) How strict is the strict objective standard?

As has been discussed, Dunnage promotes a strict objective standard of care. Precisely how strict,
however, is this standard? Consider, for example, the principle that in asking whether the defendant
met the standard of the reasonable person, the reasonable person must be put in the defendant's
shoes.20 Pursuant to this principle, the adequacy of, for example, a motorist's conduct falls to be
judged by reference to the standard of care that the reasonable motorist would have achieved, and a
cardiologist's performance will be compared with the level of care that would have been exercised by
the reasonable cardiologist. It is inconceivable that the court in Dunnage intended to depart from this
basic rule, which is textbook gospel. To at least this limited extent, therefore, the objective standard
will continue to be adjusted in light of defendant's circumstances.
The significance of the fact that the defendant's position is relevant in asking whether the defendant
breached his duty of care should not be underestimated. It has long been recognised that, because of
the looseness of the expression "in the defendant's position', it is inevitable that some personal
features of the defendant will on occasion be considered in determining the reasonable person's
constitution. As John Fleming perceptively observed, the latitude of that expression invites some
allowance for the personal characteristics of the defendant himself.21 The idea is that features
personal to the defendant will sometimes be treated as being part and parcel of the "defendant's
position' and hence taken into account. The foregoing may diminish somewhat the effect of the
position taken in Dunnage in relation to the standard of care.

(d) Children and mentally disordered persons

The court in Dunnage recognised that child defendants should be judged against the standard of the
reasonable person of the same age. In doing so, the court proceeded consistently with a long line of
authority.22 Was the court right to hold that allowances should be made for child defendants but not
for mentally disordered defendants?23 The only attempt of which we are aware that has been made to
explain why children are treated differently from other types of defendant is that of Kitto J in the
decision of the High Court of Australia in McHale v Watson. 24 His Honour supported the special
treatment of children on the ground that it was not truly a departure from the objective standard. The
rule regarding children did not, his Honour argued, involve taking account of a defendant's subjective
qualities because childhood is not something that is idiosyncratic but is a phase of human
development through which everyone passes. Infancy is, in other words, a normal feature of the

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human condition. On this analysis, taking account of the fact that a defendant is a child paradoxically
affirms the objective standard of care.
Kitto J's logic, if it is sound, obviously does not support making a similar exception for mentally
disordered defendants. Because mental abnormality is by definition atypical, *P.N. 142 Kitto J's
analysis does not justify imputing to the reasonable person mental disabilities suffered by the
defendant. However, this does not mean, of course, that it is inappropriate to make allowances for
such defendants. What reasons are there, therefore, for refusing to take cognisance of a mental
disorder from which the defendant suffers? Three reasons were offered by Arden LJ.25 The first
reason, at which Arden LJ perhaps only gestured,26 is that it is fair to hold mentally disordered
defendants to the objective standard of care because such persons will often be aware of their
disability, with the result that they will be deserving of blame if they put themselves in a position
where, because of their disability, they are incapable of taking reasonable care. This is an appeal to
the doctrine of prior fault. Tony Honore# famously and convincingly showed that this line of reasoning,
although compelling in the case of some defendants, does not justify holding all defendants to a pure
objective standard. Honore# observed:27
"It is not true that a person who undertakes a task for which he is not up to scratch need be at fault in
failing to realise this fact. Lack of skill often goes hand in hand with lack of the nous to recognise
one's incompetence. Prior fault can serve to justify only some of the cases in which legal systems
impose liability for lack of competence.'
Honore# was concerned with a hypothetical scenario in which the defendant was of low intelligence.
But his point plainly is valid for all shortcomings from which a defendant might suffer.
Arden LJ's second argument is that being held to a strict objective standard "is no doubt treated in law
as the price [that mentally disordered defendants pay] for being able to move freely within society.'28
This argument was endorsed by the reporters of the Restatement (Second) of Torts. The reporters
wrote: "if mental defectives are to live in the world they should pay for the damage they do… [I]t is
better that their wealth, if any, should be used to compensate innocent victims than that it should
remain in their hands.'29 However, this is pure assertion. Why should mentally disordered defendants
have to pay the price to which Arden LJ refers?30
Arden LJ's last argument is that holding mentally disordered defendants to the objective standard of
care is necessary "for the protection of innocent victims.'31 This is also problematic. It does not explain
why an age-relative standard of care is adopted. If the standard of care were not age-relative, victims
would be better protected. Nor does it explain why priority should be given to the interests of
"innocent victims' as opposed to those of mentally disordered defendants.
For the foregoing reasons, Arden LJ's arguments are unconvincing. Because she was the only
member of the court to consider why mentally disordered defendants should be held to a pure
objective standard of care, it follows that the court failed to justify its refusal to impute to the
reasonable person the defendant's mental disorder. This is not *P.N. 143 to say, of course, that such
refusal is unjustified. This is not the place to attempt to show that mental impairments should not be
imputed to the reasonable person. Instead, we canvass two possible arguments for declining to invest
the reasonable person with such impairments. The first argument is that imputing mental disabilities
to the reasonable person is incompatible with the very concept of the reasonable person. A
reasonable person acts, by definition, for reasons. He is capable of weighing the pros and cons of
given courses of conduct. Persons who are sufficiently mentally disordered lack this ability. It is
difficult to see how one can speak of the reasonable irrational person without contradiction.32 A
second argument is that the standard of the reasonable irrational person is in fact no standard at all
because it would be impossible for any given defendant to sink beneath it. The idea of a standard of
care necessarily implies, it might be said, that it is possible to fall short of it. We have not sought, we
stress, to develop these arguments. We have simply put them on the table for the purposes of future
discussion.

3. Involuntariness
Dunnage confirms that there is a "legal rule excluding negligence liability for involuntary conduct'.33
We will refer to this principle as the "involuntariness rule'. The court found that, on the facts, the
defendant's behaviour was not within the scope of this rule. Critical to the court's conclusion in this
regard was its view that the defendant's "mind, albeit deluded, directed his actions'.34 The court's
treatment of this aspect of the case raises points of significant interest and importance.
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(a) The court's understanding of the involuntariness rule

All three judges in Dunnage indicated that only conduct over which the defendant has no physical
control falls within the scope of the involuntariness rule. Vos LJ gave the example of "a person whose
arm is holding a knife and who is overcome by another forcing him to stab a victim'.35 Such a person,
Vos LJ said, would be exempt from liability by virtue of the involuntariness rule. Further illustrations of
involuntary behaviour (given by Rafferty LJ) included actions done in a state of automatism or while
sleepwalking.36 The court indicated that an absence of rational control would not enliven the
involuntariness rule. Rafferty LJ, quoting from Hughes LJ's reasons in Coley v R, 37 said that
""Involuntary" is not the same as "irrational"; indeed it needs sharply to be distinguished from it.'38
Arden39 and Vos LJJ40 made similar remarks. Accordingly, the fact that the defendant in Dunnage
lacked rational control was irrelevant. He was not within the ambit of the involuntariness rule.
Two important points arise from the way in which the court phrased the involuntariness rule. First, the
court's articulation of the rule collides with assertions made by all three judges in Dunnage that, in
principle, mental illness should not be treated *P.N. 144 differently from physical illness.41 The frank
inconsistency in the court's reasons in this regard is unexplained and puzzling. A second point
concerns the narrow scope that the court gave to the involuntariness rule. Counsel for the defendant
in Dunnage had suggested that the rule should be drawn so that it is enlivened where the defendant
lacks "free will'.42 This broader approach would embrace the absence of rational control. Some
support for it can be found in the case law. In Corr v IBC Vehicles Ltd 43 the House of Lords
considered whether a claimant who had committed suicide as a result of depression that had been
triggered by negligently inflicted physical injuries was guilty of contributory negligence. For reasons
that are presently irrelevant, the House ultimately did not decide that issue. However, it is noteworthy
that Lord Neuberger spoke of the possibility of a case in which an individual's "will and understanding'
is "so overborne by his mental state … that there could be no question of any real choice on his part
at all'.44 The implication is that had the claimant suffered from a mental disorder that had this effect,
he would not be guilty of contributory negligence. This perhaps suggests that mentally disordered
defendants should be treated as acting involuntarily where their disorder is sufficiently severe.45

(b) The merits of the court's definition of the involuntariness rule

It is unclear whether the court in Dunnage was correct to distinguish between rational and physical
control for the purposes of the involuntariness rule. If the normative significance of involuntary action
lies in the fact that the defendant "could not help it', as we suppose it does, does it matter precisely
why the defendant could not have done otherwise?46 Vos LJ sought to defend the court's approach.
His Lordship said: "it is a matter of regret that even the most intelligent in our society sometimes do
act irrationally. Nobody would suggest that they should be excused from liability for their negligence
whilst so acting.'47 However, this example is clearly misplaced. A definition of involuntariness that
extends to a lack of rational control would not exculpate "intelligent members of society' (by which Vos
LJ presumably means normal (ie, not mentally ill) members of society) who act unreasonably because
such persons do not lack rational control. A second justification suggested by Vos LJ for the court's
definition of involuntariness rule is that it "avoids the need for medical witnesses to become engaged
with difficult and undefined terms such *P.N. 145 as volition, will, free choice, consciousness,
personal autonomy and the like'.48 However, such efficiency-based arguments are unsatisfying. This
is because they do not explain why cost savings should be made at the expense of a given
defendant. The court's reasons, fail to rationalise the narrow definition of "involuntariness' that the
court espoused.

(c) The involuntariness rule and the structure of the tort of negligence
An important question presented by Dunnage is how the involuntariness rule operates within the
structure of the tort of negligence. There are several possibilities. First, the involuntariness rule might
be a freestanding element of the tort. Second, the involuntariness rule might not be an independent
element of the action in negligence but might preclude one or more separate elements of the action
from being satisfied. For example, it might be the case that when the involuntariness rule is enlivened,
the defendant will not be in breach of his duty of care. Finally, the involuntariness rule may function as
a defence. By "defence' we mean a doctrine that prevents liability from arising even though all of the
elements of the tort in question are satisfied.49
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It is important to note that not all of these possibilities are mutually exclusive. If, for example, the
involuntariness rule is a freestanding element of the cause of action, it is possible that behaviour that
enlivens it might also negate the existence of one or more of the other elements of the action in
negligence. The same is true if the involuntariness rule is a defence. However, it is difficult to see how
the law could coherently permit the involuntariness rule to operate as a freestanding element of the
action in negligence and as a defence. Permitting the same rule to feature as a freestanding element
of a cause of action and as a defence would be duplicative.
The aim of this section is to consider how the involuntariness rule, as defined by Dunnage, fits within
the structure of the action in negligence.50 It is important to determine how the involuntariness rule
relates to the action in negligence if that action is to be understood. Unless the nature of the
connection between the involuntariness rule and the action in negligence is ascertained, it is
impossible to know of how many elements that action is comprised. The discussion here also has
practical implications. If, for example, the involuntariness rule is either a freestanding element of the
action in negligence or negates one of the other elements of the action, it should fall, in accordance
with conventional principles, to the claimant to prove that the defendant acted voluntarily. Conversely,
if the involuntariness rule operates as a defence, it ordinarily would be for the defendant to establish
that he was within the scope of the rule.

*P.N. 146 (i) An independent element of the tort of negligence?

One way of understanding the involuntariness rule is as a discrete element of the tort of negligence.
On this analysis, the action in negligence is complete if and only if the defendant did not act
involuntarily. Some support for conceptualising the involuntariness rule in this way can be drawn from
Arden LJ's reasons in Dunnage. Her Ladyship treated the rule as independent of and falling for
determination prior to the issue of whether the defendant breached his duty of care.51 This is
consistent with construing the rule as a freestanding element of the action in negligence. Conversely,
this approach to the involuntariness rule is hard to reconcile with Vos LJ's reasons. Vos LJ, following
Clerk & Lindsell on Torts, 52 considered the action in negligence to consist of the following elements:53
"(1) the existence in law of a duty of care situation i.e. one in which the law attaches liability to
carelessness…
(2) breach of the duty of care by the defendant, i.e. that he failed to measure up to the standard set by
the law;
(3) a causal connection between the defendant's careless conduct and the damage;
(4) that the particular kind of damage to the particular claimant is not so unforeseeable as to be too
remote.'
The fact that the involuntariness rule does not feature in this list54 militates against understanding the
rule as an independent element.

(ii) The "no duty' approach

The trial judge in Dunnage gave judgment for the defendant on the basis that, in his view, the
defendant had acted involuntarily. He said that "no one… is subject to a duty of reasonable care in
respect of acts he could not… control'.55 This approach treats the involuntariness rule not as a
freestanding element but as striking at the duty of care. Some support for understanding the
involuntariness rule in this way might be found in the fact that a duty of care is often defined as an
obligation to "take reasonable care to avoid [certain] acts or omissions '.56 If, involuntary behaviour is
not conduct at all,57 arguably one can incur no duty of care as regards such behaviour.
*P.N. 147 The court in Dunnage firmly rejected the suggestion that the defendant did not owe the
claimant a duty of care. Vos LJ wrote: "the primary question is not whether the [defendant] owed the
claimant a duty of care not carelessly to injure him. He obviously did.'58 None of the members of the
Court of Appeal gave reasons for rejecting the trial judge's analysis in this regard. They just stipulated
that it was wrong. The important thing to note for present purposes, however, is that simply because a
duty of care was held to exist in Dunnage does not exclude the possibility that the involuntariness rule
operates by denying the existence of a duty of care. This possibility remains open given the court's
conclusion that the defendant did not act involuntarily.
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(iii) The "no breach' approach

The involuntariness rule can be interpreted as striking at the breach element of the action in
negligence. This approach finds considerable support in the case law.59 It was endorsed in Dunnage
by Vos LJ60 and (less explicitly) Rafferty LJ.61 However, the precise route by which the "no breach' or
"no fault' conclusion is reached where the involuntariness rule is enlivened remains unclear. There
are two ways in which the involuntariness rule might attack the breach element. The first possibility is
as follows: (1) a breach of duty is defined as conduct falling below the standard of care that would
have been achieved by the reasonable person; (2) where the involuntariness rule is enlivened, there
is no conduct; (3) therefore, the breach element cannot be satisfied where the involuntariness rule
has been triggered. An alternative way of understanding the breach element as being negated by the
involuntariness rule is to regard a defendant who falls within the scope of that rule as not having acted
unreasonably. The idea, on this way of looking at things, is that a defendant who causes damage the
claimant as a result of, say, a reflex action or as a result of blacking out suddenly while driving, has
not done anything faulty. The second analysis is difficult, if not impossible, to square with the court's
conclusion in Dunnage that conditions that produce involuntary behaviour are not to be attributed to
the reasonable person. It is worth observing that the Restatement (Third) of Torts: Liability for
Physical and Emotional Harm understands involuntariness as preventing the breach element from
being satisfied on the ground that the defendant has not done anything unreasonable. The reporters
write:62
"Sudden incapacitation can be caused by a heart attack, a stroke, an epileptic seizure, diabetes, or
other medical conditions. A typical case is sudden incapacitation that causes a driver to lose control
of the car. This is distinctly dangerous and substandard driving which, absent the incapacitation,
would easily merit a finding of negligence. Even so, when the incapacitation is itself *P.N. 148
unforeseeable, it follows that no reasonable precautions were available to the driver that could have
avoided the risk of harm.'

(iv) The involuntariness rule as a defence

It would be possible to understand the involuntariness rule as operating as a defence. It is sometimes
suggested that this is how the criminal law proceeds.63 Traces of support for analysing the
involuntariness rule in this way in the tort law context exist in Dunnage. Rafferty LJ indicated that it
was for a defendant "to establish that his condition entirely eliminates his responsibility'.64 By virtue of
the fact that defendants carry the onus of establishing defences, this passage perhaps suggests that
the involuntariness rule should be conceptualised as a defence.65 Whether or not this is so depends,
however, on whether one thinks that the way in which the onus of proof is allocated in respect of a
given rule determines whether a rule is a defence or whether it is a consequence of its being a
defence.66

(v) Conclusion
We have considered in this part of this article how the involuntariness rule fits within the structure of
the tort of negligence. Various ways of understanding the rule have been canvassed. Support for
several of these options can be discerned from the court's reasons in Dunnage. Partly for this reason,
the way in which the rule functions to prevent liability from arising remains obscure. This situation is
unsatisfactory. It is unknown, for example, whether the rule is a separate ingredient of the tort of
negligence. Also, because the way in which the rule operates has been left unclear, it is unknown
which party carries the onus of proof in respect of it, it generally being thought that rules that deny the
existence of an element of the tort in which the claimant sues are for the claimant to negate while
defences are for the defendant to establish.
How should the involuntariness rule prevent liability from arising? Our tentative view is that it should
operate either as a freestanding element or as a defence. Although the court in Dunnage did not say
so, it seems clear that the involuntariness rule applies throughout the law of torts. If this is the case,
things will be kept significantly simpler if the rule operates in the same way regardless of the cause of
action in which it is invoked.67 An approach which is specific to a given tort (such as construing the
involuntariness rule as pertaining to the duty of care element of the action in negligence) would be
unnecessarily complex. It would mean that authorities pertaining to the involuntariness *P.N. 149 rule
in the negligence context could not be applied easily in relation to other torts, such as trespass.
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Conversely, if the involuntariness rule is understood as striking at an element that is common to all
torts, or as a defence that applies across the board, the generality of the law in this area would be
greatly increased.

4. The tort/crime interface: separation or fusion?

There are two broad ways of understanding the relationship between tort law and the criminal law.
According to one view, the two areas of the law are fundamentally distinct from each other. This
position will be called the "separation thesis'. Pursuant to this thesis, tort law and the criminal law are
kept within hermetically sealed compartments (and, on one variation of the thesis, this split between
tort law and the criminal law should be maintained). The other view perceives tort law and the criminal
law as highly interconnected. We will refer to the latter opinion as the "fusion thesis'. Proponents of
the fusion thesis often contend for greater integration of tort law and the criminal law.
Dunnage is noteworthy for the support lent in it to the separation thesis. It emerges from Rafferty LJ's
opinion that that the court heard extensive submissions regarding criminal law concepts. Rafferty LJ
plainly found the submissions in this regard to be unhelpful. Her Ladyship suggested that criminal law
concepts had no place in the law of torts.68 Her Ladyship wrote:69
"The task for this court is in my view less stratified than submissions tended to suggest. First, a
comparison of criminal with civil defences. Liberty of the subject imports a particularity of approach of
no jurisprudential relevance let alone of any assistance when the issue is tortious liability. If that were
not enough to dispose of the topic, the outcome in the criminal courts is. Reliance on the McNaghten
Rules if "successfully" advanced results in a verdict of not guilty by virtue of insanity but the
disposition of the accused is generally far from welcome to him or her.'
This endorsement of the separation thesis is as robust as can be found in the case law.70
What does academic opinion have to say about the separation and fusion theses? The separation
thesis is firmly embraced by Jules Coleman. Coleman argues that that "[t]he differences between torts
and the criminal law are so fundamental that the net result of applying one's understanding of the
criminal law to torts is bad philosophy and total confusion.'71 Coleman is certainly not alone among
scholars in accepting the separation thesis, although the fusion thesis now appears to have more
proponents. For example, Tony Honore# writes: "Tort law and criminal law have common features.
*P.N. 150 Each aims to eliminate or reduce undesirable behavior, each provides for sanctions to be
imposed on those whose conduct is undesirable, and each poses difficult questions about the
conditions for imposing sanctions and the extent of liability of wrongdoers.'72 This understanding
chimes with the fusion thesis. More recently Graham Virgo has launched a blistering attack on the
separation thesis. Virgo contends that criminal law and tort law should prima facie march in step with
each other.73 He contends that "It is appropriate for those working on different sides of the frontier to
have regard to what is being done on the other side.'74
This is not the place to lock horns with the separation/fusion debate. Serious treatment of it would
require far more space than is available. Instead, we confine ourselves to considering Rafferty LJ's
reasons for embracing the separation thesis. It is convenient to take the second of the reasons that
her Ladyship offered first. Her Ladyship observed that criminal law defendants would often not
welcome the special verdict of not guilty by reason of insanity. That obviously is true75 but we fail to
see the relevance of this. It is doubtful that this fact about the special verdict provides the separation
thesis with any support. Rafferty LJ's first reason in support of the separation thesis concerns
differences between criminal law and civil law defences.76 We confess to having had considerable
difficulty grasping precisely what her Ladyship had in mind in this connection, and what follows is our
best attempt to describe what we think that she meant. Rafferty LJ appeared to think that concerns
regarding the liberty of the subject had led to a difference "in approach' to criminal law defences and
tort law defences, such concerns having salience in criminal law but not in tort law. Rafferty LJ did
not, however, canvass any doctrinal distinctions in the law in this regard that the postulated difference
"in approach' had produced. Contrary to Rafferty LJ's apparent position, we think that a comparison of
criminal law and civil law defences tends to count against the separation thesis. Many defences
obviously apply in both the criminal law and tort law (such as self-defence, necessity and arrest, to
name a few). Moreover, many defences are defined in exactly the same way in both domains.
Consider, for example, s 3(1) of the Criminal Law Act 1967. The defence for which this subsection
provides is enlivened where a defendant uses force to prevent crime.77 It applies both in the criminal
law and civil law.78 Another example is that of consent. The doctrine of consent is an answer to
 Page9

liability throughout both the law of torts and the criminal law *P.N. 151 (although, as is well known,
the doctrine is ineffective at precluding criminal liability from arising in respect of actual bodily harm79
(subject to exceptions)). Examples such as these (which could easily be multiplied many times over)
prompted Graham Virgo to claim (correctly, in our view) that "defences are generally defined in the
same way, regardless of whether they are being deployed in the criminal or civil law'.80 It is not, of
course, being suggested that there are no differences of note between criminal law and tort law
defences. Such a contention would be plainly wrong (indeed, we mention a major difference in the
next section of this article). Our point is simply that it is doubtful that concerns regarding "liberty of the
subject' actually have caused the courts to approach criminal law defences in a way that is distinct
from how they have proceeded in relation to tort law defences.
Rafferty LJ, proceeding in the thrall of the separation thesis, thought that criminal law principles
should be put to one side in determining the appeal in Dunnage. They were perceived as being (at
best) an unhelpful distraction. For the reasons that we have given, Rafferty LJ did not, in our opinion,
come even close to making out a compelling case in support of her conclusions in this regard. Ex
abundanti cautela, we stress that we have not endeavoured to show that the separation thesis is false
(that being a task that clearly would be unmanageable in the space available to us). Our only goal has
been to put Rafferty LJ's reasons in support of that thesis to proof. They have been found wanting.

5. A defence of insanity?
An important difference between tort law and the criminal law is that the criminal law admits insanity
as a defence81 whereas tort law, according to the preponderance of the authority, does not,82 although
relevant cases in England are few and far between.83 One noteworthy feature of the decision in
Dunnage is that none of the members of the court addressed whether tort law should provide for an
insanity defence. This is rather surprising given that the mental illness from which the defendant in
Dunnage suffered presumably would have been sufficient to render him insane for the criminal law's
purposes. Dunnage strikes us as a missed opportunity to consider whether tort law ought to fall into
line with the criminal law and recognise a defence of insanity.
*P.N. 152 This is not the place to consider whether tort law should admit insanity as a defence. That
is a complex question that has generated an extensive literature.84 Instead, two brief points will be
made. First, it is possible that the court's support for the separation thesis in Dunnage may explain
why it did not consider the possibility that a defence of insanity should be introduced into tort law: the
defence of insanity is a criminal law rule, and there is no reason, according to the separation thesis,
for tort law to mirror the criminal law's position.85 Second, although the point was not addressed in
Dunnage, the court's decision probably nonetheless lends weight to the conventional view that
insanity is not a tort defence.

6. Conclusion
Dunnage is an important decision. It provides decisive support for a strict objective approach to the
breach element of the action in negligence. In so holding, the court distanced itself from its earlier
decision in Mansfield. Dunnage is also significant in that it is one of the few decisions to give much of
a clue as to tort law's stance in relation to involuntary behaviour on the part of defendants. The
decision implicitly supports the conclusion that insanity is not a tort defence. This article has offered
an analysis of these and other aspects of the decision in Dunnage, and has sought to tease out the
implications of the case. It has been argued that in many respects the court's decision is unsatisfying.
The reasons that the court offered for adopting a strict objective approach to the breach element do
not withstand scrutiny. The court defined the involuntariness rule narrowly and so as to exclude
rationally involuntary behaviour from the rule's scope, but did not really explain why it should matter
whether the cause of a given actor's involuntary behaviour was physical or mental. The precise way in
which the involuntariness rule prevents liability from arising in the tort of negligence was left unclear.
Finally, the court declined to consider whether insanity should be recognised as a tort defence. While
it appears that the parties may not have addressed that question, the point merits consideration. It is
yet to receive sustained treatment by an English court.
James Goudkamp and Melody Ihuoma%N%67%N
P.N. 2016, 32(2), 137-152
 Page10

1. [2015] EWCA Civ 673.

2. Ibid at [110].

3. Ibid at [2].

4. Ibid at [105].

5. The trial judge's decision is neither reported nor electronically available. The only information known about it is that
given in the Court of Appeal's reasons.

6. One newspaper reported that the claimant was consequently awarded £1m in damages: "Hero left with horrific burns
trying to save uncle from setting himself on fire wins £1m compensation', Daily Mirror, 5 October 2015
(http://www.mirror.co.uk/news/uk-news/hero-left-horrific-burns-trying-6577123) (accessed 10 November 2015).

7. [2015] EWCA Civ 673 at [130]. See also at [152]-[153] per Arden LJ.

8. [1998] 1 WLR 1263 (CA).

9. Ibid at 1268.

10. [2015] EWCA Civ 673 at [48].

11. Ibid at [147].

12. The doctrine of prior fault prevents a defendant from taking refuge in the fact that he could not prevent damage from
occurring at the time that the damage was caused if he was negligent at some earlier point in time. A paradigmatic
example of a case where the doctrine would be enlivened concerns a driver who negligently disregards a warning by
his doctor not to drive because of a heart condition from which he suffered and who is then disabled by that condition
while driving. The fault in this example lies in the driver's decision to drive in the first place: consider C (a child) v
Burcombe [2003] CLY 3030 (CC).

13. Expressly stated by Leggatt LJ: [1998] 1 WLR 1263 (CA) at 1265.

14. "[The Court of Appeal] is justified in refusing to follow one of its own previous decisions not only where that decision is
given in ignorance or forgetfulness of some inconsistent statutory provision or some authority binding upon it, but also,
in rare and exceptional cases, if it is satisfied that the decision involved a manifest slip or error': Rickards v Rickards
[1990] Fam 194 (CA) at 203 per Lord Donaldson of Lymington MR.

15. See the text accompanying n 7, above.

16. [2015] EWCA Civ 673 at [152].

17. [1967] 1 AC 645 (PC (Aust)) at 663.

18. Warren Seavey, "Negligence - Subjective or Objective?' (1927) 41 Harvard Law Review 1. Seavey's conclusion was
that (at 27): "there is no standardized man; that there is only in part an objective test; that there is no such thing as
reasonable or unreasonable conduct except as viewed with reference to certain qualities of the actor - his physical
attributes, his intellectual powers, probably, if superior, his knowledge and the knowledge he would have acquired had
he exercised standard moral and at least average mental qualities at the time of action or at some connected time.'

19. "[T]he physically handicapped is judged by the standard of what can be expected from a reasonably prudent person
suffering from his disability' (John Fleming, The Law of Torts (9th edn, Sydney, Law Book Co, 1998) at p 125);
"Occasionally, the court take account of the defendant's subjective qualities' (WE Peel and James Goudkamp, Winfield
& Jolowicz on Tort (19 th edn, London, Sweet & Maxwell, 2014) at p 146 [6-010]). For a recent and insightful
contribution on this point, see Donal Nolan, "Varying the Standard of Care in Negligence' (2013) 72 CLJ 651 at pp
655-66.

20. For discussion, see Peel and Goudkamp (n 19) at p 146 [6-008].

21. Fleming (n 19) at p 119.

22. See, eg, McHale v Watson (1966) 115 CLR 199 (HCA); Mullin v Richards [1998] 1 WLR 1305 (CA); O v L [2009] EWCA
Civ 295; The Times, 14 April 2009.

23. The Restatement (Third) of Torts: Liability for Physical and Emotional Harm, § 11(c) evidently sees a connection
between disability and childhood. This section states: "An actor's mental or emotional disability is not considered in
determining whether conduct is negligent, unless the actor is a child.'

24. (1996) 115 CLR 199 (HCA) at 213-14.

25. [2015] EWCA Civ 673 at [153].

 Page11

26. Ibid.

27. Tony Honore#, "Responsibility and Luck: the Moral Basis of Strict Liability' (1998) 104 LQR 530 at 536.

28. [2015] EWCA Civ 673 at [153].

29. Restatement (Second) of Torts, § 895J, cmt a.

30. See, further, James Goudkamp, "Insanity as a Tort Defence' (2011) 31 OJLS 727 at 749.

31. [2015] EWCA Civ 673 at [153].

32. For development of this point, see Goudkamp (n 30) at 753.

33. [2015] EWCA Civ 673 at [141].

34. Ibid at [145] per Arden LJ, [135] per Vos LJ, [115]-[116] per Rafferty LJ.

35. Ibid at [132].

36. Ibid at [115].

37. [2013] EWCA Crim 223; [2013] Crim LR 923 at [22].

38. [2015] EWCA Civ 673 at [112].

39. Ibid at [145].

40. Ibid at [135].

41. Ibid at [104] per Rafferty LJ, [134] per Vos LJ and [159] per Arden LJ.

42. Ibid at [99].

43. [2008] UKHL 13; [2008] 1 AC 884.

44. Ibid at 918 [65] (emphasis added). Lord Scott and Lord Walker perhaps also considered that a mental illness might
result in the defendant acting involuntarily. See ibid at 909 [31] and 912 [42] respectively.

45. Consider, too, Buckley v Smith Transport Ltd [1946] 4 DLR 721 (Ont CA) at 728. Roach JA said that in determining
whether an act is "the conscious act of a defendant's volition' it was necessary to ask whether "the individual's mind has
become so deteriorated or dilapidated or disorganized that he has neither the ability to understand the duty nor the
power to discharge it'. In the criminal law, conduct may be "involuntary' both if it results from insanity (a disease of the
mind), and not solely if it is physically involuntary: Bratty v Attorney General of Northern Ireland [1963] AC 386 (HL) at
410 ("if the involuntary act proceeds from a disease of the mind, it gives rise to a defence of insanity, but not to a
defence of automatism … such an act is no doubt involuntary, but it does not give rise to an unqualified acquittal').

46. Consider WVH Rogers, "Fault under English law' in Pierre Widmer (ed), Unification of Tort Law: Fault (The Hague,
Kluwer Law International, 2005) at p 72 ("it seems philosophically wrong to impose on a person who cannot control his
actions a liability which is philosophically based on individual responsibility; and there is arguably no difference in this
respect between a person in, say an advanced stage of Alzheimer's disease and one who suffers a sudden,
unexpected heart attack, whom we excuse without hesitation') (footnote omitted).

47. [2015] EWCA Civ 673 at [135].

48. Ibid at [133].

49. For further discussion, see James Goudkamp, Tort Law Defences rev edn, (Oxford, Hart Publishing, 2016) at pp 41-47.

50. In contrast with tort theorists, criminal law commentators have addressed the concept of involuntariness very
extensively. Criminal law scholars are divided as to how, precisely, involuntariness precludes criminal responsibility.
Paul H Robinson, Criminal Law Defenses vol 1 (St Paul, Minn, West Publishing Co, 1984) at pp 93-94 suggests that
involuntariness is a defence. However, Robinson also writes that involuntariness can prevent the actus reus and/or
mens rea from being constituted: at vol 2, at pp 263-64. Andrew Ashworth and Jeremy Horder seem to understand the
involuntariness rule as constituting a denial of the actus reus: Andrew Ashworth and Jeremy Horder, Principles of
Criminal Law (7th edn, Oxford, Oxford University Press, 2013) at p 87. This is also how involuntariness is
conceptualised by George P Fletcher, The Grammar of Criminal Law (Oxford, Oxford University Press, 2007) at p 267.

51. [2015] EWCA Civ 673 at [149].

52. Michael Jones (ed), Clerk & Lindsell on Torts (21 st ed, London, Sweet & Maxwell, 2014) at p 441 [8-04].

53. [2015] EWCA Civ 673 at [121]. This is not, of course, the only attempt that has been made to articulate the elements of
 Page12

the tort of negligence. The ingredients of this tort have been described in a surprising diversity of ways. For discussion,
see David G Owen, "The Five Elements of Negligence' (2007) 35 Hofstra Law Review 1671.

54. It is interesting to note the several other attempts to isolate the elements of the tort of negligence do not mention a
voluntary act as an element either: see, eg, W P Keeton, Dan B Dobbs, Robert E Keeton and David G Owen (eds),
Prosser & Keeton on Torts, (5th edn, St Paul, Minn, West Publishing Co, 1984) at pp 164-65; Fleming (n 21) at pp
113-16; John CP Goldberg and Benjamin C Zipursky, The Oxford Introductions to US Law: Torts (Oxford, Oxford
University Press, 2010) at p 72.

55. [2015] EWCA Civ 673 at [15].

56. Donoghue v Stevenson [1932] AC 562 (HL) at 580 (emphasis added).

57. The idea that involuntary behaviour is not conduct is endorsed in several passages in Dunnage: [2015] EWCA Civ 673
at [115] per Rafferty LJ, [127] per Vos LJ.

58. Ibid at [122] per Vos LJ. See also at [109] per Rafferty LJ, [149] per Arden LJ.

59. See, eg, Dessaint v Carriere (1958) 17 DLR (2d) 222 (Ont CA) at 225; Waugh v James K Allen (1964) SC (HL) 102 at
106.

60. [2015] EWCA Civ 673 at [131].

61. Rafferty LJ suggested that the only issue in Dunnage was that of breach. Her Ladyship wrote (at [109]): "The issue is
simply whether, unwell as [the defendant] was, he breached [his duty]…'. Her subsequent discussion of the
involuntariness rule suggests, therefore, that she saw it as pertaining to the breach element. See also Restatement
(Third) of Torts: Liability for Physical and Emotional Harm, § 11(b). This rule provides: "The conduct of an actor during a
period of sudden incapacitation or loss of consciousness resulting from physical illness is negligent only if the sudden
incapacitation or loss of consciousness was reasonably foreseeable to the actor'.

62. §11(b) cmt d.

63. See n 50, above.

64. [2015] EWCA Civ 673.

65. Consider also Neill J's remark in Roberts v Ramsbottom [1980] 1 WLR 823 (QBD) at 831 that "a defendant may be able
to rebut a prima facie case of negligence by showing that a sudden affliction has rendered him unconscious or
otherwise wholly incapable of controlling the vehicle'.

66. For development of this point, see Andrew Dyson, James Goudkamp and Frederick Wilmot-Smith, "Central Issues in
the Law of Tort Defences' Andrew Dyson, James Goudkamp and Frederick Wilmot-Smith (eds), Defences in Tort
(Oxford, Hart Publishing, 2015) at pp 3-4.

67. The analysis here has been influenced by the discussion in Hall v Hebert [1993] 2 SCR 159 at 183-185. In this case
McLachlin J argued that the illegality doctrine should function as a defence rather than as a denial of the existence of a
duty of care. Her Honour was of this view (partly) because conceptualising the doctrine in this way would ensure that
different approaches would not be required for different torts, whereas treating the doctrine as attacking the duty of care
element would have created an approach to it that was specific to the action in negligence, that being the only tort that
contains as one of its elements a duty of care.

68. Rafferty LJ may have been influenced in this regard by Leggatt LJ's remark in Mansfield that "consideration of criminal
cases can only introduce confusion': [1998] 1 WLR 1263 (CA) at 1266.

69. [2015] EWCA Civ 673 at [103]. This passage was echoed by Vos LJ at [128]. His Lordship complained about the range
of terminology that counsel had employed and remarked: "These formulations emanate variously from the M'Naghten
rules applicable to insanity as a defence in the criminal law, the defence of automatism in the criminal law, and from
elsewhere. I can say at once that I do not find them helpful in deciding the case that we have here.'

70. Oddly, given the passage that has just been set out, Rafferty LJ made use of criminal law authorities later in her
reasons: see at [112].

71. Jules L Coleman, Risks and Wrongs (Cambridge, Cambridge University Press, 1992) at p 222.

72. Tony Honore#, "The morality of tort law--questions and answers' in David G Owen (ed), Philosophical Foundations of
Tort Law (Oxford, Clarendon Press, 1995) at p 74.

73. Graham Virgo, ""We do this in the criminal law and that in the law of tort": a new fusion debate' in Erika Chamberlain,
Jason Neyers and Stephen Pitel (eds), Tort Law: Challenging Orthodoxy (Oxford, Hart Publishing, 2013) 95.

74. Ibid at 117.

75. For penetrating analysis as to the range of reasons why defendants might not welcome the special verdict, see John
Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (Oxford, Oxford University Press,
 Page13

2007) ch 9.

76. Regarding the differences between tort law and criminal law defences generally, see James Goudkamp, "Defences in
Tort and Crime' in Matthew Dyson (ed), Unravelling Tort and Crime (Cambridge, Cambridge University Press, 2014) ch
8.

77. The subsection provides: "A person may use such force as is reasonable in the circumstances in the prevention of
crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at
large.'

78. For recent illustrations of this defence being invoked in civil law, see Browne v The Commission of Police of the
Metropolis [2014] EWHC 3999 (QB); NTC v The Commission of Police for the Metropolis [2015] EWHC 1432 (QB);
McDonnell v The Commission of Police for the Metropolis [2015] EWCA Civ 573.

79. See, esp, R v Brown [1994] 1 AC 212 (HL). It is possible that the same limitation applies to the tort version of the
doctrine of consent (cf Bain v Altoft [1967] Qd R 32 (SC) at 41), although the point has not been authoritatively
determined.

80. Virgo (n 73) at p 104. Virgo is speaking with reference to self-defence, but since many defences are mere variations of
the doctrine of self-defence, Virgo would presumably extend this claim to a large network of defences.

81. Criminal Procedure (Insanity) Act 1964, s 1.

82. The foundational decision in England concerning insanity is Weaver v Ward (1616) Hob 134; 80 ER 284. It is analysed
in Gary Schwartz, "Weaver v Ward' (1996) 74 Texas Law Review 1271. Subsequent cases in which it has been held
that insanity is not a tort defence include Donaghey v Brennan (1990) 19 NZLR 289 (CA); Tindale v Tindale [1950] 4
DLR 363 (BCSC); Morris v Marsden [1952] 1 All ER 925 (QBD); Beals v Hayward [1960] NZLR 131 (SC); Adamson v
Motor Vehicle Insurance Trust (1957) 58 WALR 56 (SC); Carrier v Bonham [2001] QCA 234; [2002] 1 Qd R 474. See,
further, James Goudkamp (n 30).

83. "There is very little case law on the tort liability of "abnormal" persons': Rogers (n 46) at p 71.

84. See, eg, W G H Cook, "Mental Deficiency in Relation to Tort' (1921) 21 Columbia Law Review 333; Francis H Bohlen,
"Liability in Tort of Infants and Insane Persons' (1924) 23 Michigan Law Review 9; George J Alexander and Thomas S
Szasz, "Mental Illness as an Excuse for Civil Wrongs' (1967) 43 Notre Dame Law Review 24; James W Ellis, "Tort
Responsibility of Mentally Disabled Persons' [1981] American Bar Foundation Research Journal 1079; Stephanie I
Splane, "Tort Liability of the Mentally Ill in Negligence Actions' (1983) 93 Yale Law Journal 153; Law Reform
Commission of Ireland, Report on the Liability in Tort of Mentally Disabled Persons Report 18 (Dublin, Law Reform
Commission of Ireland, 1985); Patrick Kelley, "Infancy, Insanity, and Infirmity in the Law of Torts' (2003) 48 American
Journal of Jurisprudence 179; Goudkamp (n 30).

85. See Part 4, above.

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