YIM TAT FAI BY HIS NEXT FRIEND YIM SHUI HUNG v. THE ATTORNEY GENERAL

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JUDGMENT

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1. On the 9th of August 1978 YIM Tat-fai, a boy then aged 19 hung himself by his shirt in the cells of Chai Wan Police Station whilst he was waiting to be bailed out for an offence for which he had been arrested the night before, and charged with less than an hour previously. That he was attempting to take his own life is not disputed by the Defendant and in my judgment is a likely inference on the evidence; he was found hanging by the Duty Officer in charge of the cells, and instantly cut down, and promptly given artificial respiration by the same officer so that his life was undoubtedly saved.

2. But YIM Tat-fai had lost consciousness and the lack of oxygen to his brain has caused irreparable harm thereto; he has virtually recovered physically, but his personality changes and mental state are such that he will require constant supervision and, until the end of 1985, he had been detained in Castle Peak Hospital.

3. YIM Tat-fai now brings this action against the Attorney General on behalf of the Royal Hong Kong Police alleging that, aware that he had suicidal tendencies the Commissioner of Police negligently allowed him to attempt or, failed to prevent him from attempting, suicide, claiming damages for his injuries and the attendant expense.

4. But YIM Tat-fai is not mentally fit to conduct these proceedings and so they are brought by his father YIM Shui-hung, suing as his next friend and it is entirely on the father's evidence that this case is founded, for the father (as I shall call YIM Shui-hung) says that it was from police officers that he learnt that whilst in custody his son, whom I shall now call "the Plaintiff", had expressed suicidal tendencies of which he was previously unaware, to the police.

The Case in outline

5. The Plaintiff had been arrested at 2055 hours on 8th August 1978 at Shek 0, removed to Chai Wan Police Station and then taken at 0245 hours that night to North Point Police Station for overnight detention; from there he was taken out next morning, the 9th August to assist in further enquiries regarding recovery of parts of the bicycle which he was alleged to have stolen. Later on in the morning of 9th August he was brought back to Chai Wan and then formally charged at 1215 hours on 9th August 1978. The charging process was completed at 1238 hours and the C.I.D. then released him to the care of the Duty Officer in the Uniformed Branch at Chai Wan. That officer put him into cell No. A1, alone, at 1248 hours to await the father's arrival to bail the Plaintiff out. At 1315 hours that day the same Duty Officer, making his routine cell inspection, found the Plaintiff hanging by his shirt from overhead pipes, and with assistance from his "Tai Iau", the Assistant Duty Officer, he cut doom the Plaintiff, applied artificial respiration and called an ambulance, which arrived at 1340 hours.

6. There is no dispute on these times, so that the Plaintiff was alone in a cell awaiting his father's arrival to bail him out from 1248 hours until he was discovered hanging, 27 minutes later.

7. He had been in police custody for almost 16 hours and it is the events of and conversations during those 16 hours upon which this case hinges.

The background as I find it on the evidence

8. The Plaintiff's work and immediate background are shrouded in mystery, and I think it fair to say tainted with a lack of family stability. He was born on 19th December 1958. In 1974 when the Plaintiff was 15 the father separated from the Plaintiff's mother and the father went to stay with his own sister. The Plaintiff stayed at the family residence with the mother, who later left herself, and then, on hearing that the Plaintiff was alone, the father says he returned to the family home to keep the Plaintiff company, but that can only have been a short lived stay, since the father himself left for Canada in 1974, to further his own education, leaving the Plaintiff alone whilst he should still have been at school. The father was away until 1977 and during that time he had no contact, he says, with the Plaintiff. He says he sent no money directly for the Plaintiff, although he sent money to pay for the rent of the home where the Plaintiff lived; and then, in cross-examination, he agreed that the Plaintiff had left school even before the father had left for Canada. For three years, therefore from the age of 16, this Plaintiff was left to his own devices and resources, and the father was not even aware that the Plaintiff had been in trouble with the police and convicted of wounding, whilst the father was away in Canada. Even on the father's return he did not go straight away to live at the home where the Plaintiff, then coming up to 19 years of age still lived alone; instead he stayed again with his own sister. He agreed in cross-examination that a description of the Plaintiff at that time as "depressed and low in mood" was correct.

9. Sometime between the father's return from Canada in 1977 and the time of this incident in 1978 the Plaintiff and the father started to share the same roof again, but there must have been very little rapport between the father and Plaintiff since the father had no idea what the Plaintiff's job was, nor the name of any of the Plaintiff's many employers which the father said he had.

10. The father and the Plaintiff must therefore have lived very separate lives up to the time immediately before the tragic incident. The father said the Plaintiff for recreation went out hiking, or "for fun", and that he had a girl friend with whom he was not getting on well before the incident. The father said "I felt he was not happy", but he did not discuss the matter with the Plaintiff. I have to say it is strange that the father should know of the fact that the Plaintiff was not getting on well with his girl-friend, when they did not discuss the matter. In any event the father said that before the incident the Plaintiff never gave him the impression he might consider taking his life. He said in evidence that he had last seen the Plaintiff two or three days before the incident when the Plaintiff said he wanted to go camping for a few days. This would have been, he said, on the Saturday or Sunday before the Plaintiff was arrested in the evening of Tuesday 8th August. The father said he could recall no particular conversation apart from saying to the Plaintiff "Go ahead", and that the next thing he heard was at 0230 hours in the early morning of 9th August, when he had a telephone call from a lady saying she was calling from Chai Wan Police Station in connection with a case of theft of a bicycle.

The Plaintiff's Case

11. It is from that conversation that the father says the police were aware, because they told him so, of the Plaintiff's intention to commit suicide, a theme which was to be repeated, he said, in conversation with the same police officer the next day, when he went in the morning to Chai Wan, in an unsuccessful attempt to see the Plaintiff who was out helping with investigations, and later that day with a different officer, when he had telephoned Chai Wan Police Station to see if the Plaintiff was yet ready to be bailed out. In each case, he said, the officer concerned said that the Plaintiff had said he wanted to commit suicide, and in each case the officer wanted to know if the father could indicate the reason.

12. The father says that with this manifest tendency the Plaintiff should have been under constant supervision to prevent him damaging himself and prays in aid Police General Orders which include the following, as a test of the duty of the police at law:

        49-04

        9.

"A duty officer shall arrange continuous watch over:-

The same general orders provides (49-03(2)) that items such as shoe laces, belts, etc., shall be removed from a prisoner before he is placed in a cell, and then General Order 49-04 reads further, at (13)

Then the officer-in-charge of Chai Wan had issued instruction No. 18 of 1978.

Guarding of Prisoners in Chai Wan Police Station

"Duty Officer will cause an unarmed Report Room Reserve to perform cell duty inside the cell corridor. The outer cell door is locked and the key to which is kept by the Duty Officer. Duty Officer will check the cell at 15 minutes interval and an entry is made in the O.B. to that effect. "

That local order really only implements the Police General Order in order to cater for the physical layout of the cells at Chai Wan Police Station.

13. There is with the Plaintiff's bundle of documents a sketch of the cells at Chai Wan, and it is not disputed that the Duty Officer failed to observe both the Police General Order or the local order when he failed to record in the Occurence Book a visit to the cell at 1300 hours, that is to say 12 minutes after the Plaintiff was put into the cell and 15 minutes before he was found, but the officer concerned testified that the interior of the cell is not visible from the Report Room and that he had made such an inspection at 1300 hours and had found the Plaintiff sitting idly on the stone seat of the cell; if that is true the Plaintiff only had 15 minutes thereafter in which to hang himself, if there was no such inspection then he had 27 minutes sitting alone in which to make the attempt. In the end it makes little difference because whilst there was no medical evidence before me to this effect, the fact that the Duty Officer did find the Plaintiff in time to save his life must militate towards a very short period of suspension, and suggests that the Plaintiff's apparent attempt on his life was put into effect only minutes before he was discovered. Whilst that might be stretching the limits of judicial notice, it would not be so to state that a person determined to make an attempt on his life can do so and effectively within minutes, so that a continuous watch as directed by Police General Order 49-04(9) which I have quoted, must in my judgment, to be effective, mean that the prisoner must be kept within the vision of an officer, if he is of suicidal tendencies; he was not so kept. But these are domestic regulations made under the power vested in the Commissioner of Police in that behalf by s.47 of the Police Force Ordinance, to enable the Commissioner to administer the police force. The Police Force Ordinance does not give, and in my judgment is not intended to give, a right of action to the public for breach thereof, such as is existing under for example the Factories Ordinance, and as Devlin, J. (as he then was) said in Ellis v. Home Office and which was approved on appeal (1953) 3 A.E.R. p.150, (dealing with prison rules)

"It was said on behalf of the plaintiff that it was a breach of that rule which led to or was a cause of the injury which befell the plaintiff. I do not think it was so. "

Nor do I, in the present case, even if the police officers knew or as a matter of agency were deemed to know of any suicidal tendencies. That rule cannot affect the standard of care required by law which is to take reasonable care (ibid at p.154(F)).

14. But the Plaintiff says drawing heavily on Anns v. Merton London Borough (1978) A.C., that the duty of care is not limited to a number of torts each with its own rules to which judges are unwilling to add more. Mr. Pirie appearing for the Plaintiff drew my attention to the well-known passage of Lord Wilberforce in Anns case where at p. 751 he says:

"Through the trilogy of cases in this House - Donoghue v. Stevenson (1932) A.C. 562, Hedley Byrne & Co. Ltd. v. Heller & Partners Itd. (1964) A.C. 465, and Dorset Yacht Co. Ltd. v. Home Office (1970) A.C. 1004, the position has now been reached that in order to establish that a duty of care arises in a particular situation it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively it is necessary to consider whether there are any considerations which ought to negative or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise. "

15. Mr. Pirie took me at length through the judgments of their Lordships in Anns case and in the Dorset Yacht Co. Ltd. case, but from an early stage Mr. Feenstra for the Attorney General had conceded a duty of care, a duty to take reasonable care, and with respect to Mr. Pirie I cannot see that Anns case and its trilogy of predecessors have done more than to establish that a duty of care may be lying undiscovered in "neighbour" situations. Once that duty is discovered it is a question of fact whether it is broken and damage flows and I think I can say that Mr. Pirie, very fairly, never raised or sought to raise the duty of the police towards the person in custody to the level of being insurers for his safety, and I would certainly not find on any of the many authorities quoted, to me any such absolute duty.

16. The Editors of Halsbury (Halsbury's Laws of England 4th Ed. Vol. 36 "Police" at para. 324) say :

"324. Persons in Police Custody

 

It is the duty of a constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that he does not (1) escape or assist others to do so, (2) injure himself or others .... Reasonable measures may include searching but what is reasonable in a particular case must depend upon the circumstances which may be such as to call for some departure from the measure which are prima facie reasonable and necessary for that type of case ..... "

Mr. Pirie, as I understand it, says that the General Orders which he quoted, 49-04(9) would indicate that, if not establishing an absolute duty, would nevertheless be an indication of such reasonable steps for the police to take, that is to say to mount and keep a continuous watch.

What is the test of reasonable measures ?

17. In Funk v. Clapp et al. (12 D.L.R. 1984) Macdonald, J. sitting in the British Columbia Supreme Court and trying a case involving a person hanging himself at the police cell with his own belt, held, in spite of a finding of breach of police procedures for removing his belt and of trice hourly checks of his cell, that even if those breaches of police procedures were evidence of negligence they were not the cause of death. In that case it is right to say however that there was no suggestion of the man's intention to commit suicide of which the police could possibly be aware.

18. Macdonald, J. quoted from the judgment of Lord Wilberforce which I have set out above the Anns case. He found that :-

"However remote on a statistical basis suicide is reasonably foreseeable. "

19. But in his decision he found (inter alia) tile follow.ing :

20. Now I have quoted at length from the judgment of Macdonald, J. because I find, with respect, that I am entirely in agreement with his persuasive, as it only is, judgment and that in determining the duty of care in the present case, foreseeability must be established by the Plaintiff as an element of that duty of care. Macdonald, J. builds foreseeability into the duty to safeguard prisoners and I think that must be right, otherwise there will be no need, as a matter of course, to remove belts or shoe laces; but to go further and to raise the duty of the police to guard expressly and constantly against suicide must mean that a special risk, rather than a general risk is foreseeable. That must depend upon the evidence. Mr. Feenstra cited to me various authorities in New Zealand, the other parts of the Commonwealth, and the U.K., but with his concession that a duty of care exists, and on the basis that that duty of care is now firmly governed by the test of foreseeability, the Plaintiff must in my judgment show that the officers knew not only that prisoners do sometimes commit suicide, but also that this Plaintiff was of expressed suicidal tendencies; and it is necessary therefore for me to review the evidence and to make my findings of fact in those respects.

The facts as I find them as to the Defendant's knowledge

21. I have outlined the case earlier in this judgment but it has to be remembered that this is a claim by the Plaintiff who is too ill to give evidence himself. His case is dependent entirely on the agreed documents or on the father's evidence, all of which on the vital issues is denied by the officers concerned. The incident occurred nearly eight years ago and as well as taking account of fading memories I have to be alert for that very human tendency for imagined facts to assume by repetition over the years the proportions of reality.

22. Before this action was launched, and in 1981, the father had made a complaint to UMELCO, and a complaint to CAPO, both during the closing months of 1978 and statements were made by him as well as by the police officers concerned at that time. Most of the officers who testified agreed that their recollection now was limited to what they had said at time of the investigation and the time of making their statements, but the young officer, P.C. 1017, who actually cut down the Plaintiff and gave him artificial respiration says that he will never forget the incident; it was the first and only case of attempted suicide that he had been involved with and I accept that, and I find him an impressive and credible witness.

23. So far as the father is concerned he was a careful witness and I have no doubt that notwithstanding the previous lack of interest in and support for the Plaintiff which he had demonstrated, that nevertheless, since this tragedy he has exerted himself to the full and done everything that any caring father could and should do for his son's well being and future care.

24. The father's testimony was to the effect that until the woman police officer telephoned him in the early hours of 9th August 1978 he had no idea of any suicidal intention of the Plaintiff. He says that after being so alerted by the police, he in turn alerted the Samaritans, but this was after he had also spoken to the Plaintiff that night from the police cell at Chai Wan. The father said that when he spoke to the Plaintiff he asked why he had stolen the bicycle and the Plaintiff replied to him, as he said:

"He told me he had no intention to steal but wanted to use the bicycle to hit against the motor vehicle to take his life. "

25. The father said he never enquired why this was so, but said he was shocked to hear it from his son.

26. In cross-examination he put it rather differently, saying the Plaintiff had said "he was lucky he had not been run down by a motor vehicle". That was all in the course of the conversation permitted in the night time by the woman detective sergeant in charge of the case at that time. The father spoke to her again immediately after his conversation with the Plaintiff but does not remember what else he spoke about thereafter. Now I think that any reasonable person would have continued and remembered the dialogue which the father said had been alarmingly opened up by that woman police officer as to the reason for the Plaintiff's suicidal wishes especially after he had spoken to the Plaintiff confirming this and then again to the officer. That does not appear however to be the case.

27. In his statement to CAPO made on 21st November 1978 the father never even mentioned this conversation with the Plaintiff and said simply:

"Since the police were already aware that my son had expressed his intent to commit suicide I presumed they would take precautions to prevent this and did not pursue the matter further. "

28. In the course of his testimony the father said that he had told the woman police officer the next day that the reason the Plaintiff waited to commit suicide was that he had had an argument with his girl-friend, but the night before the father had had no reason to offer for the Plaintiff's intention to commit suicide. I think this has some significance in the light of a note left by the Plaintiff to which I shall refer later.

29. As I have said, recollections can be faulty at much less of an interval than 7½ years, and I make allowance for minor matters of sequence or detail to be confused but, whereas the father's testimony was, in general, that before the incident the Plaintiff had looked unhappy but gave no impression of contemplating taking his life, amongst the documents disclosed by the Plaintiff was a memorandum written by Dr. P.N. Ho of Castle Peak Hospital to the Medical Superintendent the same hospital and dated the 26th March 1979 (p. 84). This referred to a note "found in his belongings asking to leave him alone in case of accident". This note must have been disclosed by the father to the hospital authorities.

30. The father had never mentioned this note in his evidence in chief nor to the police officers nor when giving his evidence to CAPO. When asked in cross-examination about the note the father said that it contained words to the effect to ignore him and treat him as if he never came into the world. The father said he found the note amongst his own belongings after the Plaintiff had gone camping on that weekend and just before the incident. Under further cross-examination he admitted that it might contain a suggestion of a suicidal intention. Yet the note was mislaid, and the father was unable to give any idea of the circumstances in which he lost it, what is more important is that he never mentioned it to the police at any stage. I find that surprising: it was a note of, even only in retrospect, at the time of the incident, some vital significance in demonstrating the Plaintiff's state of mind at the material time, whether suicidal or not, and then the father admitted finding it before the Plaintiff went camping that weekend. The father's evidence on which the Plaintiff's case is founded is thus that on three occasions, firstly in the telephone call in the early hours of 9th August 1978, secondly face to face in the police station later that morning, and, thirdly on the telephone about an hour before the tragic incident, he was told twice by the woman police officer, and then a third time by another officer of the Plaintiff's tendencies and in each case was asked by the officers the reason why the Plaintiff should have this tendency. All the officers concerned denied any such conversation and denied that the Plaintiff was other than normal at all times whilst in their custody.

31. Even allowing for the lapse of time and for honest human error, I have to say that I do not find the father's evidence convincing in many material aspects. He had all along up to the time of this tragic incident shown remarkable lack of concern for the Plaintiff. He blamed his wife, i.e. the Plaintiff's mother, for the Plaintiff leaving school early. He let his sister sign the admission papers admitted the Plaintiff to Castle Peak, and he gave his son's problem of attempted suicide to the Samaritans: he was in short not a man to shoulder responsibility, if it could be diverted elsewhere, and I find on balance that his attempt to blame the police is yet another demonstration of this attitude. He suggested that between 1230 and 1300 hours, on the 9th August, i.e. within 45 minutes before the Plaintiff hung himself he had telephoned Chai Wan Police Station regarding bail for the Plaintiff and had been told by an officer for the third time that the Plaintiff wanted to commit suicide, and also that he did not want to be bailed out. The officer asked yet again, according to the father, why the Plaintiff should want to do this. He said that after hearing that, he again spoke to the Plaintiff, on the police telephone, and asked him why he took the bicycle, and the Plaintiff said he planned to commit suicide on the bicycle; but I can see no logic in that sort of conversation at that stage. If the father had, as he suggested, told the woman police officer of the possibility of a quarrel between the Plaintiff and his girl-friend as being the cause of his suicidal tendency, the police would have no reason thereafter to inquire into the cause of the suicidal tendencies. The officer-in-charge of telephone calls P.C. 8573 denied ever receiving any call at that time or of telling the father that the Plaintiff did not want to be bailed out, and I accept his evidence to that effect.

32. I also accept the evidence of the officer who was the Duty Officer at the time, i.e. P.C. 1017 and who was in charge of the Plaintiff after he had been formally charged by the C.I.D. and transferred to the uniformed branch at 1238. He knew of the standing instruction to check the cell at 15 minute intervals. He thought that the father would soon be there to bail out the Plaintiff and he said in cross-examination that if he been told of an expressed intention by the Plaintiff to commit suicide, he would have kept the Plaintiff in the Report Room and thus visible until he could spare a guard to watch him in the cell. I accept that, as I accepted the evidence of P.C. 8573 the assistant to P.C. 1017, and who was responsible for the telephone calls, to the effect that there was none from the father in the hour before the incident, and why should there be ? The father had left the police station earlier that day to go about his private business and was returning as intended and arranged. I accept the evidence of P.C. 1017 that the father arrived shortly after the ambulance had taken the Plaintiff to hospital, and that, when told what the Plaintiff had done, the father put his hand to his head and said "Why is he so silly?" and that he then got out a telephone number from a pocket book and made a call to the Samaritans to visit his son in hospital. I find that rather strange for a responsible father, but it underscores my view that even in such an extreme emergency he was nevertheless attempting to place the responsibility and worry elsewhere, and, significantly, he did not say in evidence that he had then attempted to blame the police, or reproached them for not safeguarding the Plaintiff.

33. I also accept the evidence of Woman Detective Sergeant 8185 who was the officer concerned in the two conversations, and who denied any element of the conversation at either of the two times suggested by the father to the effect that she was telling the father of the Plaintiff's suicidal tendency or that it was mentioned at all.

34. I reject the father's evidence therefore suggesting that the initiative in discussing suicide came from the police. I find on balance of probabilities that the father was worried about the note he had found and was told something over the telephone, not by the police, but by the Plaintiff himself whom by then he had not seen for a few days, about trying to kill himself on the bicycle, and that the father that night tried to solve the problem with the Samaritans. I find no truth at all in the father's testimony that the police found the Plaintiff not only with the stolen bicycle but with bottles of Dettol and brandy as well. Contemporaneous records were made of the prisoner's property and these do not include any reference to such unusual exhibits. In short, therefore, I reject the father's testimony of the vital part of these conversations in which police officers were alleged to have raised the subject of suicidal tendencies. I think he has probably convinced himself of their existence from what he was told by the Plaintiff, hearsay as it is, but enough for the father to feel that the police themselves ought to have known. But that is not enough, the burden lies on the Plaintiff through the father's evidence, and as foreseeability is the test, then on balance the Plaintiff has not shown that the police were in a position to foresee that the risk of suicide in this case was any greater than with any other prisoner.

Findings of Law

35. As I have found that this particular Plaintiff's suicidal tendencies were not foreseeable by the police that in my judgment is an end to the matter; without knowing of any special tendency there is no evidence that the police have not discharged their duty of care, and even if I had not found that P.C. 1017 had not only failed to record his inspection of the cell at 1300 hours (15 minutes before he found the Plaintiff hanging) but had also failed to make any inspection at 1300 hours, at all, as it was after all only 12 minutes after the Plaintiff had been put in the cell, that would still not in my judgment be evidence of that failure to take reasonable care of an average prisoner with no known tendencies.

36. But even if I had found that the father's recollection was substantially right, that is to say that the C.I.D. officer, the woman sergeant, knew of suicidal tendencies so that on a test of foreseeability (and bearing in mind that P.C. 1017 said if he had known he would have placed a special watch on the Plaintiff) so that there would have been a prima facie case established in negligence, would that have made any difference? This is where the cases that Mr. Feenstra has cited to me have a particular bearing.

Does ex turpi causa apply to an attempt? Or does public policy prevent a person injuring himself in a suicide attempt from recovering ?

37. Suicide was a crime in Hong Kong until 1961 and an attempted suicide can no longer be a crime here, but does the maxim "ex turpi causa non oritur actio" apply still? At ecclesiastical law of course suicide itself is an offence, but then the tenets of English ecclesiastical law do not, separately as such, not apply in Hong Kong. The Application of English Law Ordinance (Cap. 88) imports the common law and rules of equity in England so far as they are applicable to the circumstances of Hong Kong and its inhabitants. Then as I understand the ecclesiastical law from Halsbury (Halsburys Laws of England 4th Edition Vol.14 para.1041) the only offence is the completed act of suicide, the act of putting an end to one's own life while at an age of discretion and in one's senses. Such an act prevents burial in consecrated ground. It does not appear to me to indicate any separate sanction at ecclesiastical law for the attempt.

38. It would be tempting to say simply that, forgetting the attempt to end life, a person who wilfully injures himself whilst of years of discretion and in his senses, by any means should not be able to lay the blame at the door of another, and that is after all, what happened here. There is no evidence before me to suggest that this Plaintiff at the time was other than in his senses. He was of an age to take care of himself, however ironic that may seem in the context of the background to this tragedy.

39. Whilst ecclesiastical law is part of the general law of England - of the common law in that wider sense which embraces all the ancient and approved customs of England which form the law (Mackonochie v. Lord Penzance 1881 6 App. Cases at p. 446) and in my judgment is thus ultimately imported into Hong Kong, I think there may be a distinction between suicide as a "turpis" and attempted suicide. I find it impossible to hold that to harm oneself simpliciter, is a "turpis", a "base or disgraceful act", it may be that the intent to take one's own life makes it so, but should such an intent be imputed to a plaintiff who has not testified thereto, without strict proof? I think not and I would go so far as to say that a boy in the circumstances of this Plaintiff might well, without seriously intending suicide, have hoped to shock his father by threats or even preparatory acts and demonstrations of intended suicide there is no evidence of his true intent, only hearsay; but if he hurt himself in the course of such an act should he recover from those having custody of him? I think the answer must be an unequivocal No, it would be a public outrage if for example a prisoner of sound mind who in those circumstances banged his head on a cell wall and suffered brain damage, and whether or not the evidence showed suicidalintent, should recover from his custodians, and this would in my judgment also thus fall squarely within the second limb of Lord Wilberforce's concept as stated in Anns case, namely

"... It is necessary to consider whether there are any considerations which ought to negative or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise. "

40. The aspects of public policy were considered by Mahon, J. in the case at first instance of Pallister v. Weikato Hospital Board (1974) 1 NZLR where he said at p. 573 line 50 :

"It was not necessary in Beresford v. Royal Insurance Ltd. to discover the moral or social aspect of suicide, it was at that time a felony and it was sufficient in order to invoke the public policy principle merely to assert that fact. But I am not persuaded that the result should have been different if suicide had not been a felony for it was a moral and social significance of suicide which led to the denomination as a crime at common law ......"

And later at p. 574 line 14 :

"I therefore reach the conclusion that the legislative removal of suicide and its attempt from the catalogue of crime does not invalidate the proposition that public policy prevents the accretion of a benefit to the estate or representatives of a man who committed suicide whilst responsible in law for his actions. "

41. On appeal the judgment of Mahon, J. was upheld and even in his dissenting judgment in the New Zealand Court of Appeal Woodhouse, J. said, quoting with approval from Murdoch v. British Isreal World Federation (NZ) Inc. 19112 NZLR 600, whilst the attempt was still a crime, Smith, J. had said :-

"On the question of public policy .......... Suicide is not a crime in New Zealand, but attempted suicide is. The completion of the attempt is as contrary to public policy as is the attempt and a civil court will no more enforce a benefit alleged to arise from a suicide than it will from the attempt. "

42. The judgment of Mahon, J. seem to me succinctly to encapsulate the law of England and Hong Kong, as I understand it and I come to the conclusion that not only does the action fail for want of breach of a duty of care, but as a matter of public policy even if on the test of foreseeability the police officer had failed to exercise reasonable care this action must fail, on that ground of public policy as well.

Damages

43. Whilst it is not necessary for me to proceed to assess damages I feel it is incumbent on me in this judgment to point out that should I have found for the Plaintiff I would have awarded damages on a disaster basis for a ruined life, but that there would properly be no element in such an award for loss of earnings past or future. There was a remarkable paucity of evidence on the Plaintiff's occupation, if any, and of his earnings therefrom at the time of the accident. This is perhaps symptomatic of the lack of communication between the Plaintiff and his father but nevertheless a matter which if damages were to be recovered for past or future loss of earnings, needed far more investigation, and submission of evidence, of which there was absolutely none in this case. Mr. Pirie being forced to rely on a motional earning capacity of the Plaintiff.

44. For all these reasons I give judgment for the Defendants.

45. Delivered by me this 30th day of April, 1986.