Dear Colleagues,

 

The House of Lords has today allowed the appeal in Gray v Thames Trains & Ors [2009] UKHL 33 http://www.bailii.org/uk/cases/UKHL/2009/33.html or http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090617/gray-1.htm. The case involved a claim by a man involved in the Ladbroke Grove train crash in 1999. The facts and issues are stated by Lord Hoffmann:

 

 

21. The respondent Mr Gray was travelling in the Turbo Train. He was a 39-year-old local authority employee who had led a relatively uneventful life. He sustained only minor physical injuries but the experience caused post-traumatic stress disorder and depression. On 19 August 2001, when he was receiving medication and treatment to relieve this condition, he became involved in an altercation with a drunken pedestrian who stepped into the path of his car. When the incident was over, Mr Gray drove to the nearby house of his girl-friend's parents, took a knife from a drawer, drove off in pursuit of the pedestrian, found him and stabbed him to death.

 

22. Mr Gray was charged with murder and remanded in custody. At the trial in the Crown Court at Chelmsford on 22 April 2002, the Crown accepted a plea of guilty to manslaughter on the grounds of diminished responsibility caused by post-traumatic stress disorder. He was sentenced to be detained in hospital pursuant to section 37 of the Mental Health Act 1983 with an indefinite restriction order under section 41. After a period of detention in prison, because no hospital accommodation was available, he was moved to Runwell Hospital in Essex, where he remains.

 

23. On 17 August 2005 Mr Gray commenced an action for negligence against the appellants. In his schedule of special damage he claimed loss of earnings until the date of trial and continuing. For the period between the railway accident and the killing, he was from time to time employed and claims the difference between what he actually earned and what he would have earned had he continued in his previous occupation. For the period during which he has been detained after the killing, he claims the whole of what he would have earned in his previous occupation. The claim for future loss is based on the assumption that after release from hospital he is unlikely to find employment. He also claims general damages for his detention, conviction, feelings of guilt and remorse and damage to reputation and an indemnity against any claims which might be brought by dependants of the dead pedestrian.

 

24. When the action came before Flaux J for trial, counsel invited the judge to decide whether the claim for Mr Gray's loss of earnings while he was detained in prison or the hospital and the general damages for the consequences of the killing were irrecoverable by reason of a rule of law, based on public policy, which prevents someone from obtaining compensation for the consequences of his own criminal act. That seems to me the most accurate way of putting the question, but no formal preliminary issue was directed to be tried and both counsel and the judge used different language to express it. The judge said that it was whether the claimant was precluded from recovering such losses "by application of the principle ex turpi causa non oritur actio" and the agreed statement of facts and issues says that it is whether such recovery is "precluded by the principle of ex turpi causa." Neither formulation attempted to define what, in the context of this case, the principle is.

 

 

Their Lordships unanimously hold that Mr Gray was not able to recover. The decision involves some consideration of liability for a claimant’s own deliberate acts (though as Lord Brown points out at [98], manslaughter is a crime, while suicide, as in Corr v IBC, is not), defences of illegality and ex turpi causa, and causation. Lord Hoffmann refers to what he identifies as the wider and narrower forms of the illegality defence. Reference is made to the Law Commission’s work on the Illegality Defence Australian and Canadian authorities are cited, including last year’s decision of the Supreme Court of Canada in British Columbia v Zastowny [2008] 1 S.C.R. 27, which perhaps offers an interesting comparison with the facts in Gray.

 

Best wishes,

 

James