Local Government - July 2009

Ex turpi causa – effect of intervening criminal act

Kerrie Francis Gray v Thames Trains Limited and others
House of Lords 17 June 2009

Summary

The House of Lords has reversed the decision of the Court of Appeal in this case, rejecting the claim for loss of earnings by application of the ex turpi causa policy.

The facts

In brief, the claimant, Kerrie Gray, suffered minor physical injuries in the Ladbroke Grove rail crash in 1999 but then developed far more serious mental problems. That led, in 2001, to him stabbing a stranger to death. He pleaded guilty to diminished responsibility manslaughter and was subsequently ordered to be detained in hospital pursuant to the Mental Health Act 1983, where he remains to this day.

At first instance, Faulx J rejected a claim for loss of earnings arising after the commission of the criminal act. In the Court of Appeal, that decision was reversed; the court reasoning that the monetary losses were the result of the train companies’ earlier admitted negligence, rather than the intervening criminal conduct.

House of Lords

The House of Lords reversed unanimously the Court of Appeal decision. The leading judgments of the House were given by Lords Hoffman and Rodger, although Lords Phillips and Brown both added useful comments of their own. The House of Lords considered both the narrow application of ex turpi causa, the policy by which the courts prevent anyone from profiting from their own wrongdoing, and the wider principle. The question in this particular case was framed by Lord Hoffman as follows-

“… whether the intervention of Mr Gray’s criminal act in the causal relationship between the defendants’ breaches of duty and the damage of which he complaints prevents him from recovering that part of his loss caused by the criminal act”.

After an illuminating consideration of the authorities in this area, Lord Hoffman expressed confusion at the approach adopted by the Court of Appeal. Mr Gray’s own responsibility for the manslaughter could not be ignored, and although his plea on the basis of diminished responsibility had been accepted, and that did not exculpate him entirely. As Lord Hoffman found –

“Mr Gray was unable to earn money after 19 August 2001 because he was detained; at first in police custody, then in prison and then in hospital…He was arrested and detained because he had committed manslaughter.  He was sentenced to be detained because he had committed manslaughter. The causation is clear enough and it is hard to think of a more inextricable link”.

As a result, the decision of the Court of Appeal was overturned, the claimant recovering nothing in terms of compensation following his criminal act.

Comment

It is clear that the House of Lords had a great deal of sympathy for Mr Gray. Lord Brown commented that “his life has been a tragedy” and “but for his injuries it is inconceivable that [he] would ever have killed anyone.” But the ex turpi causa doctrine is underpinned by a requirement for the court to act with consistency in a range of situations where claimants might otherwise profit from their own wrongdoing, even where the application of that policy may, in cases such as this, lead to what may be regarded as an unjust or ill-deserved result for the initial offender.

This very interesting case merits a full consideration of the opinions in the House of Lords. There will undoubtedly be further litigation on the point in years to come, and one area considered by the House of Lords was left open. That concerns the situation where a person may be detained pursuant to mental health legislation following commission of a trivial offence. Both Lords Rodger and Phillips preferred to reserve judgment on that question until a determination is required on the facts of a real case.

Nick Peel
Partner
Weightmans LLP