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Judgments - Gray (Original Respondent and Cross appellants) v Thames Trains and others (Original Appellant and Cross respondents)


SESSION 2008-09

[2009] UKHL 33

on appeal from:[2008] EWCA Civ 713




Gray (Original Respondent and Cross appellants) v Thames Trains and others (Original Appellant and Cross respondents)

Appellate Committee

Lord Phillips of Worth Matravers

Lord Hoffmann

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Brown of Eaton-under-Heywood



Christopher Purchas QC

Steven Snowden

(Instructed by Halliwells LLP)


Anthony Scrivener QC

Toby Riley-Smith

(Instructed by Collins)

Hearing dates:

24 and 25 MARCH 2009






Gray (Original Respondent and Cross-appellant) v Thames Trains and others (Original Appellant and Cross-respondents)

[2009] UKHL 33


My Lords,

1.  I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Hoffmann and Lord Rodger of Earlsferry and I agree, for the reasons given by each, that this appeal should be allowed. I wish, however, to add some comments on one aspect of this appeal which has caused me some concern.

2.  The appellants’ negligence was responsible for the Ladbroke Grove rail crash on 5 October 1999. Mr Gray sustained minor physical injuries in the crash, but more significant psychiatric injury in the form of post traumatic stress disorder (PTSD). Under the effects of this condition Mr Gray obtained a knife and repeatedly stabbed a drunken pedestrian, Mr Boultwood, with whom he had had an altercation after he had stepped in front of his car. The pedestrian died of his wounds. Mr Gray gave himself up to the police.

3.  Mr Gray was charged with murder but the prosecution accepted a plea to manslaughter on the ground of diminished responsibility. On 3 March 2003 Rafferty J ordered him to be detained in hospital pursuant to section 37 of the Mental Health Act 1983, subject to an indefinite restriction order under section 41 of that Act. Mr Gray was detained in prison while a hospital placement was found and then moved to Runwell Hospital, where he remains detained.

4.  The appellants have always accepted liability to Mr Gray for his physical and mental injuries and the legal consequences of the latter. The issue has related to the extent of those consequences. The appellants’ case has been that those consequences effectively came to an end when Mr Gray killed Mr Boultwood. Thereafter he has experienced the consequences of his own criminal act, in respect of which he can bring no claim on grounds, inter alia, of public policy. The preliminary issue that has given rise to this appeal relates to the effect of the defence of public policy, commonly formulated in Latin as ex turpi causa non oritur actio.

5.  Mr Gray advanced his claim on two bases. The first accepted that public policy would preclude recovery in respect of the consequences of the killing of Mr Boultwood - Clunis v Camden and Islington Health Authority [1998] QB 978; Worrall v British Railways Board (unreported), 29 April 1999; Court of Appeal Transcript No 684. Mr Gray argued that he could nonetheless recover loss of earnings in respect of the period during which he was detained pursuant to Rafferty J’s order. This was on the basis that the appellants had destroyed his earning capacity before the killing so that their negligence, rather than his act of manslaughter, was responsible for his loss of earnings. The Court of Appeal [2009] 2 WLR 351 accepted this argument but, for the reasons given by Lord Hoffmann and Lord Rodger, I consider that they should not have done so.

6.  The alternative way in which Mr Gray put his case was rejected by the Court of Appeal but was advanced before your Lordships by way of cross-appeal. This was that the following events formed an unbroken chain of causation to which ex turpi causa had no application:

(i)  the rail crash caused by the appellants’ negligence;

(ii)  Mr Gray’s PTSD;

(iii)  The killing of Mr Boultwood;

(iv)  Mr Gray’s conviction for manslaughter;

(v)  The hospital order and Mr Gray’s detention.

7.  Up to the stage of argument in your Lordship’s House it was Mr Gray’s case that his act of manslaughter was the cause of the hospital order and his detention under it. On that premise I agree with Lord Hoffmann and Lord Rodger, for the reasons that they give, that public policy prevents Mr Gray from recovering damages for his detention and its consequences. In particular, I agree with Lord Hoffmann’s identification of a wider and a narrower rule of public policy, applicable in this case.

8.  Where I respectfully differ from Lord Hoffmann is in respect of the general applicability of the following passage in paragraph 41 of his opinion:

“But the sentence imposed by the court for a criminal offence is usually for a variety of purposes: punishment, treatment, reform, deterrence, protection of the public against the possibility of further offences. It would be impossible to make distinctions on the basis of what appeared to be its predominant purpose. In my view it must be assumed that the sentence was what the criminal court regarded as appropriate to reflect the personal responsibility of the accused for the crime he has committed”

While this statement is true of the sentence imposed by Rafferty J. it will not always be true of a hospital order imposed under section 37 of the 1983 Act.

9.  In R v Drew [2003] UKHL 25; [2003] 1 WLR 1213, when giving the considered opinion of the Committee, Lord Bingham of Cornhill stated at paragraph 9 that it was unnecessary to review the detailed statutory provisions governing the admission of offenders to hospital under s. 37 of the 1983 Act since their effect was clearly and authoritatively explained by the Court of Appeal (Criminal Division) in R v Birch (1989) 11 Cr. App. R. (S.) 202 at 210. I shall follow Lord Bingham’s example by quoting extensively from the judgment of that Court, given by Mustill LJ. The first passage at p. 210 deals with a hospital order under section 37 that is not accompanied by a restriction order under section 41:

“Once the offender is admitted to hospital pursuant to a hospital order or transfer order without restriction on discharge, his position is almost exactly the same as if he were a civil patient. In effect he passes out of the penal system and into the hospital regime. Neither the court nor the Secretary of State has any say in his disposal. Thus, like any other mental patient, he may be detained only for a period of six months, unless the authority to detain is renewed, an event which cannot happen unless certain conditions, which resemble those which were satisfied when he was admitted, are fulfilled. If the authority expires without being renewed, the patient may leave. Furthermore, he may be discharged at any time by the hospital managers or the ‘responsible medical officer'. In addition to these regular modes of discharge, a patient who absconds or is absent without leave and is not retaken within 28 days is automatically discharged at the end of that period (section 18(5)) and if he is allowed continuous leave of absence for more than six [now twelve] months, he cannot be recalled (section 17(5)).

Another feature of the regime which affects the disordered offender and the civil patient alike is the power of the responsible medical officer to grant leave of absence from the hospital for a particular purpose, or for a specified or indefinite period of time: subject always to a power of recall (except as mentioned above).

There are certain differences between the positions of the offender and of the civil patient, relating to early access to the Review Tribunal and to discharge by the patient’s nearest relative, but these are of comparatively modest importance. In general the offender is dealt with in a manner which appears, and is intended to be, humane by comparison with a custodial sentence. A hospital order is not a punishment. Questions of retribution and deterrence, whether personal or general, are immaterial. The offender who has become a patient is not kept on any kind of leash by the court, as he is when he consents to a probation order with a condition of inpatient treatment. The sole purpose of the order is to ensure that the offender receives the medical care and attention which he needs in the hope and expectation of course that the result will be to avoid the commission by the offender of further criminal acts.”

10.  Mustill LJ then added this in relation to the effect of a restriction order, at pp 210-11:

“In marked contrast with the regime under an ordinary hospital order, is an order coupled with a restriction on discharge pursuant to section 41. A restriction order has no existence independently of the hospital order to which it relates; it is not a separate means of disposal. Nevertheless, it fundamentally affects the circumstances in which the patient is detained. No longer is the offender regarded simply as a patient whose interests are paramount. No longer is the control of him handed over unconditionally to the hospital authorities. Instead the interests of public safety are regarded by transferring the responsibility for discharge from the responsible medical officer and the hospital to the Secretary of State alone (before September 30, 1983) and now to the Secretary of State and the Mental Health Review Tribunal. A patient who has been subject to a restriction order is likely to be detained for much longer in hospital than one who is not, and will have fewer opportunities for leave of absence.”

11.  In a third passage at p. 215 Mustill LJ dealt with the problem facing a sentencer where the defendant needs hospital treatment but his offence merits punishment:

“For the present purposes it is, we believe, sufficient to note that the choice of prison as an alternative to hospital may arise in two quite different ways: . . . (2) Where the sentencer considers that notwithstanding the offender’s mental disorder there was an element of culpability in the offence which merits punishment. This may happen where there is no connection between the mental disorder and the offence, or where the defendant’s responsibility for the offence is ‘diminished’ but not wholly extinguished. That the imposition of a prison sentence is capable of being a proper exercise of discretion is shown by Morris (1961) 2 Q.B. 237 and Gunnell. Nevertheless the more recent decision Mbatha (1985) 7 Cr.App.R(S) 373 strongly indicates that even where there is culpability, the right way to deal with a dangerous and disordered person is to make an order under section 37 and 41.”

12.  In Drew at paragraph 13 Lord Bingham also considered what he described as the problematic situation where neither a sentence of imprisonment, nor a hospital order, on its own appeared appropriate in the case of a particular offender and where the mutually exclusive operation of such disposals appeared unsatisfactory. He quoted from the White Paper “Protecting the Public: The Government’s Strategy on Crime in England and Wales", Cm 3190, March 1996 which proposed a solution to this problem:

“8.12. The Government proposes changes in the arrangements for the remand, sentencing and subsequent management of mentally disordered offenders to provide greater protection for the public and to improve access to effective medical treatment for those offenders who need it. The central change, if adopted, would be the provision of a ‘hybrid order’ for certain mentally disordered offenders for whom the present form of hospital order is unsatisfactory, particularly those who are considered to bear a significant degree of responsibility for their offences. The order would enable the courts, in effect, to pass a prison sentence on an offender and at the same time order his immediate admission to hospital for medical treatment.

8.13. The hybrid order, together with other proposals amending the detail of the Mental Health Act 1983, would substantially increase the flexibility of arrangements for dealing with mentally disordered offenders at all stages from remand through to rehabilitation. In particular, it would enable the courts to deal with some of the most difficult cases in a way which took proper account of the offender’s need for treatment; the demands of justice; and the right of other people to be protected from harm.

8.14. Existing sentencing arrangements for offenders who are mentally disordered require the court to decide either to order the offender’s detention in hospital for treatment, or to sentence him to imprisonment, or to make some other disposal. In some cases, an offender needs treatment in hospital but the circumstances of the offence also require a fixed period to be served in detention. This may be because the offender is found to bear some significant responsibility for the offence notwithstanding his disorder, or because the link between the offending behaviour and the mental disorder is not clear at the time of sentencing. The hybrid disposal would be a way of enabling the requirements of sentencing in such cases to be met. Under the order, an offender would remain in hospital for as long as his mental condition required, but if he recovered or was found to be untreatable during the fixed period set by the court, he would be remitted to prison. The hybrid order was recommended for use in sentencing offenders suffering from psychopathic disorder by the Department of Health and Home Office Working Group on Psychopathic Disorder. The Government is considering whether it might be made available in respect of offenders suffering from all types of mental disorder currently covered by mental health legislation.”

13.  As Lord Bingham observed, legislative effect was given to this proposal in the case of an offender suffering from psychopathic disorder, by section 45A of the 1983 Act, inserted by section 46 of the Crime (Sentences) Act 1997. By amendment made by section 1 of and Schedule 1 to the Mental Health Act 2007 this provision now applies more widely to an offender suffering from a “mental disorder". In respect of such a person a court can now combine a hospital direction with a penal sentence - see section 45A of the 1983 Act.

14.  The comments of both Mustill LJ and Lord Bingham recognised that a mentally disordered offender whose mental condition did not satisfy the test of insanity or render him unfit to plead might nonetheless have no significant responsibility for his offence. Furthermore, while a conviction for an offence punishable with imprisonment is necessary to confer jurisdiction on a judge to impose a hospital order under section 37, the offence leading to that conviction may have no relevance to the decision to make the hospital order. Thus in R v Eaton [1976] Crim. L.R. 390 a hospital order with a restriction order unlimited as to time was made in respect of a woman with a psychopathic disorder where her offence was minor criminal damage.

15.  In such an extreme case, where the sentencing judge makes it clear that the defendant’s offending behaviour has played no part in the decision to impose the hospital order, it is strongly arguable that the hospital order should be treated as being a consequence of the defendant’s mental condition and not of the defendant’s criminal act. In that event the public policy defence of ex turpi causa would not apply. More difficult is the situation where it is the criminal act of the defendant that demonstrates the need to detain the defendant both for his own treatment and for the protection of the public, but the judge makes it clear that he does not consider that the defendant should bear significant personal responsibility for his crime. I would reserve judgment as to whether ex turpi causa applies in either of these situations, for we did not hear full argument in relation to them. In so doing I take the same stance as Lord Rodger.

16.  In the course of his submissions to the House, counsel for Mr Gray for the first time submitted that the hospital order made in respect of Mr Gray should not be treated as imposed because he had committed manslaughter but because he needed treatment. Such a submission had not been advanced in the courts below and did not appear in the respondent’s written case. On the contrary, it had always been Mr Gray’s case that the manslaughter was the cause of his hospital order but that the respondents were responsible for both the manslaughter and its consequences.

17.  Rafferty J. did not have available the possibility of imposing a sentence on Mr Gray that was subject to a hospital direction. In order to protect the public she had a stark choice between a hospital order together with a restriction order and a discretionary sentence of life imprisonment. The fact that she chose the former is no indication that she did not consider that Mr Gray had to accept significant responsibility for his actions. Section 41 of the 1983 Act required her to have regard to “the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large” when considering whether the “protection of the public from serious harm” required the imposition of a restriction order. The horrific nature of Mr Gray’s crime is likely to have been the most significant factor in leading her to conclude that a restriction order was necessary.

18.  Flaux J held, on the basis of the evidence of a psychiatrist who had examined Mr Gray immediately prior to the manslaughter that it could not be said that, on a balance of probabilities, the claimant would have been admitted to or detained in a psychiatric hospital if he had not committed manslaughter. That finding has not been challenged. It is conclusive of the causative link between the manslaughter and the hospital order.

19.  Subject to these observations I agree with the reasoning of Lord Hoffmann, as well as that of Lord Rodger, and like them would allow this appeal and restore the order of Flaux J.


My Lords,

20.  On 5 October 1999 a three-car Turbo Train operated by Thames Trains collided with a First Great Western High Speed Train approaching Paddington Station. 31 people were killed and over 500 injured. The accident was caused by the negligence of employees of Thames Trains and Railtrack plc (now Network Rail Infrastructure Ltd), who are appellants before your Lordships’ House.

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.

25.  The judge decided that there is the rule of law for which the appellants contend and that it precludes recovery for both loss of earnings and general damages after and in consequence of the killing. The Court of Appeal (Sir Anthony Clarke MR, Tuckey and Smith LJJ) [2009] 2 WLR 351 said that they were bound by authority to hold that it precluded the claim for general damages but not for loss of earnings. Accordingly they allowed the appeal on this point, but remitted to the judge what they called the issue of causation, which they said had not been considered in either court.

26.  The appellants appeal to your Lordships’ House against the part of the order of the Court of Appeal which reversed the judge and Mr Gray cross-appeals against the part which affirmed him.

27.  My Lords, the question in this case is in my opinion 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 complains prevents him from recovering that part of his loss caused by the criminal act. The facts of which were clearly established by the evidence and the verdict at the trial. On the one hand, but for the accident and the stress disorder which it caused, Mr Gray would not have killed and would therefore not have suffered the consequences for which he seeks compensation. On the other hand, the killing was a voluntary and deliberate act. The stress disorder diminished Mr Gray’s responsibility but did not extinguish it. By reason of his own acknowledged responsibility, Mr Gray committed the serious crime of manslaughter and made himself liable to the sentence of the court. The question is whether these features of the causal relationship between the injury and the damage are such as to prevent Mr Gray from recovering.

28.  It is not sufficient to exclude liability that the immediate cause of the damage was the deliberate act of the claimant himself. Although in general a defendant will not be liable for damage of which the immediate cause was the deliberate act of the claimant or a third party, that principle does not ordinarily apply when the claimant or third party’s act was itself a consequence of the defendant’s breach of duty. So in Corr v IBC Vehicles Ltd [2008] AC 884 an employer whose negligence had caused post-traumatic stress disorder to a workman was held liable to his dependants for his subsequent death by suicide. Although the immediate cause of the workman’s death was his own voluntary and deliberate act, the state of mind in which he had taken his own life had been caused by the employer’s breach of duty. In such a case the damages may be reduced, as in Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360, but the defendant’s liability is not excluded.