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

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29.  It must follow from Corr’s case that the mere fact that the killing was Mr Gray’s own voluntary and deliberate act is not in itself a reason for excluding the defendants’ liability. Nor do the appellants say that it is. Their principal argument invokes a special rule of public policy. In its wider form, it is that you cannot recover compensation for loss which you have suffered in consequence of your own criminal act. In its narrower and more specific form, it is that you cannot recover for damage which flows from loss of liberty, a fine or other punishment lawfully imposed upon you in consequence of your own unlawful act. In such a case it is the law which, as a matter of penal policy, causes the damage and it would be inconsistent for the law to require you to be compensated for that damage.

30.  Is there such a rule? The appellants say that there is, and that it is one aspect of a wider principle that ex turpi causa non oritur actio, (or, as Lord Mansfield said in Holman v Johnson (1775) 1 Cowp 341, 343, ex dolo malo non oritur actio.) This tag has been invoked to deny a remedy in a wide variety of situations and a good deal of time was spent in argument examining diverse cases and discussing whether the conditions under which the courts had held the maxim applicable in some other kind of case were satisfied in this one. For example, in cases about rights of property, it has been said that a claimant will fail on grounds of illegality only if his claim requires him to rely upon or plead an illegal act: Tinsley v Milligan [1994] 1 AC 340. So Mr Scrivener QC, who appeared for Mr Gray, said that his client’s action was founded upon the defendants’ act of negligence and not upon the unlawful killing. That of course is true; if the defendants had not been negligent, or the damage had no connection with the train crash which could be described as causal, the claim would not have got past the starting post. But that is not the point; in this kind of case, the question is whether recovery is excluded because the immediate cause of the damage was the act of manslaughter, which resulted in the sentence of the court. Likewise, there was an examination of the pleadings to discover whether Mr Gray had been obliged to plead his unlawful act, Mr Purchas QC, (who appeared for the appellants), saying that he had and Mr Scrivener saying that he had not. Again, the pleadings seem to me to have nothing to do with whether there is the rule of law for which the appellants contend. As a result, I did not find any of this discussion very helpful. The maxim ex turpi causa expresses not so much a principle as a policy. Furthermore, that policy is not based upon a single justification but on a group of reasons, which vary in different situations. For example, as Beldam LJ pointed out in in Cross v Kirkby [2000] CA Transcript No 321, at para 74, in cases in which the court is concerned with the application of the maxim to property or contractual rights between two people who were both parties to an unlawful transaction —

“it faces the dilemma that by denying relief on the ground of illegality to one party, it appears to confer an unjustified benefit illegally obtained on the other.”

31.  In cases of that kind, the courts have evolved varying rules to deal with the dilemma: compare the approach of the House of Lords in Tinsley v Milligan [1994] 1 AC 340 with that of the High Court of Australia in Nelson v Nelson (1995) 184 CLR 538. But the problem to which Beldam LJ drew attention does not arise in this case. The questions of fairness and policy are different and the content of the rule is different. One cannot simply extrapolate rules applicable to a different kind of situation.

32.  The particular rule for which the appellants contend may, as I said, be stated in a wider or a narrow form. The wider and simpler version is that which was applied by Flaux J: you cannot recover for damage which is the consequence of your own criminal act. In its narrower form, it is that you cannot recover for damage which is the consequence of a sentence imposed upon you for a criminal act. I make this distinction between the wider and narrower version of the rule because there is a particular justification for the narrower rule which does not necessarily apply to the wider version.

33.  I shall deal first with the narrower version, which was stated in general terms by Denning J in Askey v Golden Wine Co Ltd [1948] 2 All ER 35, 38:

“It is, I think, a principle of our law that the punishment inflicted by a criminal court is personal to the offender, and that the civil courts will not entertain an action by the offender to recover an indemnity against the consequences of that punishment.”

34.  The leading English authority is the decision of the Court of Appeal in Clunis v Camden and Islington Health Authority [1998] QB 978, in which the plaintiff had been detained in hospital for treatment of a mental disorder. On 24 September 1992 the hospital discharged him and on 17 December 1992 he stabbed a man to death. He pleaded guilty to manslaughter on the grounds of diminished responsibility and was sentenced, as in this case, to be detained in hospital pursuant to section 37 of the Mental Health Act 1983 with an indefinite restriction order under section 41.

35.  The plaintiff sued the Health Authority, alleging that it had been negligent in discharging him and not providing adequate after care and claiming damages for his loss of liberty. The Health Authority applied to strike out the action on the ground that, even assuming that it had been negligent and that the plaintiff would not otherwise have committed manslaughter, damages could not be recovered for the consequences of the plaintiff’s own unlawful act. In other words, the Health Authority relied upon the wider version of the rule. Beldam LJ, who gave the judgment of the Court, accepted this submission. He said (at pp. 989-990):

“In the present case the plaintiff has been convicted of a serious criminal offence. In such a case public policy would in our judgment preclude the court from entertaining the plaintiff’s claim unless it could be said that he did not know the nature and quality of his act or that what he was doing was wrong. The offence of murder was reduced to one of manslaughter by reason of the plaintiff’s mental disorder but his mental state did not justify a verdict of not guilty by reason of insanity. Consequently, though his responsibility for killing Mr. Zito is diminished, he must be taken to have known what he was doing and that it was wrong. A plea of diminished responsibility accepts that the accused’s mental responsibility is substantially impaired but it does not remove liability for his criminal act…The court ought not to allow itself to be made an instrument to enforce obligations alleged to arise out of the plaintiff’s own criminal act and we would therefore allow the appeal on this ground.”

36.  Clunis’s case was followed by the Court of Appeal in Worrall v British Railways Board [1999] CA Transcript No 684 in which the plaintiff alleged that an injury which he has suffered as a result of his employer’s negligence had changed his personality. As a result, he had on two occasions committed sexual assaults on prostitutes, for which offences he had been sentenced to imprisonment for six years. He claimed loss of earnings while in prison and thereafter. The Court of Appeal struck out this claim. Mummery LJ said:

“It would be inconsistent with his criminal conviction to attribute to the negligent defendant in this action any legal responsibility for the financial consequences of crimes which he has been found guilty of having deliberately committed”

37.  The reasoning of Mummery LJ reflects the narrower version of the rule. The inconsistency is between the criminal law, which authorizes the damage suffered by the plaintiff in the form of loss of liberty because of his own personal responsibility for the crimes he committed, and the claim that the civil law should require someone else to compensate him for that loss of liberty. But this reasoning is not applicable to damage which a claimant may suffer as a result of his own criminal act but which is not inflicted by the criminal law, such as injury which he may suffer in the course of some criminal activity. This kind of case, of which Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218 is a good example, raises somewhat different issues to which I shall return when I discuss the wider form of the rule.

38.  The Clunis decision was approved by the Law Commission in its Consultation Paper The Illegality Defence in Tort (No 160, 2001) on the same narrow ground as that of Mummery LJ in Worrall’s case:

Clunis v Camden and Islington Heath Authority…seems entirely justifiable if the rationale of consistency is accepted: it would be quite inconsistent to imprison or detain someone on the grounds that he was responsible for a serious offence and then to compensate him for the detention.” (para 4.100)

39.  The narrower rule, based on inconsistency, has the support of high authority in the Commonwealth. In British Columbia v Zastowny [2008] 1 SCR 27 the plaintiff was a drug addict and petty criminal who had spent most of his life in prison for various offences. While in prison at the age of 18 he had twice been sexually assaulted by a prison officer and the court found that this experience has exacerbated his drug addiction and the criminal conduct which it caused. He sued the Provincial Government as vicariously liable for the assaults, claiming damages for (among other things) loss of earnings during the subsequent years he had spent in prison. The Supreme Court held that such damages were not recoverable. Rothstein J said, at para 22

“Zastowny’s wage loss while incarcerated is occasioned by the illegal acts for which he was convicted and sentenced to serve time. In my view, therefore, the ex turpi doctrine bars Zastowny from recovering damages for time spent in prison because such an award would introduce an inconsistency in the fabric of law. This is because such an award would be, as McLachlin J. described in Hall v. Hebert [1993] 2 SCR 159, 178, “giving with one hand what it takes away with the other". When a person receives a criminal sanction, he or she is subject to a criminal penalty as well as the civil consequences that are the natural result of the criminal sanction. The consequences of imprisonment include wage loss.”

40.  Similarly in State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500 the plaintiff was seriously injured in an industrial accident caused by the defendant’s negligence. For some months he received payments of worker’s compensation but when these ceased he took to supplementing his income by growing and selling marijuana. This was a criminal offence for which he was convicted and served some eight months imprisonment. He also lost his employment. He claimed compensation for loss of earnings while in prison and afterwards on the ground that it was a consequence of the impecuniosity caused by the accident. By a majority (Samuels and Handley JJA, Kirby P dissenting) this damage was held to be irrecoverable. Samuels JA said (at p. 514):

“If the plaintiff has been convicted and sentenced for a crime, it means that the criminal law has taken him to be responsible for his actions and has imposed an appropriate penalty. He or she should therefore bear the consequences of the punishment, both direct and indirect. If the law of negligence were to say, in effect, that the offender was not responsible for his actions and should be compensated by the tortfeasor, it would set the determination of the criminal court at nought. It would generate the sort of clash between civil and criminal law that is apt to bring the law into disrepute.”

41.  The narrower rule is thus well established and the only cases in which it has been questioned are those in which some judges have felt that it was hard on the plaintiff because his conduct had not been as blameworthy as all that. Perhaps an extreme example is the dissent of Kirby P in State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500, which appears to have been on the ground that there was “no single view in the Australian community concerning the moral disapprobation of the respondent’s conduct in cultivating Indian hemp": see p. 505. Likewise it has been submitted in this case that the sentence of detention in a hospital reflected the fact that Mr Gray was not really being punished but detained for his own good to enable him to be treated for post-traumatic stress disorder. 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 (in this case, the restriction order) was what the criminal court regarded as appropriate to reflect the personal responsibility of the accused for the crime he has committed. As one commentator has said “Tort law has enough on its plate without having to play the criminal law’s conscience": see EK Banakas in [1985] CLJ 185, 197. This was plainly the view of the Court of Appeal in the Clunis case, in which the plaintiff had also been sentenced to detention in a hospital. I agree.

42.  It should be noticed that in Hunter Area Health Service v Presland (2005) 63 NSWLR 22 the New South Wales Court of Appeal (again by a majority: Sheller and Santow JJA, Spigelman CJ dissenting) went even further and applied the rule when the plaintiff, who had been negligently discharged from a psychiatric hospital, was acquitted of murdering a woman six hours later on the ground of mental illness but ordered to be detained in strict custody as a mental patient. There are dicta (for example, in the passage I have quoted from Clunis’s case [1998] QB 978, 989) which suggest that the rule does not apply when the plaintiff, by reason of insanity, is not responsible for his actions. But the majority regarded compensation even in such a case as contrary to public policy. Sheller JA made the pertinent observation (at para 300) that if the rule did not apply and the plaintiff had killed the negligent psychiatrist who discharged him, the latter’s estate would have been liable to pay the plaintiff compensation for his consequent detention. This case, which Sheller JA (at para 294) described as “unusual if not unique” raises an interesting question about the limits of the rule which it is not necessary to decide for the purposes of this appeal.

43.  The Court of Appeal rightly held that it was bound by the decision in Clunis’s case to apply the rule and reject the claim for damage suffered in consequence of the criminal court’s sentence of detention. They did so with regret. The Master of the Rolls, giving the judgment of the Court, said (at paragraph 49):

“There seems to us to be something to be said for the view that the traditional harsh view of public policy expressed in, for example, the Clunis case [1998] QB 978 and the Worrall case [1999] CA Transcript No 684 should be revisited in a case in which the crime relied upon (whether relied upon by the claimant or the tortfeasor) was itself caused by the tort. In times gone by, it would perhaps have been seen as inconceivable that the murder or manslaughter of another could have been caused by a tort. However, the facts and evidence in the Corr case [2008] AC 884 and this case, and perhaps a more developed understanding of clinical depression, show that it is no longer inconceivable. It is far from clear to us why the ends of justice are not sufficiently served by the principles of foreseeability, causation and contributory negligence without the need for a further principle of public policy in such a case.”

44.  This argument treats the whole question as being whether the crime can be said to have been “caused” by the tort. As I have said, there is no dispute that there was a causal connection between the tort and the killing. The evidence which the judge accepted was but for the tort, Mr Gray would not have killed. But the rule of public policy invoked in this case is not based upon some primitive psychology which deems mental stress to be incapable of having a connection with subsequent criminal acts. As Hunter Area Health Service v Presland (2005) 63 NSWLR 22 shows, it may reflect more than one facet of public policy, but it is sufficient in the present case to say that the case against compensating Mr Gray for his loss of liberty is based upon the inconsistency of requiring someone to be compensated for a sentence imposed because of his own personal responsibility for a criminal act. The Court of Appeal said nothing about this aspect of the matter.

45.  The Court of Appeal [2009] 2 WLR 351, para 51 produced an imaginary example which appeared to them to reveal an anomaly in the rule stated in Clunis’s case:

“Suppose a man suffering from clinical depression caused by a tort jumps off a tall building and dies and, just before he does so, he deliberately pushes someone else off, who also dies. Suppose then that both the dependants of the suicide and the dependants of the man who has been pushed off, and thus killed by the suicide, take proceedings against the tortfeasor, it is not clear why, either as a matter of foreseeability or causation on the one hand or public policy on the other, the former should be entitled to recover but not the latter.”

46.  I find this example puzzling. There seems to me no reason of public policy why the dependants of the man pushed off the building should not recover damages against the tortfeasor if (as the example assumes) there was a causal connection between the tort and his death and it is regarded as having been a foreseeable consequence. The dependants are not seeking compensation for a consequence of the victim’s own crime, still less for the consequence of a sentence imposed for that crime. The victim did not commit any crime at all. As for the claim by the dependants of the suicide, there might until Corr’s case [2008] AC 884 have been some doubt about whether they could recover, but that has now been settled. So I cannot see any anomaly. It seems to me to illustrate the fact that the Court of Appeal took the rule in Clunis’s case to be based upon some eccentric view of causation rather than public policy.

47.  Despite holding that the rule applied, the Court of Appeal said that Mr Gray was entitled to compensation for loss of earnings after his arrest for the killing. They said, at para 20, that the question was “whether the relevant loss is inextricably linked with the claimant’s illegal act” and came to the conclusion that it was not:

“The claimant’s case is simply that he has suffered a loss because, but for the tort, he would have earned money both before and after 19 [August] 2001 and that he is therefore entitled to recover the whole of his loss of earnings from the defendants. The manslaughter is not inextricably bound up with that claim.” (para 22)

48.  I am afraid that I do not understand this either. 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 detained because he had committed manslaughter. Stripped of the metaphor of the inextricable link, the question is whether his act of manslaughter caused his inability to earn. Either way, the answer seems to me to be plain. 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.

49.  It is true that even if Mr Gray had not committed manslaughter, his earning capacity would have been impaired by the post-traumatic stress disorder caused by the defendants’ negligence. But liability on this counter-factual basis is in my opinion precluded by the decision of this House in Jobling v Associated Dairies Ltd [1982] AC 794. In that case, the plaintiff suffered an injury caused by his employer’s breach of statutory duty. It caused him partial disablement which reduced his earning capacity. Three years later he was found to be suffering from unrelated illness which was wholly disabling. The question was whether he could claim for the disablement which hypothetically he would have continued to suffer if it had not been overtaken by the effects of the supervening illness. The answer was that he could not. The fact that he would in any event have been disabled from earning could not be disregarded. Likewise in this case, in assessing the damages for the effect of the stress disorder upon Mr Gray’s earning capacity, the fact that he would have been unable to earn anything after arrest because he had committed manslaughter cannot be disregarded.

50.  My Lords, that is in my opinion sufficient to dispose of most of the claims which are the subject of this appeal. Mr Gray’s claims for loss of earnings after his arrest and for general damages for his detention, conviction and damage to reputation are all claims for damage caused by the lawful sentence imposed upon him for manslaughter and therefore fall within the narrower version of the rule which I would invite your Lordships to affirm. But there are some additional claims which may be more difficult to bring within this rule, such as the claim for an indemnity against any claims which might be brought by dependants of the dead pedestrian and the claim for general damages for feelings of guilt and remorse consequent upon the killing. Neither of these was a consequence of the sentence of the criminal court.

51.  I must therefore examine a wider version of the rule, which was applied by Flaux J. This has the support of the reasoning of the Court of Appeal in Clunis’s case [1998] QB 978 as well as other authorities. It differs from the narrower version in at least two respects: first, it cannot, as it seems to me, be justified on the grounds of inconsistency in the same way as the narrower rule. Instead, the wider rule has to be justified on the ground that it is offensive to public notions of the fair distribution of resources that a claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct. Secondly, the wider rule may raise problems of causation which cannot arise in connection with the narrower rule. The sentence of the court is plainly a consequence of the criminality for which the claimant was responsible. But other forms of damage may give rise to questions about whether they can properly be said to have been caused by his criminal conduct.

52.  The wider principle was applied by the Court of Appeal in Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218. The claimant was injured in consequence of jumping from a second-floor window to escape from the custody of the police. He sued the police for damages, claiming that they had not taken reasonable care to prevent him from escaping. Attempting to escape from lawful custody is a criminal offence. The Court of Appeal (Schiemann LJ and Sir Murray Stuart-Smith; Sedley LJ dissenting) held that, assuming the police to have been negligent, recovery was precluded because the injury was the consequence of the plaintiff’s unlawful act.

53.  This decision seems to me based upon sound common sense. The question, as suggested in the dissenting judgment of Sedley LJ, is how the case should be distinguished from one in which the injury is a consequence of the plaintiff’s unlawful act only in the sense that it would not have happened if he had not been committing an unlawful act. An extreme example would be the car which is damaged while unlawfully parked. Sir Murray Stuart-Smith, at para 70, described the distinction:

“The operation of the principle arises where the claimant’s claim is founded upon his own criminal or immoral act. The facts which give rise to the claim must be inextricably linked with the criminal activity. It is not sufficient if the criminal activity merely gives occasion for tortious conduct of the defendant.”

54.  This distinction, between causing something and merely providing the occasion for someone else to cause something, is one with which we are very familiar in the law of torts. It is the same principle by which the law normally holds that even though damage would not have occurred but for a tortious act, the defendant is not liable if the immediate cause was the deliberate act of another individual. Examples of cases falling on one side of the line or the other are given in the judgment of Judge LJ in Cross v Kirkby [2000] CA Transcript No 321. It was Judge LJ, at para 103, who formulated the test of “inextricably linked” which was afterwards adopted by Sir Murray Stuart-Smith LJ in Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218. Other expressions which he approved, at paras 100 and 104, were “an integral part or a necessarily direct consequence” of the unlawful act (Rougier J: see Revill v Newbery [1996] QB 567, 571) and “arises directly ex turpi causa“ (Bingham LJ in Saunders v Edwards [1987] 1 WLR 1116, 1134.) It might be better to avoid metaphors like “inextricably linked” or “integral part” and to treat the question as simply one of causation. Can one say that, although the damage would not have happened but for the tortious conduct of the defendant, it was caused by the criminal act of the claimant? (Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218). Or is the position that although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant? (Revill v Newbery [1996] QB 567).

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