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

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55.  However the test is expressed, the wider rule seems to me to cover the remaining heads of damage in this case. Mr Gray’s liability to compensate the dependants of the dead pedestrian was an immediate “inextricable” consequence of his having intentionally killed him. The same is true of his feelings of guilt and remorse. I therefore think that Flaux J was right and I would allow the appeal and restore his judgment.


My Lords,

56.  I have had the advantage of reading in draft the opinions on this appeal of my noble and learned friends Lord Hoffmann and Lord Rodger of Earlsferry and find myself wholly convinced by the reasons given by my noble and learned friends for their conclusion that this appeal should be allowed. There is nothing I can usefully add to those reasons and I, too, would allow this appeal.


My Lords,

57.  Up until October 1999 Mr Kerrie Gray led a perfectly ordinary life: He was in regular employment, was in a long-term relationship with a partner and had no history of violent behaviour. All that changed when, on 5 October 1999, he was injured in the Ladbroke Grove Rail Crash. His physical injuries were not serious, but he developed post-traumatic stress disorder (PTSD), which led to depression and to a significant change in his personality. He became withdrawn, was liable to angry outbursts and shunned physical contact - which, naturally, put a strain on his relationship with his partner. He began drinking heavily. From the middle of 2000 he was receiving psychiatric treatment. Although he had returned to work in December 1999, his attendance became irregular, due to various manifestations of PTSD. He changed jobs. During 2001 he found coping with work increasingly difficult. He was absent for periods in May and June. On 13 August he failed to return to work after a period of authorised absence because of an infection.

58.  On 19 August 2001 things got dramatically worse. Mr Gray, who had been drinking, was driving along Calcutta Road in Tilbury when a Mr Boultwood, who was drunk, stumbled into the roadway, causing Mr Gray to have to stop. Mr Boultwood then punched the windows of the car and Mr Gray got out. A scuffle ensued, which some bystanders brought to an end. Mr Gray then drove to the home of his partner’s parents, took a knife, and drove back to look for Mr Boultwood. When he found him, Mr Gray grabbed him by the throat and stabbed him several times. Mr Boultwood died the following day. Mr Gray gave himself up to the police.

59.  Mr Gray was originally charged with murder, but on 22 April 2002 the Crown accepted his plea of diminished responsibility on the ground that he had been suffering from a serious psychological disorder, viz, PTSD, at the time of the killing. While the House has been supplied with no detailed information about the criminal proceedings, we can infer that, following Mr Gray’s plea, the judge made an interim order for his detention under section 38 of the Mental Health Act 1983 (“the 1983 Act”). Moreover, we know that on 4 July 2002 he was admitted to Runwell Hospital and that on 3 March 2003, at Wood Green Crown Court, Rafferty J made an order for his detention in hospital under section 37 of the 1983 Act, with a restriction order under section 41. Both orders remain in force.

60.  From 20 August 2001 until today, therefore, Mr Gray has either been in prison or in Runwell Hospital and so has not been in a position to work.

61.  In August 2005 Mr Gray raised the present proceedings against Thames Trains Ltd and Network Rail Infrastructure Ltd (formerly known as Railtrack PLC) for damages for the loss which he had suffered as a result of his injuries in the rail crash. They admitted liability but disputed various aspects of his claim for damages. In particular, in their Amended Defence, they relied on “the maxim of law which states that a claimant cannot base a cause of action or head of claim upon his own wrong doing (ex turpi causa).” Although the point was expressed generally in this way in the defence, by the time of the trial before Flaux J the main dispute concerned the claim for loss of earnings after 19 August 2001. At the outset of the trial, counsel agreed that the judge should decide the legal issue as to whether the claimant’s claim for loss of earnings, during the time he was in prison or in hospital as a result of committing manslaughter, was precluded on the ground of public policy summed up in the maxim ex turpi causa non oritur actio. Flaux J held that it was; the Court of Appeal that it was not. The defendants appeal to this House.

62.  Before the House the defendants continued to fight under the banner ex turpi causa non oritur actio - or on a particular application of the maxim. Not surprisingly, therefore, the focus of the discussion in the judgments below, and of counsel’s submissions to the appellate committee, tended to be on the application of that maxim. But Mr Scrivener QC was surely right to this extent, at least: there was nothing unlawful or even base or immoral about the circumstances giving rise to the claimant’s right of action against the defendants. That right arose on 5 October 1999 when, as a result of their admitted negligence, he was injured in the Ladbroke Grove crash. Although Mr Gray waited until August 2005 before starting proceedings, at that date his right of action was precisely the same lawful right of action as had accrued to him when the accident occurred. So the defendants’ real objection cannot be to the lawfulness of the action as such. Rather, they object that the particular “head of claim” for loss of earnings after 19 August 2001 is precluded by the working of the ex turpi causa doctrine.

63.  This case is therefore completely different from cases, such as National Coal Board v England [1954] AC 403 or Cross v Kirkby The Times 5 April 2000; [2000] CA Transcript No 321 (much relied on by the Court of Appeal), where the argument is that, at the time when he was injured, the claimant was engaged in an unlawful activity and so the policy of the law should be to refuse him a right of action for any injuries sustained in those circumstances. The maxim ex turpi causa non oritur actio is as good a way as any of identifying the policy which the court is asked to apply in those circumstances. And, of course, in such cases questions can arise about the exact scope of the maxim. In the present (very different) case, however, Mr Scrivener appeared to advance Mr Gray’s claim on two bases. In my view the maxim is relevant to the first, but may tend to divert attention from the true nature of the alternative version of the claim and of the defendants’ response to it.

64.  First, the claimant alleges that the defendants’ negligence caused him to develop psychological problems, which in turn led to him committing manslaughter, and so being detained in Runwell Hospital under the 1983 Act, and losing earnings as a result. In my view a claim of that kind undoubtedly falls foul of the ex turpi causa maxim since the claimant is asking the defendant to compensate him for the consequences of his own deliberate criminal act in killing Mr Boultwood.

65.  Admittedly, such a claim succeeded in Meah v McCreamer [1985] 1 All ER 367, but Woolf J specifically recorded, at p 371j, that counsel for the defendant had not advanced a public policy argument against the claim. As the Court of Appeal held in Clunis v Camden and Islington Health Authority [1998] QB 978, 990C, Woolf J’s decision cannot accordingly be regarded as authoritative on the issue.

66.  The decision of the Court of Appeal in Clunis was indeed to the opposite effect. The plaintiff, who had a history of mental disorder, was discharged from hospital. After his discharge, he failed to attend appointments arranged for him and, within two months, he stabbed a man to death in a sudden and unprovoked attack. He pleaded guilty to manslaughter on the ground of diminished responsibility and was ordered to be detained in a secure hospital. He then sued the health authority for damages on the ground that he would not have killed the man and so would not have been subject to prolonged detention, if the authority had not negligently failed to treat him with reasonable professional care and skill and if his responsible medical officer had not failed to arrange a mental health assessment in time. The Court of Appeal struck out his claim. Beldam LJ summarised the decision of the court in this way, at p 990D-E:

“In the present case we consider the defendant has made out its plea that the plaintiff’s claim is essentially based on his illegal act of manslaughter; he must be taken to have known what he was doing and that it was wrong, notwithstanding that the degree of his culpability was reduced by reason of mental disorder. 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….”

In its consultation paper on The Illegality Defence in Tort (2001), para 4.100, the Law Commission commented, succinctly and correctly, that the decision seemed 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.”

67.  That line of reasoning had been adopted, some years before, by Samuels JA in State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500. The plaintiff had been seriously injured while carrying out maintenance work on overhead electric lines in the course of his employment with the Rail Authority. The authority continued to employ him, but his injuries meant that he could undertake only light duties and his earnings were, accordingly, reduced. In order to make up the deficit after the payments under the workers’ compensation scheme finished, the plaintiff took up the cultivation of Indian hemp. He was, however, arrested, pleaded guilty to the relevant drug trafficking offence, and was imprisoned. He lost his job. In the trial of his claim against the Rail Authority for damages for his injuries, the judge proceeded on the basis that the plaintiff would never have got involved in cultivating hemp if he had not been injured due to the defendants’ negligence. With obvious reluctance, Samuels JA accepted that finding of fact, but went on to hold that - despite it - the plaintiff was not entitled to damages for being imprisoned and for his loss of earnings while in prison. His Honour declined to follow Woolf J’s decision in Meah v McCreamer [1985] 1 All ER 367, and expressed his own view in this way, 25 NSWLR 500, 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.”

68.  The Supreme Court of Canada discussed the point more recently in British Columbia v Zastowny [2008] 1 SCR 27. While a prisoner, the plaintiff was the victim of two sexual assaults by a prison officer. On his release from prison, he became addicted to crack cocaine, committed various offences and spent 12 of the next 15 years in prison. The plaintiff eventually sued the prison authorities for damages for the sexual assaults. The trial judge held that the assaults had caused him to start using heroin and had exacerbated his substance abuse and criminality. He was awarded damages for, inter alia, his loss of earnings during the periods which he had subsequently spent in prison. The Supreme Court allowed the prison authorities’ appeal against that part of the award. Delivering the unanimous judgment of the Court, Rothstein J observed, at pp 37-38, paras 22-23:

“23 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, at p 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. As Deschamps J. found in Quebec (Commission des droits de la personne et des droits de la jeunesse) v Maksteel Québec Inc [2003] 3 SCR 228, 2003 SCC 68, at para 33, ‘[e]very incarcerated offender must suffer the consequences that result from being imprisoned, namely loss of employment for unavailability.’ An award of damages for wages lost while incarcerated would constitute a rebate of the natural consequence of the penalty provided by the criminal law.

23 Preserving the integrity of the justice system by preventing inconsistency in the law is a matter of judicial policy that underlies the ex turpi doctrine.”

The court went on, at pp 41-42, para 30, to observe:

“The judicial policy that underlies the ex turpi doctrine precludes damages for wage loss due to time spent in incarceration because it introduces an inconsistency in the fabric of the law that compromises the integrity of the justice system. In asking for damages for wage loss for time spent in prison, Zastowny is asking to be indemnified for the consequences of the commission of illegal acts for which he was found criminally responsible. Zastowny was punished for his illegal acts on the basis that he possessed sufficient mens rea to be held criminally responsible for them. He is personally responsible for his criminal acts and the consequences that flow from them. He cannot attribute them to others and evade or seek rebate of those consequences. As noted by Samuels JA in State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500, to grant a civil remedy for any time spent in prison suggests that criminally sanctioned conduct of an individual can be attributed elsewhere.”

69.  This line of authority, with which I respectfully agree, shows that a civil court will not award damages to compensate a claimant for an injury or disadvantage which the criminal courts of the same jurisdiction have imposed on him by way of punishment for a criminal act for which he was responsible. That principle can indeed be analysed in terms of the ex turpi causa rule since the plaintiff cannot even begin to mount his claim without founding on his own criminal activity. I would accordingly reject the first version of the claimant’s claim.

70.  But Mr Scrivener has an alternative version. He submits that, as a result of his injuries in the crash, Mr Gray was losing earnings immediately before 19 August 2001 and, on the balance of probabilities, he would have continued to do so after that date, even if he had not killed Mr Boultwood. He was therefore entitled to damages from the defendants for his loss of earnings after, just as much as before, 19 August. In effect, on this approach that date had little significance for his claim for loss of earnings.

71.  Indeed, putting the matter at its boldest, the claimant asserted that the manslaughter and his resulting custody were completely irrelevant: due to the effects of the train crash, he would in any event have landed up being detained in a mental hospital and losing all his earnings, even without the manslaughter. But, in that form, the claim cannot survive Flaux J’s finding, based on the available medical evidence, 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, even if he had not committed the manslaughter, let alone that he would not have been able to engage in gainful employment at any time from August 2001 through the summer of 2008 (when he may be released from Runwell Hospital) to some indeterminate date in the future.”

72.  Even though his claim cannot be pitched so high, at trial the claimant might well be able to show that, if he had not committed the manslaughter, he would have continued to suffer some loss of earnings after 19 August 2001. If so, Mr Scrivener submits, the court should award the claimant damages for that loss: his conviction for manslaughter does not come into the picture and should simply be ignored.

73.  I would go along with Mr Scrivener’s argument to this extent: if the claimant had a perfectly lawful right of action covering loss of earnings after 19 August 2001, that claim did not suddenly become unlawful when he killed Mr Boultwood. But that is not an end of the matter: the killing may still provide a defence to the claim for loss of earnings, even if it did not make that claim unlawful. And, in fact, it is not the claimant but the defendants who found on the events relating to the manslaughter and its consequences. In effect, they say that they are not liable for any loss of earnings after 19 August 2001 because, by killing Mr Boultwood, the claimant put himself in a position where he was prevented from working and earning. On this version of the claim, the real dispute between the parties is, therefore, as to whether the claimant’s admitted killing of Mr Boultwood and his subsequent conviction and detention provide a defence to any claim, which the claimant would otherwise have, for damages for loss of earnings after 19 August 2001.

74.  That being the issue, I do not derive assistance from the decision of this House in Corr v IBC Vehicles Ltd [2008] AC 884 which dealt with liability for the suicide of a man who had suffered depression as a result of injuries for which the defendants were responsible. Since suicide is not a crime, the questions of legal policy are quite different. Nor, on the other hand, do I agree with the Court of Appeal, at para 18 of the judgment of the Master of the Rolls, that the issue can be resolved by asking whether the facts giving rise to the claimant’s claim for loss of earnings “are inextricably linked with his criminal conduct.” For one thing, opinions are likely to differ as to what facts are or are not “inextricably linked” with the claimant’s criminal conduct - here the Court of Appeal and the trial judge reached different answers. In any event, even if the facts giving rise to a claim are not “inextricably linked” with the claimant’s criminal conduct, it does not follow that, as a matter of legal policy, his conduct should have no bearing on his right to recover damages from the defendants for his loss of earnings.

75.  The immediately obvious objection to the claimant’s formulation of his claim for loss of earnings is that it proceeds by ignoring what actually happened - he killed Mr Boultwood and was detained as a result. Yet it is well established that “the court should not speculate when it knows". In other words, the judge should base any award of damages on what has actually happened, rather than on what might have happened, in the period between the tort and the time when the award is to be made. So, even if the court were satisfied that the claimant would have continued to lose earnings after 19 August 2001, due to the PTSD brought on by the accident, it would be highly artificial to ignore the fact that, by committing manslaughter, the claimant had created a new set of circumstances which actually made it impossible for him to work and to earn after that date. Why should the defendants pay damages on the basis that, but for his PTSD, the claimant would have been able to work after 19 August, when, as the court knows, because of the manslaughter, at all material times after that date he was actually in some form of lawful detention which prevented him from working?

76.  The claimant’s approach is, to say the least, unreal. If that were the worst that could be said against it, it might stand in the uncomfortable company of Baker v Willoughby [1970] AC 467. There the plaintiff was injured in a road accident which left him with a permanently stiff leg. About three years later, just before his action of damages was due to come on for trial, he was shot in the same leg, which had then to be amputated. This House held that the plaintiff’s disability could be regarded as having two causes and, where the later injuries became a concurrent cause of the disabilities caused by the injury inflicted by the defendant, they could not reduce the amount of the damages which the defendant had to pay for those disabilities. So the defendants had to pay the same sum by way of damages for the plaintiff’s stiff leg, even though it had actually been amputated. In Jobling v Associated Dairies Ltd [1982] AC 794, 806G, Lord Edmund-Davies described this approach as “unrealistic” and Lord Keith of Kinkel concluded, at p 814E, that “in its full breadth” the decision was “not acceptable". Happily, there is no need to review the merits of Baker v Willoughby in this case since there is a fundamental objection to this version of the claimant’s claim for loss of earnings which, in my view, takes it well beyond any possible reach of the reasoning in that case. At this point I return to the desirability of different organs of the same legal system adopting a consistent approach to the same events.

77.  In British Columbia v Zastowny [2008] 1 SCR 27, 38, at para 23, Rothstein J treated the need to preserve the integrity of the justice system, by preventing inconsistency in the law, as a matter of judicial policy that underlay the ex turpi causa doctrine. In other words, in the circumstances of that case the application of the ex turpi causa doctrine helped to promote the more fundamental legal policy of preventing inconsistency in the law. That such a policy exists is beyond question. In Zastowny and the preceding cases, the need was to ensure that the civil and criminal courts were consistent in their handling of the plaintiff’s criminal conduct and its consequences. But that is simply one manifestation of a desirable attribute of any developed legal system. In classical Roman law the jurists were at pains to ensure that the various civil law and praetorian remedies worked together in harmony in relation to the same facts. One of the hallmarks of a good modern code is that its provisions should interrelate and interact so as to achieve a consistent application of its overall policy objectives. Complete harmony may well be harder to achieve in an uncodified system - hence the constant attention paid by the classical jurists to the problem - since different remedies will have developed at different times and in response to particular demands. But the gradual drawing together of law and equity in English law illustrates the same pursuit of harmony and consistency. And, certainly, the courts are conscious that inconsistencies should be avoided where possible. So, for instance, a court should not award damages in tort if a contractual claim based on the same events would be excluded by some term in the contract between the parties. Similarly, a court should not give a remedy on the ground of unjust enrichment if this would be tantamount to enforcing a contract which the law would treat as void in the circumstances. Likewise, in the present case, when considering the claim for loss of earnings, a civil court should bear in mind that it is desirable for the criminal and civil courts to be consistent in the way that they regard what the claimant did. As Samuels JA observed in State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500, 514, failure to do so would generate the sort of clash between civil and criminal law that is apt to bring the law into disrepute.

78.  After he killed Mr Boultwood, the claimant was detained, first in prison and then in Runwell Hospital, in accordance with a number of orders of the criminal courts. He did not challenge any of those orders. The civil courts must therefore proceed on the basis that, even though the claimant’s responsibility for killing Mr Boultwood was diminished by his PTSD, he nevertheless knew what he was doing when he killed him and he was responsible for what he did. Similarly, it must be assumed that the disposals adopted by the criminal courts were appropriate in all the circumstances, including the circumstance that he was suffering from PTSD. Rafferty J imposed a hospital order and a restriction order. While it is correct to say that a hospital order, even with a restriction, is not regarded as a punishment, this does not mean that the judge was treating the claimant as not being to blame for what he did. On the contrary, as the Court of Appeal recalled in R v Birch (1989) 11 Cr App R (S) 202, 215, even where there is culpability, a hospital order with a restriction order may well be the appropriate way to deal with a dangerous and disordered person. We must therefore just proceed on the basis that Rafferty J correctly considered that the orders which she made were “necessary for the protection of the public from serious harm", having regard, in particular, to the claimant’s violent attack on Mr Boultwood.

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