NEGLIGENCE — Causation — Manslaughter — Claimant injured in railway accident suffering post traumatic stress disorder causing severe depression and psychological changes — Claimant guilty of manslaughter due to diminished responsibility — Train and track operators admitting liability in negligence for injuries including post traumatic stress disorder prior to manslaughter— Whether on public policy grounds claimant entitled to loss of earnings only to date manslaughter committed
A claim in negligence was not defeated by public policy unless the claim or a head of claim was inextricably bound up with or linked to the claimant’s criminal conduct. Where the depression the claimant suffered as a result of the defendant’s negligence led him to kill, he could recover damages for loss of earnings after he committed manslaughter if his claim was not inextricably connected with his criminal activity.
The Court of Appeal so held, allowing the appeal of the claimant, Kerrie Francis Gray, against the decision of Flaux J on 6 July 2007 that his claim for loss of earnings was precluded on the ground of public policy based on the doctrine of ex turpi causa non oritur actio. The defendants, Thames Trains Ltd and Network Rail Infrastructure Ltd, had admitted liability for negligence and damages up to the date of the manslaughter.
SIR ANTHONY CLARKE MR, giving the judgment of the court, said that the claimant was a victim of the Ladbroke Grove rail crash on 5 October 1999. He suffered minor physical injuries but the accident had a major psychological impact on him in the form of post traumatic stress disorder. On 19 August 2001 he stabbed a stranger to death. He pleaded guilty to manslaughter on the grounds of diminished responsibility and was ordered to be detained in a hospital under s 37 of the Mental Health Act 1983. The defendants, the train and track operators, admitted that his injuries, including post traumatic stress disorder, were caused by their negligence and admitted liability for his losses, including loss of earnings, incurred before 19 August 2001. They denied liability in respect of losses after that date on the ground of ex turpi causa non oritur actio. The claimant recognised that he could not claim compensation for the consequences of being detained in a mental hospital because he could not rely on his detention ordered by the court consequent upon his guilty plea to manslaughter. He claimed earnings lost as a result of the post traumatic stress disorder, caused by the defendants’ negligence, by reason of which he was unable to earn as much as he would have done but for the accident. The judge rejected his claim for loss of earnings after the manslaughter on the ground that it was inextricably bound up with his own criminal conduct. His Lordship reviewed the authorities and concluded that where the cause of action did not arise out of an illegal act, the question was whether the relevant loss was so closely connected or inextricably bound up with the claimant’s criminal or illegal conduct that the court could not permit him to recover without appearing to condone that conduct. The claimant’s case was simply that he had suffered a loss because, but for the tort, he would have earned money both before and after 19 August 2001 and was therefore entitled to recover the whole of his loss of earnings from the defendants. Their Lordships held that the manslaughter was not inextricably bound up with that claim. Although the legal burden of establishing causation in respect of each head of loss remained on the claimant, the evidential burden of showing that the manslaughter and the claimant’s incarceration amounted to a break in the chain of causation was on the defendants. In those circumstances it was for the trial judge to decide whether it broke the chain of causation or not. If it did the claim would fail for that reason. The court could hold that the Law Reform (Contributory Negligence) Act 1945 applied on the basis that the manslaughter was “fault” within s 1(1) of the Act. so that the loss of earnings was partly caused by the tort and partly caused by the claimant’s deliberate criminal act. The apportionment would separate the responsibility of the claimant from that of the defendants and ensure that the claimant only recovered for the loss of earnings for which the defendants were truly responsible. In that event the claimant’s recovery would not be inextricably bound up with the manslaughter but distinct from it. Where the manslaughter did not break the chain of causation or there was less than 100% contributory negligence on the claimant’s part, so that the claim was not inextricably linked with the criminal conduct, public policy did not prohibit recovery: see Cross v Kirby The Times, 5 April 2000; Court of Appeal (Civil Division) Transcript No 321 of 2000. Applying Corr v IBC Vehicles Ltd  2 WLR 499, it was the depression suffered by the claimant caused by the defendants’ negligence that led the claimant to kill the victim. In those circumstances it was strongly arguable that there was no break in the chain of causation.
Gray v Thames Trains Ltd and another  EWCA Civ 713;  WLR (D) 210
CA: Sir Anthony Clarke MR, Tuckey and Smith LJJ: 25 June 2008
Appearances: Anthony Scrivener QC and Toby Riley-Smith (Collins, Watford) for the claimant; Christopher Purchas QC (Halliwells LLP, Manchester) for the defendants.
Reported by: Susan Denny, barrister