Henderson v Dorset Healthcare University NHS Foundation Trust [2018] EWCA Civ 1841

Ex turpi causa "This is an appeal from the order dated 19 December 2016 of Jay J in which he held, on the trial of a preliminary issue, that claims in the common law tort of negligence brought by Ms Ecila Henderson, the appellant, against Dorset Healthcare University NHS Foundation Trust, the respondent, were barred by the doctrine of illegality. "


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The WLR Daily case summaries

[2018] WLR (D) 521

Court of Appeal

Henderson v Dorset Healthcare University NHS Foundation Trust

[2018] EWCA Civ 1841B

2018 July 10, 11;

Aug 3

Sir Terence Etherton MR, Ryder, Macur LJJ

Negligence— Duty of care— Community care worker— Mental health patient with history of paranoid schizophrenia discharged from hospital and placed in community care— Patient experiencing relapse and care provider failing to respond appropriately— Patient killing person and pleading guilty to manslaughter on ground of diminished responsibility— Patient claiming damages against care provider for breach of duty— Whether claim barred on grounds of illegality— Relevance of degree of patient’s personal responsibility for illegal action

The claimant, who had a history of paranoid schizophrenia, was discharged from hospital, having been detained under section 3 of the Mental Health Act 1983. She was placed on a community treatment order and lived in supported accommodation under the care of a community mental health team managed and operated by the defendant NHS trust. She began to experience a relapse of her psychiatric condition and failed to attend scheduled appointments. Several days later she killed her mother by stabbing her. The claimant pleaded guilty to manslaughter on the ground of diminished responsibility and was ordered to be detained in a secure hospital. In sentencing her, the judge remarked inter alia that her ability to act rationally and with self-control at the time of the incident had been substantially and profoundly impaired because of the psychotic episode, to the extent that she had had little, if any, true control over what she had done. It was agreed that the stabbing would not have happened but for the trust’s breaches of duty in failing to respond in an appropriate way to the claimant’s mental collapse. The claimant brought an action in negligence against the trust, claiming general damages under various heads, special damages and future losses. The trust admitted breach of duty but contended that all heads of claim were irrecoverable on illegality or public policy grounds, and that binding authority in the Court of Appeal and the House of Lords compelled that outcome. On a preliminary issue whether some or all of the heads of claim were irrecoverable on the ground of illegality, the judge dismissed the claims, holding that the claimant’s conviction was conclusive evidence that she had been suffering from such abnormality of mental functioning that her mental responsibility was to be regarded as “substantially impaired” for the purposes of section 2 of the Homicide Act 1957; that even though the claimant’s personal responsibility for the offence was low and/or less than significant, gradations of personal responsibility were irrelevant; that, applying Court of Appeal and House of Lords authority which had not been expressly criticised in subsequent Supreme Court authority, the law followed a unitary or monist approach to the substantial impairment issue and so it was not appropriate to seek to quantify the claimant’s substantial impairment; and that, therefore, the claims were precluded on the ground of the illegality inherent in the claimant’s conviction.

On the claimant’s appeal—

Held, appeal dismissed. In the context of a criminal conviction for unlawful killing, there was a wider and a narrower form of public policy which precluded the killer from recovering damages in proceedings for negligence against the party whose act or omission was alleged to have been responsible for bringing about the claimant’s unlawful conduct in carrying out the killing. Under the latter narrower form, there could be no recovery which flowed from loss of liberty, a fine or other punishment lawfully imposed in consequence of the claimant’s unlawful act, since it was the law, as a matter of penal policy, which caused the damage and it would be inconsistent for the law to require compensation for that damage. Under the former wider form, if the tortious conduct of the defendant merely provided the occasion or opportunity for the killing but the immediate cause of the damage was the claimant’s criminal act, it was offensive to public notions of the fair distribution of resources that the claimant should be compensated, usually out of public funds, for such damage. The consequence of those principles which bound the court was that there was a defence of illegality to the claims and all the heads of loss claimed were barred. She had been convicted of a serious criminal offence, it could not be said that she did not know the quality and nature of her act or that what she had done was wrong since her mental state had not justified a verdict of not guilty by reason of insanity, the court could not and should not go behind the conviction to ascertain whether she had no responsibility for the serious crime to which she pleaded guilty, and she was seeking to rely on her illegal act of manslaughter to advance her claims. The critical elements of the present case, the Court of Appeal and the House of Lords authority were materially identical so far as concerned the application of public policy, and it was impossible to discern in the subsequent Supreme Court authority any suggestion that the latter two cases had been wrongly decided or that they could not stand with that court’s reasoning (paras 46, 64, 65, 76, 89–91).

Clunis v Camden and Islington Health Authority [1998] QB 978B, CA and Gray v Thames Trains Ltd [2009] AC 1339B, HL(E) applied.

Patel v Mirza [2017] AC 467B, SC(E) considered.

Decision of Jay J [2016] EWHC 3275 (QB)M; [2017] 1 WLR 2673B affirmed.

Nicholas Bowen QC and Katie Scott (instructed by Russell Cooke llp) for the claimant.

Angus Moon QC, Cecily White, and Judith Ayling (instructed by DAC Beachcroft llp) for the defendant.

Robert Rajaratnam, Barrister.