InGray v. Thames Trains [2009] UKHL 33, [2009] 3 W.L.R. 167 the claimant was involved in a 1999 train crash caused by the negligence of the defendants. He suffered minor physical injuries and post-traumatic stress disorder (“PTSD”). In 2001, Mr Gray fatally assaulted a man; at his ensuing prosecution, the Crown accepted a plea of manslaughter on the grounds of diminished responsibility caused by the PTSD. He was sentenced to be detained indefinitely under the Mental Health Act 1983.
The defendants admitted liability up to the date that the claimant was sentenced, but thereafter resisted his claim (being, more specifically, for loss of earnings, general damages for feelings of remorse and damage to reputation, and an indemnity against any liabilities to the deceased). The defendants argued that these heads of loss were excluded by the maxim ex turpi causa non oritur actio (or more accurately, non oritur damnum). The House of Lords agreed, reversing the Court of Appeal [2008] EWCA Civ 713.
Lord Hoffmann identified a narrower and a wider version of ex turpi causa. The narrower rule was that “you cannot recover for damage which is the consequence of a sentence imposed upon you for a criminal act”, at [32]. As Lord Hoffmann pointed out, this is well established (cf. Clunis v. Camden and Islington Health Authority [1998] Q.B. 978), and can readily be justified by the need to preserve consistency across the legal system. As Samuels J.A. said in a judgment quoted with approval by both Lord Hoffmann and Lord Rodger of Earlsferry: “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”: State Rail Authority of New South Wales v. Wiegold (1991) 25 N.S.W.L.R. 500, 514.
For Lord Hoffmann, this disposed of the claim for lost earnings and damage to reputation, since these losses were caused by the lawful sentence imposed upon the claimant. But his Lordship thought it might be more difficult to bring within this narrower version of the rule the claimant's feelings of remorse and the potential liability against which he claimed to be indemnified, since these were not consequences of the sentence (as opposed to the crime). But his Lordship held these were ruled out by the “wider and simpler version” of ex turpi causa, viz. “you cannot recover for damage which is the consequence of your own criminal act”, at [32].
This wider rule was not justified by the need to preserve strict consistency in the law, but rather “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”, at [51]. If its rationale seems less clear-cut, the application of the wider principle was also apt to be controversial. As Lord Hoffmann said, at [51]: “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.” The only guidance that his Lordship offered was “to avoid metaphors like ‘inextricably linked’ … and to treat the question as simply one of causation,” at [54].
Lord Hoffmann experienced no difficulty in concluding that the remaining heads of claim had been caused by the manslaughter, and were irrecoverable. But this is self-evidently a difficult question, even stripped of its time-honoured metaphors. Indeed, the Court of Appeal came to a different conclusion, reasoning that the claimant had lost earnings, as a result of the defendants' tort, both before and after the date of the court's sentence, and therefore: “The manslaughter [was] not inextricably bound up with that claim” [2008] EWCA Civ 713 at [22].
Lord Hoffmann professed, at [48], not to understand the Court of Appeal's reasoning; it was “plain” that the manslaughter caused the claimant's inability to earn during his detention. He may still have lost earnings were it not for the manslaughter, but a claim on such a “counter-factual basis” was for Lord Hoffmann ruled out by Jobling v. Associated Dairies [1982] A.C. 794.
But Lord Brown of Eaton-Under-Heywood doubted, at [96], whether the mere citation of Jobling was sufficient to dispose of the point, invoking Baker v. Willoughby [1970] A.C. 467 as a case “demonstrat[ing] if nothing else that on occasion justice will require some modification of the vicissitudes principle” – i.e. that subsequent adverse events affecting a loss of earnings claim must be taken into account. Unlike Jobling, the “vicissitudes” in Gray (the manslaughter, conviction and sentence) were caused by the defendant's tort, at least in part (Mr Gray would not have been homicidal but for the PTSD). Corr v. IBC Vehicles [2008] A.C. 884 showed that subsequent acts of the claimant, for which the tortfeasor may be held jointly responsible, need not causally obliterate a claim. In the end, for Lord Brown, Mr Gray's claim for damages failed on public policy rather than strictly causal grounds (commission of a serious criminal offence, cf. the claimant's suicide in Corr). Similarly, Lord Rodger, at [76], “happily” found it unnecessary “to review the merits of Baker v. Willoughby”.
The House of Lords' decision in Gray seems plainly correct. The Court of Appeal had questioned the “traditional harsh view of public policy” when “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”: [2008] EWCA Civ 713, at [49]. None of this seemed to find favour in the House of Lords, although their Lordships did not engage directly with such arguments. Perhaps they felt, quite understandably, that radical judicial reform of the ex turpi causa defence would be out of place while the Law Commission's marathon examination of the issue still grinds on: see, for the latest instalment, The Illegality Defence: A Consultative Report CP No. 189 (January 2009).
