?Killer blames rail crash, demands compensation? said the headlines after the Court of Appeal judgment ([2008] EWCA Civ 713) which allowed Kerrie Gray, injured in the Ladbroke Grove rail crash of 1999, to claim damages for loss of earnings after suffering PTSD in the crash. One night after the crash he stabbed a man to death. He was convicted of manslaughter and detained under s.37 of the Mental Health Act 1983. The Court of Appeal had allowed his claim for loss of earnings up to and following his manslaughter. The Master of the Rolls had also expressed the view that what he called the traditional harsh view of public policy expressed in the case of Clunis (the schizophrenic who stabbed Jonathan Zito to death on Finsbury Park Station and who became a cause c?l?bre) should be revisited.

The House of Lords roundly rejected Gray’s claim and allowed the train company’s appeal, determining that the public policy expressed in the doctrine of ex turpi causa non oritur actio prevented recovery. Lord Hoffman said that the wider and simpler version of that public policy was that you could not recover for damage which was the consequence of your own criminal act. In its narrower form, it was that you could not recover for damage which was the consequence of a sentence imposed upon you for a criminal act. In such a case it was the law which had caused the damage and it would be inconsistent for the law to require that the person be compensated for that damage. The narrower version precluded the claim for loss of earnings after the claimant had been sentenced for the manslaughter.  Lord Rodger said that civil courts had to proceed on the basis that even though Gray’s responsibility for the killing had been diminished by his stress disorder, he nevertheless had known what he was doing and was responsible for what he did. And it had to be assumed that the disposals adopted by the criminal courts were appropriate in all the circumstances, including the circumstance that he was suffering from the stress disorder. While it was correct to say that a hospital order, even with a restriction, was not regarded as a punishment, that did not mean that the judge was treating the claimant as not being to blame for what he did.


Interestingly Lord Phillips said that it was not necessarily right to make no distinction between a sentence of imprisonment and a hospital order. While a conviction for an offence punishable with imprisonment was necessary to confer jurisdiction for the imposition of a hospital order, the offence leading to that conviction might have no relevance to the decision to make the order. Where the sentencing judge made it clear that the defendant’s offending behaviour played no part in the decision to impose the hospital order, it was strongly arguable that the order should be treated as being a consequence of the defendant’s mental condition and not of his criminal act. In that event ex turpi causa would not apply.  That however was not the case here.  The trial judge had held, on the basis of the evidence of a psychiatrist who had examined  Gray immediately prior to the manslaughter that it could not be said that, on a balance of probabilities, Gray would have been admitted to or detained in a psychiatric hospital if he had not committed manslaughter.

Jonathan Glasson, Matrix

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