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Background emily-campbell-002

The claimant had a long history of mental health difficulties arising from her diagnosis of paranoid schizophrenia. Following a period spent in hospital detention, the claimant received outpatient psychiatric treatment. During this time, her condition deteriorated and she stabbed her mother to death while experiencing a serious psychotic episode. She was charged with murder and pleaded guilty to manslaughter by reason of diminished responsibility. An independent investigation found that failings by the Trust in her care and treatment meant that a serious incident of some kind was foreseeable based on her behaviour in previous psychotic episodes. The Trust admitted liability to the effect that the claimant’s mother would not have been killed but for its breaches of duty in failing to respond adequately to the claimant’s deterioration in mental health.

The claimant subsequently brought claims for damages in the common law tort of negligence against the defendant NHS Trust on the basis that had she been provided with adequate care and treatment by the Trust, the death of her mother could have been avoided and she would not have been detained indefinitely thereafter. She claimed damages under six heads which included general damages for pain suffering and loss of amenity, damages for loss of liberty, and special damages including future losses for psychotherapeutic treatment. The Trust disputed that the claimant was entitled to any damages by reason of illegality and/or public policy grounds.

The claims for damages were dismissed at first instance. The High Court held that it was bound by earlier decisions dismissing similar claims on grounds of illegality. It held that to award the claimant damages in the present case would result in a legal inconsistency whereby the claimant was punished with one hand but rewarded with the other. The Court of Appeal dismissed her appeal on the grounds that a claimant cannot be compensated for the effects of their own criminal activity. It held that the Supreme Court decision of Patel v Mirza [2016] UKSC 42, in which a more flexible approach to the illegality doctrine was recently adopted in a contractual context, did not apply to this sort of case. The claimant (through her litigation friend) appealed to the Supreme Court.

Comment

This appeal invites the Supreme Court to consider whether the common law doctrine of illegality precludes a claimant who commits a criminal offence, during a serious psychotic episode, from recovering damages for loss arising out of that offence which she would not have committed but for the defendant’s negligence. The Supreme Court will be tasked to consider whether the guidance it laid down in Patel v Mirza [2016] UKSC 42 provides an authoritative universal test for the operation of the illegality defence in tortious claims or whether a more appropriate framework in this case is that articulated in the earlier and materially similar cases of Gray v Thames Trains [2009] UKHL 33 and in Clunis v Camden and Islington Health Authority [1998] QB 978. The present case comes as an opportunity for the court to interpret these authorities in light of the framework it laid down in Patel v Mirza and offer much-needed guidance on both the scope and application of the illegality doctrine as well as the public policy considerations that inform it. The court’s analysis of the issues raised by this case will no doubt have significant implications for compensation claims in difficult cases involving illegal conduct where the claimants lack responsibility for their actions in the future.

Ecila Henderson (A Protected Party, by her litigation friend, The Official Solicitor) v Dorset Healthcare University NHS Trust will be heard by the Supreme Court via video-link on 11-12 May 2020.