Negligence – Damages – Criminal conduct - Ex turpi causa - Post-traumatic stress disorder

Kerrie Francis Gray v (1) Thames Trains Ltd (2) Network Rail Infrastructure Ltd (formerly Railtrack Plc) (2008): CA (Civ Div) (Sir Anthony Clarke Master of the Rolls, Lords Justice Tuckey, Smith): 25 June 2008

The appellant (G) appealed against a decision that he was not entitled to damages for loss of earnings due to the principle of ex turpi causa.

G had been involved in the Ladbroke Grove rail crash. Although G received only minor physical injuries he ­suffered severe post-traumatic stress disorder which caused him to undergo a significant personality change. G later stabbed a stranger to death. G pleaded guilty to manslaughter and was ordered to be detained in a hospital under section 37 of the Mental Health Act 1983. G brought a claim for damages against the defendants (T) on the basis that, by reason of the post-traumatic stress disorder caused by T’s negligence, he was not able to earn as much as he would have done but for the accident. T admitted that G’s injuries were caused by their negligence and that in principle they were liable for G’s loss of earnings up to the date of the manslaughter. However, they denied liability in respect of losses incurred after the manslaughter on the basis of ex turpi causa. The judge rejected G’s claim for loss of earnings after the manslaughter and held that G fell foul of the ex turpi causa principle derived from Holman v Johnson 98 ER 1120 KB as his claim was closely connected with or inextricably bound up with his own criminal conduct. G submitted that the judge applied the wrong test, or alternatively, that G’s claim was not connected with or ­inextricably bound up with the manslaughter in the sense used by the relevant authorities.

Held: (1) The test in Tinsley v Milligan (1994) 1 AC 340 HL was too narrow to apply to a case in tort such as the instant case. As applied to a case like the instant one, where it was not suggested that the cause of action arose out of an illegal act, the question was whether the relevant loss was inextricably linked with G’s illegal act, Tinsley v Milligan distinguished. G’s case was simply that he had suffered a loss because, but for the tort, he would have earned money both before and after the date of the manslaughter and that he was therefore entitled to recover the whole of his loss of earnings from T. The manslaughter was not inextricably bound up with that claim.

(2) The evidential burden of showing that the manslaughter and G’s incarceration amounted to a break in the chain of causation was on T. Unless there was binding authority to the contrary, where the manslaughter did not break the chain of causation or where there was contributory fault on the part of the claimant of less than 100%, so that the claim was not inextricably bound up with or linked with the criminal conduct, public policy did not prohibit recovery, Cross v Kirkby Times, 5 April 2000 CA (Civ Div) applied. There was nothing in Clunis v Camden and Islington HA (1998) QB 978 CA (Civ Div) or in Worrall v British Railways Board unreported 29 April 1999 CA (Civ Div) that was inconsistent with the decision or reasoning in Cross v Kirby, Clunis v Camden and Worrall v British Railways Board considered. It followed that there was nothing in them that was inconsistent with the proposition that a claim was not defeated by public policy unless the claim or a head of claim was inextricably bound up with or linked with the criminal conduct. In so far as G claimed loss of earnings, that was not the case and G’s claim should be allowed.

Appeal allowed.

Anthony Scrivener QC, Toby Riley-Smith (instructed by Collins) for the appellant; Christopher Purchas QC (instructed by Halliwells LLP) for the respondents.