Gray v Thames Trains and Others [2009] UK HL30
The defendants' negligence was responsible for the Ladbrook
Grove rail crash on 5 October 1999. Mr Gray sustained minor
physical injuries in the crash, but significant psychiatric injury
in the form of Post Traumatic Stress Disorder (PTSD). On 19 August
2001 while suffering from PTSD he stabbed to death a pedestrian
following an altercation. He pleaded guilty to manslaughter on the
grounds of diminished responsibility caused by PTSD.
Mr Gray then brought an action for negligence. As part of his
claim he sought to recover loss of earnings for the period during
which he was detained after the killing and also general damages
for his detention, conviction, feelings of guilt and remorse,
damage to reputation and an indemnity against any claims which
might be brought by dependants of the deceased. The defendants
accepted liability for the physical and mental injuries but
maintained that Mr Gray's claim for loss of earnings and general
damages effectively came to an end when he killed Mr Boultwood. The
defendants sought to rely upon the principle that these losses were
irrecoverable because of public policy which prevents someone from
obtaining compensation for the consequences of his own criminal
act: ex turpi causa non oritur actio.
In the opinion of Lord Hoffmann the maxim ex turpi causa
'expresses not so much a principle as a policy'. The rule may be
stated in a wide or a narrow form. The wider interpretation is that
you cannot recover the damage which is the consequence of your own
criminal act. In its narrower interpretation, you cannot recover
for damage which is the consequence of a sentence imposed upon you
for a criminal act. The narrow version of the rule is based on the
requirement for consistency between civil and criminal law.
Reference was made to the Law Commission consultation paper, The
Illegality Defence (number 160, 2001) which commented: "it
would be quite inconsistent to imprison or detain someone on the
grounds that he was responsible for a serious offence and then to
compensate someone for the detention."
As an alternative to his loss of earnings claim it was submitted
that on the balance of probabilities he would have continued to
lose earnings even if he had not killed Mr Boultwood. In the
opinion of Lord Rodger this approach was "to say the least
unreal." He further commented that: "In the present case,
when considering the claim for loss of earnings, a civil court
should bear in mind that it is desirable for the criminal and civil
courts to be consistent in the way that they regard what the
claimant did." Mr Gray was detained in hospital and unable to work
it was therefore "inconsistent with the policy underlying the
making of the orders for a civil court now to award the claimant
damages for loss of earnings relating to the period when he was
subject to them."
It was held that the narrow interpretation of the ex turpi causa
rule was sufficient to dispose of Mr Gray's claims for loss of
earnings after his arrest and for general damages for his
detention, conviction and damage to reputation on the grounds that
they were all caused by the lawful sentence imposed upon him for
manslaughter.
As for the claim for indemnity and feelings of guilt and
remorse, however, the wider version of the rule should be applied.
Lord Hoffmann considered that the wider rule was justified on the
ground that it would be "offensive to public notions of the
fair distribution of resources that the claimant should be
compensated (usually out of public funds) for the consequences of
his own criminal conduct."
In summary the House of Lords held that Mr Gray should not be
compensated for his loss as a claim of this kind "undoubtedly
falls foul of ex turpi causa maxim since the claimant is asking the
defendant to compensate him for the consequences of his own
deliberate criminal act in killing Mr Boultwood."
It was observed that a civil court will not award damages to
compensate a claimant for an injury or disadvantage which the
criminal courts of the same jurisdiction have imposed on him by way
of punishment for a criminal act for which he was responsible.
Contributed by Nicola Brown