Gray v Thames Trains Ltd. & Anor

The Claimant in this case, Mr Kerrie Gray, who is now aged 47, was one of the victims of the Ladbroke Grove rail crash which occurred on 5 October 1999. He suffered relatively minor physical injuries, but the accident had a major psychological impact upon him, in the form of Post Traumatic Stress Disorder (“PTSD”). On 19 August 2001 he stabbed a stranger, Mr Frederick Boultwood, to death in Tilbury, Essex. On 22 April 2002, he pleaded guilty at the Crown Court at Chelmsford to manslaughter on the grounds of diminished responsibility. He was ordered to be detained in a hospital under section 37 of the Mental Health Act 1983. Since that date, he has been held at Runwell Hospital in Essex.

The present claim was issued in August 2005 against Thames Trains, as the operators of the train on which he was travelling at the time of the crash and Network Rail (formerly Railtrack), as the party responsible for the railway infrastructure. The claimant claims damages for negligence. Although some of his claim relates to losses suffered before the date of the manslaughter, in financial terms the preponderance of the claim relates to loss of earnings since the manslaughter up to the date of trial and to future loss of earnings hereafter. The defendants admit negligence but deny liability at least for the post 19 August 2001 losses. Their basis for doing so is that the claimant is precluded on grounds of public policy, by application of the principle ex turpi causa non oritur actio,from recovering such losses.

The claim was struck out by Master Leslie on the defendants’ application but was subsequently reinstated by Mr Justice Holland on the grounds that the issues raised were better determined at trial. At the judge’s suggestion, the claimant’s counsel prepared a Re-Amended Schedule of Special Damages clarifying the nature of the various heads of claim being pursued. The claimant served a witness statement together with other statements from his family and friends testifying as to the effect of the Ladbroke Grove crash upon him, together with a number of psychiatric reports. Leave was given by Master Leslie to the parties to call one expert psychiatrist each. The claimant intended to call Dr Joseph. The defendants had the claimant examined by Dr Rosen but in the event did not serve a report from him.

The trial had been set down for five days. In the event, on the first day of the hearing, counsel agreed that I should determine the point of principle as to whether the claim was precluded on grounds of public policy as the defendants contend, on the basis that the facts set out in the Skeleton Argument on behalf of the claimant were essentially accepted by the defendants, without the need for any live evidence. This course was much to be commended, not least because it saved the claimant and his family and friends the ordeal of giving evidence.

Before addressing the arguments raised on the point of principle, I will set out the factual background to the dispute, derived in large measure from the Skeleton Argument on behalf of the claimant.

The claimant was born on 22 April 1960. He had a happy and normal childhood. He obtained 5 CSEs. He had a number of serious relationships, most recently before the rail crash with a lady called Caroline whom he met at work in 1997 and with whom he shared his interests in amongst other things, football, cooking and music. At the time of the crash they were living together in Tilbury. In general, prior to the crash he lived a healthy and uneventful life.

He had no criminal convictions and no history of violence. On the contrary, he sought to avoid confrontation whenever possible. In July 1981 when he was 21, he was attacked by a group of youths. He did not retaliate but was hospitalised with a broken jaw. In August 1999, some youths threw a stick of bread at his car. When he got out to remonstrate with them, he was punched, but again he did not retaliate.

The claimant was in continuous employment prior to the crash. From 1984 to 1998, he worked for MFI, reaching the position of Deputy Call Centre Manager. When that job was relocated to Sunderland, he took voluntary redundancy. After a temporary job, he became events manager for Touchdown Promotions. On the day of the crash, he had just started working on a project with BT Cellnet at Slough and was on his way to work by train from Paddington.

He was a passenger in one of the carriages of the Thames Turbo Train coming out of Paddington, which bore the brunt of the collision with the inward bound First Great Western express. His recollection is of standing by a plate glass partition near the door and the next moment of lying on the floor surrounded by broken glass and bodies. The experience was a horrific one which left the claimant with vivid confused pictures of the dead and dying. His physical injuries were relatively minor, consisting of lacerations to his left eyelid and left hand. He had difficulty in walking and was unable to drive for a while.

The psychological impact of the crash upon the claimant was much more severe. The consistent medical opinion is that the experience of the crash caused him to develop PTSD, which had a marked depressive component, for which he received anti-depressant medication. He underwent a significant personality change, becoming socially withdrawn and anxious, suffering angry outbursts and shunning physical contact. Inevitably this led to a deterioration in his relationship with his partner. From about mid-2000 he received psychiatric treatment.

In the meantime, he returned to employment in December 1999, initially on a production line for Manpower. He was then approached by Touchdown and worked for them from January to June 2000. In that period, he only worked in fact for some eight weeks. He found the work increasingly difficult, suffering from mood swings and often crying for no reason. He also found having to use public transport to get to and from work frightening.

He took up a position with the London Borough of Hackney in June 2000 and in fact remained in their employ until dismissed in April 2002. In the period up until the killing of Mr Boultwood in August 2001, he found coping with the job increasingly difficult. Throughout this period he had frequent nightmares and panic attacks. He suffered flashbacks particularly of a man in the rail crash who had been crying out for help but whom the claimant had been unable to help. He recalled the smell of the burning carriage and felt guilt that he had survived. The psychiatrists who saw him agreed these were all symptoms of PTSD described by Dr Joseph as an abnormality of mind. Two incidents occurred after he started work at the London Borough of Hackney, one when a CS gas canister was thrown through the window of a train on which he was travelling and the other when an object was thrown at the train on which he was travelling, shattering the glass, which sprayed over his legs, as it had in the crash. These incidents served to exacerbate the PTSD.

The claimant began to drink heavily. His work suffered and his attendance record became a concern. In May and June 2001 he was absent from work for periods because of his depression. He was away from work again at the beginning of August 2001 with an infection and although he should have returned to work on 13 August 2001, he did not do so but stayed away without authorisation.

On Sunday 19 August 2001 at about 9.30 in the evening, the claimant was driving along Calcutta Road Tilbury, when Mr Boultwood, who was unknown to the claimant, stumbled into the road in front of the claimant’s car causing him to stop. Mr Boultwood, who was highly intoxicated, punched the windows of the car. The claimant, who had been drinking earlier in the day, recalled being frightened by this, which reminded him of the rail crash and the broken glass. He got out of the car and a scuffle ensued between the two men. This was apparently broken up by a crowd of young people. The claimant recalled one of them, a girl, saying something threatening to him. He was angry and frightened.

The claimant drove to the house of his partner’s parents and was seen by her mother to take a knife from a kitchen drawer. Although she tried to stop him, he ran off through the back door, climbed over the fence and drove off in his car in the direction that Mr Boultwood had walked. Having found Mr Boultwood walking along Dock Road Tilbury, the claimant stopped his car and got out, taking the knife, which he tucked into the waistband of his trousers at the back. He approached Mr Boultwood and grabbed him by the throat. He produced the knife from behind his back and stabbed Mr Boultwood several times. He then threw the knife away across the road where it landed under a car. He got back in his car and drove off at speed.

Early the following morning, Mr Boultwood died in hospital. That afternoon, the claimant handed himself in to the police and was interviewed then and on 21 August 2001. He had no recollection of the stabbing other than a vague recollection of getting out of the car and putting the knife in his back pocket and a memory of throwing the knife away. On the evening of 21 August 2001, he was charged with murder. He was thereafter remanded in custody. At a hearing at Chelmsford Crown Court, he pleaded not guilty to murder. Psychiatric reports were ordered.

The claimant was examined by Dr Silver on behalf of the Crown and Dr Joseph on behalf of the defence. Their reports dated 18 April 2002 and 19 April 2002 respectively, both concluded that he was suffering from a serious psychological disorder (PTSD) at the time of the killing and therefore had diminished responsibility within the meaning of section 2 of the Homicide Act 1957. When the matter came before the Crown Court on 22 April 2002, the Crown accepted his plea of guilty of manslaughter through diminished responsibility. He was sentenced to be detained in a hospital pursuant to section 37 of the Mental Health Act 1983, with a restriction order under section 41 of the Act. After an initial period in prison, since July 2002 he has been detained at Runwell Hospital, Wickford, Essex.

As indicated above, to the extent that the claimant’s claim includes claims for loss and damage suffered since the manslaughter and for future loss of earnings, the defendants resist those claims. Although they admit negligence, they contend that they should not be liable for those claims on grounds of public policy, namely that the court will not assist recovery by a claimant whose claim is closely connected with or inextricably bound up with his own criminal or illegal conduct. The defendants contend that the claimant here falls foul of that principle. The claimant on the other hand urges on the court a more narrow approach to this question of public policy, contending that it is only engaged where the claimant has to rely on the illegality as the foundation of his case, which is said not to be so here. This issue of principle is the principal issue which I have to decide.

The principle of public policy encapsulated in the Latin maxim ex turpi causa non oritur actio was formulated by Lord Mansfield in Holman v Johnson (1775) 1 Cowp 341 at 343:

“The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis.

The question therefore is, “Whether, in this case, the plaintiff's demand is founded upon the ground of any immoral act or contract, or upon the ground of his being guilty of any thing which is prohibited by a positive law of this country.” (emphasis added)

Mr Scrivener QC on behalf of the claimant relies upon the underlined passages in support of his submission that a narrow approach should be adopted to the application of the doctrine, so that it is only in cases where the Claimant seeks to rely upon his own wrongful or illegal act, in the sense of it being a necessary part of his pleaded case, that the principle should come into play. He also relies in support of this narrow approach upon the decision of the House of Lords in Tinsley v Milligan [1994] AC 340. As he rightly points out, in that case the House of Lords disapproved the approach to the doctrine which had found favour in a number of decisions of the Court of Appeal (including in that actual case) that relief should only be denied a claimant where it would be “an affront to public conscience”, an approach which inevitably involved a balancing exercise.

In that case a majority of their lordships concluded that the doctrine did not apply because the claimant was able to establish her equitable proprietary right by way of resulting trust, without relying in her pleadings or evidence upon the relevant illegality, in the same way as the claimant in the well-known case of Bowmakers v Barnet Instruments [1945] KB65 was able to establish its legal title to the goods without relying upon the illegal contract pursuant to which it had hired the goods to the defendant. Lord Browne-Wilkinson stated the applicable test as follows at page 377B-C:

“In a case where the plaintiff is not seeking to enforce an unlawful contract but founds his case on collateral rights acquired under the contract (such as a right of property) the court is neither bound nor entitled to reject the claim unless the illegality of necessity forms part of the plaintiff’s case.”

As the editors of Clerk & Lindsell on Torts (19^th edition at paragraph 3-12) point out, this approach is less readily applicable in the context of tort cases. Whereas in cases which involve a claim under a contract or a claim to a proprietary right, there is a specific transaction tainted by illegality upon which the claimant may or may not have to rely depending upon which side of the line the case lies, in typical tort cases it is difficult to see what “transaction” or event the claimant has to rely upon to found his claim. As the editors say at paragraph 3-13:

“A strict application of Tinsley v Milligan across all forms of tort action would limit the applicability of the defence to those (probably comparatively rare) situations in which the claimant has to rely (however that term is interpreted) on the illegality as part of his claim.”

Nonetheless, Mr Scrivener submits that the Tinsley v Milligan approach applies even in cases of tort, so that it is only in cases where the claimant has to rely upon the relevant wrongful act as a necessary part of his claim, that the principle ex turpi causa is applicable. In the present case, the cause of action was complete when the defendants’ respective negligence caused the claimant actual damage, which was on the date of the Ladbroke Grove crash. Mr Scrivener points to the evidence of one of the psychiatrists who examined the claimant, Dr Joseph, who expresses the opinion in a report dated July 2006 that there is a distinct possibility that the claimant would have had to be admitted to a psychiatric hospital in any event and that his psychiatric condition was such that he is unlikely to have been capable of work, even if he had not committed the homicide.

On that basis, Mr Scrivener submits that the homicide is not a necessary ingredient of the claimant’s cause of action, let alone the foundation of his case. He also submits that the claimant’s pleaded case in the Particulars of Claim and the Re-Amended Schedule of Special Damages does not rely upon the manslaughter other than incidentally. Accordingly, he submits that the ex turpi causa principle as interpreted in Tinsley v Milligan does not come into play.

However, the difficulty with this part of Mr Scrivener’s argument, as I see it, is that it is contrary to the decision of the Court of Appeal in Cross v Kirkby (2000) 18^th February, unreported. In that case, the claimant was an anti-hunt supporter who trespassed on the defendant farmer’s land, over which the hunt was crossing. When the defendant sought to remove the claimant and his partner from his land, they armed themselves with a baseball bat and iron bar respectively and the claimant threatened the defendant and used violent language against him. The defendant tried to walk away but the claimant persisted. To ward off the blows with the bat, the defendant grappled with the claimant, wrested the bat from him and hit the claimant with a single blow with it to the head. The blow caused a fracture of the claimant’s skull and subdural bleeding and he subsequently suffered epileptic attacks. He brought a claim against the defendant for the tort of battery, which succeeded at first instance, the defence of self-defence being rejected by the judge.

On appeal, the claimant sought to uphold this decision for three related reasons: (i) the claimant did not need to plead or to prove illegality in order to establish his claim; (ii) the claimant did not need to rely on his own illegal conduct to establish the claim and (iii) the tort of battery was not so closely connected with his own illegal conduct that he should be precluded from recovery. Reliance was placed on the opinion of Lord Browne-Wilkinson in Tinsley v Milligan. The submissions put forward by Mr Scrivener in the present case very much reflected that argument.

Beldam LJ (with whose judgment Otton LJ agreed) rejected that argument in the following terms:

“I do not believe that there is any general principle that the claimant must either plead, give evidence of or rely on his own illegality for the principle to apply. Such a technical approach is entirely absent from Lord Mansfield’s exposition of the principle. I would however accept that for the principle to operate the claim made by the claimant must arise out of criminal or illegal conduct on his part. In this context “arise out of” clearly denotes a causal connection with the conduct a view which is implicit in such different cases as Lane v Holloway and the recent case to which we were referred in this court, Standard Chartered Bank v Pakistan National Shipping Corporation… In my view the principle applies when the claimant’s claim is so closely connected or inextricably bound up with his own criminal or illegal conduct that the court could not permit him to recover without appearing to condone that conduct.”

Although Mr Scrivener sought to derive support for his argument from the judgment of Judge LJ in that case, I do not consider that Judge LJ was intending to lay down any different test. Whilst it is true that he refers to the claimant’s unlawful or criminal behaviour “on the occasion when his cause of action in tort arises” (and as Mr Scrivener points out the claimant’s cause of action here arose when the rail crash occurred) it seems to me that he was focusing on the facts of that case and was not intending to limit the application of the principle of ex turpi causa in negligence cases to unlawful conduct at the time when the cause of action arises. However, even if he was, that would be contrary to the test as articulated by Beldam LJ (and approved by Otton LJ) which is not limited in time.

Furthermore, it does not seem to me that Sir Murray Stuart-Smith was seeking to lay down a different test in Vellino v Chief constable of Greater Manchester [2001] EWCA Civ 1249 when (having cited inter aliaTinsley v Milligan and Cross v Kirkby) he stated (at paragraph 72):

“From these authorities I derive the following propositions:

1.

The operation of the principle arises where the claimant's claim is founded upon his own criminal or immoral act. The facts which give rise to the claim must be inextricably linked with the criminal activity. It is not sufficient if the criminal activity merely gives occasion for tortious conduct of the Defendant.”

Unlike Mr Scrivener, I do not read the reference to a claim being “founded” upon a criminal act as being limited to whether or not the criminal act is a necessary ingredient of the cause of action. Indeed the second sentence of the sub-paragraph appears to be a reflection of the wider test adopted by the majority of the Court of Appeal in Cross v Kirkby.

Seeking to apply that wider test to the facts of this case, the question is whether Mr Gray’s claim is so closely connected or inextricably bound up with his own criminal conduct that the court cannot permit him to recover without appearing to condone that conduct. Clearly, a distinction has to be drawn between that part of the claim which ante-dates the act of manslaughter and that which post-dates it. It is not disputed by the defendants that they were negligent, nor that their negligence led to the rail crash which caused the claimant to suffer PTSD. To the extent that his claim relates to loss of earnings and other losses up to the killing of Mr Boultwood on 19 August 2001, it is recoverable and Mr Turner QC for the defendants does not dispute that.

However, as from the date of the killing, the position is different. Try as Mr Scrivener may on behalf of the claimant to argue that his claim after 19 August 2001, for loss of earnings up to the date of the trial or future earnings hereafter, is somehow independent of the manslaughter, that argument is unreal and I reject it. Although the Re-Amended Schedule of Special Damages has been carefully pleaded to attribute the claimant’s detention in Runwell Hospital to his mental illness generally rather than specifically to the manslaughter (see for example paragraph 5.15), on analysis the claim after 19 August 2001 is dependent upon the manslaughter.

As Mr Turner pointed out, if on that date, the claimant had committed a criminal offence for which he was imprisoned or detained in hospital but which was not attributable to the PTSD from which he suffers and hence not caused by the defendants’ negligence, the defendants would have a complete defence in relation to any loss of earnings after the date of such incarceration. This would not be because of the application of the principle ex turpi causa but because the commission of the offence and the incarceration for it would constitute a complete break in the chain of causation. I agree with Mr Turner that in order to avoid that consequence in the present case, the claimant has to rely upon the manslaughter and to contend that it was caused by the PTSD which in turn was caused by the negligence of the defendants.

This reliance is clear from paragraph 5.11 of the Re-Amended Schedule of Special Damages which states as follows:

“In the premises:

at all material times, and in particular on 18 August 2001, the Claimant was suffering from a mental illness that was caused and/or materially contributed to by the accident, namely severe post-traumatic stress disorder and/or associated depressive symptoms, and

the symptoms of the said mental illness were exacerbated by two further traumatic incidents experienced while travelling on trains in 2000.

By the latest 13 August 2001, when the Claimant failed to return to work after sick leave, he was unable to travel to work and/or was incapable of work.

The Claimant killed Mr Boultwood on 18 August 2001. It is the Claimant’s case that:

At the time of the killing, the Claimant was suffering from a mental illness that had been caused by the said accident.

On the evening of 18 August 2001, the said mental illness inter alia:

predisposed the Claimant to act with violence when his car was attacked by Mr Boultwood;

impaired substantially the Claimant’s capacity to make a rational judgement when responding to the intense feelings of anger triggered by Mr Boultwood’s attack;

led him to experience a highly abnormal emotional reaction to the situation in which he found himself, which affected his ability to decide how to react;

narrowed his judgment to such a degree that stabbing Mr Boultwood appeared to be the only option available to him at the time, regardless of the consequences of his actions;

In the premises, it is the Claimant’s case that he would not have killed Mr Boultwood but for the mental illness caused by the said accident.”

Mr Scrivener’s contention was that paragraph 5.11 was only included as part of the claimant’s post-accident history and not intended to be relied upon as founding any claim for damages. However, I find this attempt to explain away the paragraph unconvincing. It appears as part of the Particulars of Special Damage under Paragraph 5 of the Particulars of Claim. The Section of the Re-Amended Schedule in which it appears is “Past Losses: Loss of Earnings” in respect of Period 4. I consider that paragraph 5.11 is an integral part of the claimant’s pleaded case as to the loss and damage he has suffered and why. Furthermore, as I have already held, the claimant has to rely on the manslaughter and contend that it was caused by the PTSD in turn caused by the negligence of the defendants, in an attempt to avoid the killing breaking the chain of causation.

Accordingly, so far as concerns the claimant’s claim for losses suffered after 19 August 2001, that claim is closely connected with or inextricably bound up with the act of manslaughter. It is important to bear in mind that, tragic though the claimant’s predicament is, this is a case where the claimant committed a criminal act for which he was responsible as a matter of law. Mr Scrivener placed considerable emphasis upon Dr Joseph’s conclusion as to the claimant’s state of mind in his report in July 2006:

“His abnormality of mind led to an inability to use his wider judgement and consider all options available to him, for example walk away or call the police. His judgement was narrowed to the point where stabbing the deceased was the only option available to him regardless of the circumstances”.

However, this not a case where the claimant was found not guilty through insanity. Rather it was a case where the Crown accepted his plea of diminished responsibility, reducing to manslaughter what would otherwise be murder. In this context, the defendants relied upon two decisions of the Court of Appeal which they contended were binding on this court.

In Clunis v Camden & Islington Health Authority [1998] QB 978, the claimant had a history of mental disorder and was discharged from hospital after being detained under the Mental Health Act. He was in the after-care of the defendant health authority but failed to attend appointments with the responsible medical officer. In a sudden and unprovoked attack, he stabbed a stranger to death at a tube station. He pleaded guilty to manslaughter on the grounds of diminished responsibility and was ordered to be detained in a secure hospital. He brought a claim against the defendant health authority for breach of a duty of care in that the responsible medical officer should have realised he was dangerous and given him treatment, in which case he would not have committed manslaughter.

In concluding that public policy precluded the court entertaining the claim, Beldam LJ delivering the judgment of the court stated (at 989E-F immediately after citing Tinsley v Milligan in the context of the rejection by the House of Lords of the “affront to public conscience” test):

“In the present case the plaintiff has been convicted of a serious criminal offence. In such a case public policy would in our judgment preclude the court from entertaining the plaintiff’s claim unless it could be said that he did not know the nature and quality of his act or that what he was doing was wrong. The offence of murder was reduced to one of manslaughter by reason of the plaintiff’s mental disorder but his mental state did not justify a verdict of not guilty by reason of insanity. Consequently, though his responsibility for killing Mr Zito is diminished, he must be taken to have known what he was doing and that it was wrong. A plea of diminished responsibility accepts that the accused’s mental responsibility is substantially impaired but it does not remove liability for his criminal act. We do not consider that in such a case a court can or should go behind the conviction and, even if it could, we do not see in the medical report attached to the statement of claim any statement which would justify the court taking the view that this plaintiff had no responsibility for the serious crime to which he pleaded guilty.

The plaintiff in this case, though his responsibility is in law reduced, must in Best C.J.’s words be presumed to have known that he was doing an unlawful act.”

It seems to me that the description of the claimant’s responsibility for his crime in that passage would be equally apt to describe the responsibility of the claimant in the present case. Mr Scrivener sought to distinguish Clunis on the grounds that it was a case where the defendant’s breach of duty post-dated the claimant’s mental disposition to violence and could not be said to have caused that disposition. In contrast, as he points out, before the Ladbroke Grove rail crash, the claimant was a law abiding citizen with no disposition to violence. It was the defendants’ negligence which had caused the personality change in the claimant which in turn led him to kill Mr Boultwood. This distinction is obviously factually correct, but I rather doubt whether it makes any difference to the application of the principle of public policy, as the subsequent case of Worrall v British Railways Board [1999] EWCA Civ 1312 demonstrates.

In Worrall, the claimant had been employed by the defendant as an assistant technician when in 1984 he allegedly suffered an electric shock from an overhead stanchion. He claimed to have suffered psychological and neurological injuries which had changed his personality. He also worked as a part-time taxi driver. On two occasions in November 1986, he picked up a prostitute in his cab and on each occasion committed an act of rape. At his subsequent trial, he pleaded not guilty and ran a defence of alibi. This was disbelieved and he was convicted and sentenced to six years imprisonment. The defendant terminated his employment as a consequence. He then brought a claim for damages for personal injury, alleging that the defendant’s admitted negligence had caused the psychological and neurological injuries which changed his personality and caused him to commit the offences, but for which he would have continued to be employed by the defendant. Accordingly he claimed damages for loss of earnings.

The defendant succeeded in having the claim struck out at first instance, relying on Clunis. In the Court of Appeal, the claimant sought to distinguish Clunis on grounds essentially the same as those advanced by Mr Scrivener in the present case, namely that, unlike in Clunis, Mr Worrall had suffered damage as a consequence of the defendant’s negligence before he committed the criminal offences and thus had a complete cause of action which did not depend upon proof that he had committed the offences in question. It was contended that he was only seeking to rely upon the criminal offences for the purpose of showing that the defendant’s negligence had caused him psychological injury resulting in the loss and damage he claimed.

The Court of Appeal rejected these submissions. Beldam LJ said:

“In my view that part of the statement of claim upon which the plaintiff relied to establish the vast majority of his loss was founded upon his commission of serious criminal offences for which he was fully responsible in law. The principle that the court will not lend its aid to the recovery of damages based upon criminal offences applies and the case is indistinguishable save in immaterial respects from Clunis. The plaintiff’s responsibility in this case was undiminished in any respect and I consider it would be contrary to public policy to allow him to recover damages consequent upon the commission of those offences.”

Mummery LJ considered that there were a number of ways in which the striking out of the claim could be justified. First, he referred to the same principle of public policy as Beldam LJ had (ex turpi causa) and concluded:

“The plaintiff pleads and relies on the crimes for which he was convicted as part of the chain of events leading from the injuries suffered by him at work on 26 November 1984 to the loss of his job with the defendant in July 1987 and to the consequential financial losses for which he seeks compensation. As a matter of public policy the court will not assist a plaintiff who pleads and relies on his own criminal acts to establish his claim. “

He went on to say that having been convicted of the offences, the claimant had to be treated as fully and personally responsible in law for his deliberate criminal acts and their consequences:

“It would be inconsistent with his criminal conviction to attribute to the negligent defendant in this action any legal responsibility for the financial consequences of crimes which he has been found guilty of having deliberately committed.”

Finally, Mummery LJ considered that the particular head of claim for loss of past earnings from the date of his dismissal and loss of future earnings failed on grounds of causation:

“the particular head of damage which the plaintiff has pleaded in the struck out parts of the pleading relates to loss suffered by him as a direct result of crimes committed by him against others, not as a direct or foreseeable result of a breach of a duty of care owed to him by the defendant.”

Mr Scrivener sought to distinguish Worrall on a number of bases. He said that unlike the present case it was a case of an application to strike out, not a trial and that it was clear that the Court of Appeal considered that the claim was a weak and tenuous one. All that is true, but in considering whether or not the claim should be struck out, the Court of Appeal, in accordance with well-established principles, assumed for the purposes of the application that the claimant would be able to make out his case on causation at any trial. It does not seem to me that this supposed distinction avails the claimant in the present case.

Then it is contended by Mr Scrivener that in Worrall the claimant was pleading and relying upon his commission of the offences as an essential aspect of his cause of action, whereas in the present case, the claimant’s pleaded case did not rely upon the criminal act. It seems to me that there are two answers to this contention. First, it is simply not correct that the claimant’s pleadings do not rely upon the unlawful act of manslaughter. I have already quoted above paragraph 5.11 of the Re-Amended Schedule of Special Damages. These are of course particulars of the plea of personal injury and consequential loss in Paragraph 5 of the Particulars of Claim, where the manslaughter and the claimant’s consequent detention are relied upon under the heading “Other Adverse Effects and Loss of Amenity”. As I have already held, the claimant needs to refer to and rely upon the manslaughter being attributable to his PTSD which was caused by the defendants’ negligence to avoid his conviction and detention breaking the chain of causation.

Second and in any event, as the Court of Appeal held in Cross v Kirkby, the application of a principle of public policy such as ex turpi causa ought not to depend upon a pleading point. I agree with Mr Turner’s submission that to allow the application of the doctrine to turn on the pleadings would be to adopt a mechanistic approach in circumstances where what the court should be adopting is a fair and just approach, mindful that what is in issue here is a principle of public policy, not designed to benefit defendants but to reflect the limits within which the court will assist a claimant who has committed a criminal or unlawful act. The principle is one which the court may invoke of its own motion, even if a defendant does not raise it.

Accordingly, I do consider that the decisions of the Court of Appeal in Clunis and Worrall are not distinguishable in any material respect and are binding upon me. Even if they were not, it seems to me that the principle which they recognise is one which should be applied in this case. The claimant’s claim, in so far as it relates to losses suffered after 19 August 2001, relies and is founded upon the commission of a serious criminal offence, manslaughter, for which, although the claimant’s responsibility was diminished, the law still regards him as responsible and in relation to which he had the requisite intent and must be taken to have known what he was doing. As in Clunis and Worrall,the principle that the court will not lend its aid to the recovery of damages based upon criminal offences applies.

I would add that I would have reached the same conclusion by the alternative routes of legal responsibility of the claimant for his crime and causation enunciated by Mummery LJ in Worrall. Both these approaches to cases of this kind have found favour in the New South Wales Court of Appeal, in decisions which although not binding on the English courts, contain instructive and persuasive reasoning. In State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500 at 514-5, Samuels JA reflects both of these alternative routes, which may on analysis be two aspects of the same principle:

“If the plaintiff has been convicted and sentenced for a crime, it means that the criminal law has taken him to be responsible for his actions, and has imposed an appropriate penalty. He or she should therefore bear the consequences of the punishment, both direct and indirect. 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. Hence, the application of the simple ‘but for’ test to determine causation would be singularly inappropriate in this case. In all the circumstances, it would be quite unreal to find that the appellant caused the respondent to engage in criminal conduct…

If one cannot get ‘direct’ compensation for the non-economic or economic loss resulting from imprisonment, one should not be able to receive ‘indirect’ compensation for lost earning capacity after imprisonment by treating the fact of imprisonment as irrelevant to the assessment of economic loss.”

This passage was cited with approval by Sheller JA at paragraph 226 of the later decision of Hunter Area Health Service v Presland [2005] NSWCA 33. In that case a majority of the Court of Appeal rejected the claimant’s claim for damages consequent upon his killing of his brother’s girlfriend although he was found not guilty by reason of insanity, on the grounds that the defendant had no legal responsibility for the relevant harm suffered by the claimant (per Sheller JA) or that the claimant’s conduct although not criminal was still wholly unreasonable so that the chain of causation was broken (per Santow JA). These conclusions seem to me to reflect the alternative routes to dismissing a claim such as the present to which Mummery LJ referred in Worrall.

Mr Scrivener did advance an alternative case in his Skeleton Argument based on the concept of “affront to public conscience” submitting that it would not be such an affront for the claimant to recover damages in circumstances where it was the defendants’ negligence which had caused the change in his personality which led to this crime of violence. He submitted that this point was left open by Auld LJ in KR & Others v Bryn Alyn Community (Holdings) Limited [2004] 2 All ER 716 at paragraph 131 where he said:

“Notwithstanding anything said by this Court in Clunis an argument may survive that damages are recoverable in respect of tortious acts that have resulted in a law-abiding citizen becoming a criminal.”

This one sentence is a somewhat tenuous and speculative basis upon which to advance the alternative case which, as Mr Turner points out, is in any event based upon the “affront to public conscience” test which is discredited since the decision of the House of Lords in Tinsley v Milligan. Mr Scrivener fairly and realistically recognised that the alternative case was not one which he could pursue, at least before a court of first instance. I need say no more about it.

Finally I should deal with what might be described (with no disrespect to Mr Scrivener) as an attempt to by-pass the application of the principle ex turpi causa to the present case, by means of the argument that the claimant would have suffered the same loss and damage post 19 August 2001 as he has, irrespective of the manslaughter. It seems to me that there are a number of problems with this argument.

First, it has a somewhat shaky factual basis. The claimant can of course legitimately rely upon the opinion of Dr Joseph in his July 2006 report that there is a distinct possibility that the claimant would have been admitted to a psychiatric hospital and that it is unlikely that he would have been capable of work irrespective of the commission of the offence. However, I consider that the court is entitled to approach that opinion with a degree of scepticism, even though by agreement between the parties Dr Joseph was not required to give oral evidence or be cross-examined.

The psychological examination of the claimant which took place immediately prior to the manslaughter was that of Mr Walter Friedman on 25 July 2001 detailed in his report of 3 August 2001. This may provide a better insight into his psychological state at that date and into the prospects of recovery had the manslaughter not been committed. Although Mr Friedman’s prognosis in the case of the claimant was guarded, he stated that he believed that a course of treatment could certainly ameliorate many of the claimant’s symptoms. Mr Friedman was proposing to use EMDR (eye movement desensitivity and reprocessing), a procedure which he described as well documented to be effective in relieving symptoms of PTSD. It is unclear on the material before the court whether the EMDR procedure had started to be adopted before 19 August 2001 when the claimant killed Mr Boultwood. There is some suggestion it had in the report of Dr de Zulueta in February 2004, but it is by no means conclusive.

On the basis of Mr Friedman’s report it seems to me that it could not be said that, on a balance of probabilities, the claimant would have been admitted to or detained in a psychiatric hospital, even if he had not committed the manslaughter, let alone that he would not have been able to engage in gainful employment at any time from August 2001 through the summer of 2008 (when he may be released from Runwell Hospital) to some indeterminate date in the future. The court is also entitled to look at the realities of the situation. I agree with Mr Turner that the most likely reason why the claimant will be prevented from earning in the future is the very considerable stigma he will suffer for the commission of the offence of manslaughter. No such stigma would exist if he had not killed Mr Boultwood.

Furthermore, the argument that he would have suffered some or even all of the loss which he claims, even if he had not committed the manslaughter, involves inviting the court to speculate about a hypothetical situation. It is a well-established principle in many different fields of the law of damages that the Court will look at the position as at the date of judgment and where, as at that date, there has been some change of circumstances since the relevant cause of action accrued, the court will look at the actual position as it is known and not speculate about what the hypothetical position would have been had the change of circumstances not occurred.

In the field of personal injury the principle is exemplified by the decision of the House of Lords in Jobling v Associated Dairies Ltd [1982] AC 794. For a recent example of the application of the same principle in assessing damages for repudiatory breach of contract, see the decision of the majority of the House of Lords in Golden Strait Corporation v NYKK [2007] UKHL 12, [2007] 2 WLR 691. I accept Mr Turner’s submission that where, since the date of the Ladbroke Grove rail crash, the claimant has committed the act of manslaughter, that principle precludes the claimant from inviting the court to speculate as to what the position would have been had the manslaughter not been committed and somehow to overlook its commission.

It must follow that, in so far as the claimant’s claim relates to losses suffered after the commission of the act of manslaughter on 19 August 2001, that claim will not be entertained by the court and must be dismissed. As I have already indicated, in principle losses suffered by the claimant before 19 August 2001 should be recoverable.