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Gray v Thames Trains & Ors

Gray v Thames Trains & Ors

Case [2009] UKHL 33

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I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Hoffmann and Lord Rodger of Earlsferry and I agree, for the reasons given by each, that this appeal should be allowed. I wish, however, to add some comments on one aspect of this appeal which has caused me some concern.

The appellants' negligence was responsible for the Ladbroke Grove rail crash on 5 October 1999. Mr Gray sustained minor physical injuries in the crash, but more significant psychiatric injury in the form of post traumatic stress disorder (PTSD). Under the effects of this condition Mr Gray obtained a knife and repeatedly stabbed a drunken pedestrian, Mr Boultwood, with whom he had had an altercation after he had stepped in front of his car. The pedestrian died of his wounds. Mr Gray gave himself up to the police.

Mr Gray was charged with murder but the prosecution accepted a plea to manslaughter on the ground of diminished responsibility. On 3 March 2003 Rafferty J ordered him to be detained in hospital pursuant to section 37 of the Mental Health Act 1983, subject to an indefinite restriction order under section 41 of that Act. Mr Gray was detained in prison while a hospital placement was found and then moved to Runwell Hospital, where he remains detained.

The appellants have always accepted liability to Mr Gray for his physical and mental injuries and the legal consequences of the latter. The issue has related to the extent of those consequences. The appellants' case has been that those consequences effectively came to an end when Mr Gray killed Mr Boultwood. Thereafter he has experienced the consequences of his own criminal act, in respect of which he can bring no claim on grounds, inter alia, of public policy. The preliminary issue that has given rise to this appeal relates to the effect of the defence of public policy, commonly formulated in Latin as ex turpi causa non oritur actio.

Mr Gray advanced his claim on two bases. The first accepted that public policy would preclude recovery in respect of the consequences of the killing of Mr Boultwood - Clunis v Camden and Islington Health Authority [1998] QB 978; Worrall v British Railways Board (unreported), 29 April 1999; Court of Appeal Transcript No 684. Mr Gray argued that he could nonetheless recover loss of earnings in respect of the period during which he was detained pursuant to Rafferty J's order. This was on the basis that the appellants had destroyed his earning capacity before the killing so that their negligence, rather than his act of manslaughter, was responsible for his loss of earnings. The Court of Appeal [2009] 2 WLR 351 accepted this argument but, for the reasons given by Lord Hoffmann and Lord Rodger, I consider that they should not have done so.

The alternative way in which Mr Gray put his case was rejected by the Court of Appeal but was advanced before your Lordships by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] UKHL 33
Decision Date