Henderson v Dorset Healthcare University NHS Foundation Trust

The Supreme Court heard an appeal by Ms Henderson against the decision of the Court of Appeal dismissing her claim for damages against the Dorset Healthcare University NHS Foundation Trust. The appellant was diagnosed with paranoid schizophrenia or schizoaffective disorder. In August 2010, she experienced a serious psychotic episode and stabbed her mother to death. She was subsequently convicted of manslaughter by reason of diminished responsibility and detained in hospital under the Mental Health Act 1983. The Trust admitted liability in negligence in failing to return the appellant to hospital on the basis of her manifest psychotic state. The tragic killing of her mother would not have occurred had this been done. The appellant advanced various heads of damages against the Trust as a result of its admitted negligence. The Trust denied liability for these heads of damages on the grounds that the damages claimed by the appellant were the consequence of either the sentence imposed on her by the criminal court or her criminal act of manslaughter, and were therefore irrecoverable by reason of the doctrine of ex turpi causa non oritur actio/illegality. The principal issues to be determined on the appeal were: (1) whether the decision in Gray v Thames Trains Ltd could be distinguished; (2) if not, whether Gray should be departed from and Clunis v Camden and Islington Health Authority overruled; and (3) if not, whether all heads of loss claimed were irrecoverable. The Supreme Court held, dismissing the appeal, that Gray could not be distinguished and should not be departed from and Clunis overruled. The reasoning in Gray was consistent with the flexible policy-based approach endorsed in Patel v Mirza and provided no reason why it should be departed from. The crucial consideration for the majority in Gray was that the claimant had been found to be criminally responsible, not the degree of personal responsibility which that reflected. The appellant's conviction for manslaughter by reason of diminished responsibility meant that responsibility for her criminal acts was diminished, but it was not removed. The appellant's argument that there was no inconsistency or incoherence between the civil and the criminal law in a case in which the claimant had no significant personal responsibility for a criminal act was rejected. The application of the trio of considerations approach set out in Patel did not lead to a different outcome. The appellant's concession that all heads of loss were irrecoverable pursuant to the ratio in Gray was upheld.