Gray v Thames Trains Ltd. & Anor

The ex turpi causa principle may bar recovery where a claimant’s losses are so closely connected with, or inextricably bound up with, the claimant’s criminal conduct that allowing recovery would appear to condone it. The doctrine is not confined to cases where the claimant must plead the illegality as a technical ingredient of the cause of action. In tort claims, the court must examine the real connection between the criminal act, the claimed loss and the claimant’s pleaded case. A conviction for manslaughter on grounds of diminished responsibility does not remove legal responsibility for the criminal act. Losses attributable to the resulting detention, loss of earnings or consequences of the offence may therefore be irrecoverable. Losses accruing before the offence remain separately recoverable in principle.

The claimant, a passenger injured in the Ladbroke Grove rail crash, alleged that the defendants’ admitted negligence caused post-traumatic stress disorder. He later killed a stranger and pleaded guilty to manslaughter on grounds of diminished responsibility. He was detained in hospital under sections 37 and 41 of the Mental Health Act 1983.

The claim included pre-offence losses and substantial losses of earnings after the killing. The defendants relied on ex turpi causa non oritur actio, while the claimant argued that the doctrine applied only where he had to rely on the illegal act as a necessary part of his cause of action. The central issue was whether the post-killing losses were sufficiently connected with the manslaughter to make the claim contrary to public policy.

1. Disposition. The claim for losses suffered after 19 August 2001 was dismissed. Losses suffered before that date were recoverable in principle.
2. The applicable test was that stated by Beldam LJ in Cross v Kirkby: the doctrine is engaged where the claim arises out of criminal or illegal conduct and is so closely connected with, or inextricably bound up with, that conduct that the court could not permit recovery without appearing to condone it. The test is not limited to conduct occurring when the original cause of action arose.
3. The approach in Tinsley v Milligan did not require a different result. Its technical reliance-based analysis was less readily transferable to tort claims. Whether the criminal act appears in the pleadings is not decisive; the court may invoke the public-policy principle of its own motion.
4. The claimant’s post-killing losses depended on the manslaughter. To avoid the offence and resulting detention breaking the chain of causation, he had to contend that the killing was caused by PTSD caused by the defendants’ negligence. His pleaded schedule expressly made that contention an integral part of the claim.
5. Clunis v Camden & Islington Health Authority and Worrall v British Railways Board were binding and were not materially distinguishable. Diminished responsibility reduced the claimant’s criminal responsibility but did not remove it. The alternative reasoning in Worrall, based on legal responsibility and causation, also supported dismissal.
6. The claimant could not avoid the doctrine by inviting the court to speculate that he would have suffered the same losses without the manslaughter. Damages had to be assessed on the actual position at judgment, having regard to the intervening offence and its consequences.