Gray v Thames Trains Ltd & Anor (Rev 1)

In tort, the ex turpi causa defence is not confined to claims founded on the claimant’s illegal act. The question is whether the relevant loss is so closely connected with, or inextricably bound up with, the criminal conduct that allowing recovery would appear to condone it. A loss of earnings claim caused by tortious psychiatric injury is not necessarily barred because the claimant later committed a crime. Causation must be considered separately. The defendants bear the evidential burden of showing that the crime broke the chain of causation. Where the claimant’s conduct is also contributory fault, partial recovery may be possible under section 1(1) of the Law Reform (Contributory Negligence) Act 1945. Damages for detention imposed following the crime remain inextricably linked to it.

The claimant, a victim of the Ladbroke Grove rail crash, developed post-traumatic stress disorder and later committed manslaughter. The defendants admitted negligence, breach of duty and causation of the psychiatric injury, but disputed liability for loss of earnings after the killing on public-policy grounds.

Flaux J held that the post-killing loss was closely connected with, and inextricably bound up with, the manslaughter, applying the ex turpi causa principle. The claimant appealed from the decision reported at [2007] EWHC 1558 (QB). The central issue was whether the loss of earnings claim was barred by illegality, or whether the issues of causation and contributory fault required trial determination.

The appeal was allowed on the ex turpi causa point. The claim for post-manslaughter loss of earnings was not barred at the strike-out stage.

1. The contractual and collateral-rights test stated in Tinsley v Milligan [1994] AC 340 was too narrow for a tort claim which was not founded on the claimant’s illegality. The applicable question was whether the relevant loss was so closely connected with, or inextricably bound up with, the criminal conduct that recovery would appear to condone it. This formulation, derived principally from Cross v Kirkby, was consistent with Vellino v Chief Constable of Greater Manchester [2001] EWCA Civ 1249.
2. The claimant’s case was that the defendants’ negligence caused PTSD, which caused loss of earning capacity. The manslaughter was not a necessary part of that claim. The claim was therefore not inextricably linked to the crime merely because the crime occurred before some of the losses were suffered.
3. The claimant retained the legal burden of proving causation for each head of loss. The defendants bore the evidential burden of showing that the manslaughter or detention broke the chain of causation. If there was a break, the claim would fail on causation rather than illegality. The court considered, without finally deciding, that the PTSD may have remained the proximate or effective cause.
4. The court also considered that the manslaughter might constitute contributory fault under section 1(1) of the Law Reform (Contributory Negligence) Act 1945. If the loss was partly caused by the tort and partly by the claimant’s deliberate act, apportionment and partial recovery would not condone the crime. The issue was not finally determined.
5. Damages for compulsory detention following the criminal order remained barred because they were inextricably linked with the manslaughter. The broader argument that public policy should not bar recovery where the tort itself caused the criminal conduct was recognised, and supported obiter in KR v Bryn Alyn Community [2003] EWCA Civ 85, but could not be adopted because the court was bound by Cross v Kirkby.

Foreseeability, causation and contributory fault were left for further consideration, with remission to the High Court if necessary.

• Court of Appeal (Civil Division) allowed the appeal on the ex turpi causa issue and left future conduct and related causation issues for further submissions.
• High Court of Justice, Queen’s Bench Division (Flaux J) held that the claimant’s post-manslaughter loss of earnings claim was barred by public policy: [2007] EWHC 1558 (QB).