Gray (Original Respondent and Cross appellants) v Thames Trains and others (Original Appellant and Cross respondents)

A claimant cannot recover damages for imprisonment, restricted hospital detention or consequential loss of earnings resulting from a sentence lawfully imposed for a crime for which the claimant was personally responsible. Civil compensation would contradict the criminal law’s attribution of responsibility and its chosen disposal.

The bar also extends to other loss caused directly by the claimant’s deliberate crime, including liability to the victim’s dependants and feelings of guilt and remorse. It does not arise merely because criminal activity supplied the occasion for an independently caused injury. A pre-existing loss-of-earnings claim must be assessed in light of the claimant’s actual subsequent detention; the court cannot calculate damages by ignoring that supervening event.

The defendants admitted that their negligence caused the Ladbroke Grove rail crash and that Gray developed post-traumatic stress disorder. While suffering from that disorder, he deliberately killed a pedestrian and pleaded guilty to manslaughter on the ground of diminished responsibility. He was detained under sections 37 and 41 of the Mental Health Act 1983.

Gray sought damages for post-arrest loss of earnings, detention, conviction, reputational harm, guilt and remorse, and any liability to the victim’s dependants. Flaux J held that public policy barred those claims. The Court of Appeal, [2008] EWCA Civ 713, reported at [2009] 2 WLR 351, held that the general damages were barred but permitted the loss-of-earnings claim to proceed and remitted causation.

The defendants appealed and Gray cross-appealed. The central issue was whether civil damages could compensate consequences caused by Gray’s deliberate crime and the resulting criminal-court orders.

1. Disposition. The House unanimously allowed the defendants’ appeal, rejected the cross-appeal and restored Flaux J’s order. Lord Hoffmann and Lord Rodger delivered the principal reasons. Lord Phillips and Lord Scott agreed with both, subject to Lord Phillips’s reservation concerning some hospital orders. Lord Brown agreed with the result and substantially the same reasoning.

2. The narrower public-policy rule. Per Lord Hoffmann, a claimant cannot recover damage flowing from loss of liberty, a fine or another punishment lawfully imposed for the claimant’s crime. The criminal law attributes personal responsibility and imposes the disposal it considers appropriate. It would be inconsistent for the civil law to require another person to compensate the offender for that disposal. Lord Rodger and Lord Brown adopted the same consistency principle. The reasoning in Clunis v Camden and Islington Health Authority [1998] QB 978 was approved.

3. The rule was not displaced because the defendants’ negligence caused the post-traumatic stress disorder without which the killing would not have occurred. Gray’s responsibility was diminished but not extinguished. His arrest, detention and inability to earn were consequences of his manslaughter and the ensuing orders under sections 37 and 41 of the Mental Health Act 1983.

4. Loss of earnings. Per Lord Hoffmann, the court could not assess damages on the counterfactual basis that Gray would have remained partially unable to work while disregarding his actual total inability to work during lawful detention. Jobling v Associated Dairies Ltd [1982] AC 794 required the supervening event to be taken into account. Lord Rodger held that compensation during the orders would also contradict the policy underlying the criminal disposal. Lord Brown agreed that both the direct and continuing partial-loss claims failed.

5. The wider rule. Per Lord Hoffmann, damages caused directly by a claimant’s deliberate crime are irrecoverable even when they are not consequences of the sentence. The question is whether the crime caused the damage or merely supplied the occasion for independently tortious conduct. Gray’s potential liability to the victim’s dependants and his guilt and remorse were immediate consequences of the intentional killing and were barred. Lord Rodger reached the same conclusion.

6. Hospital-order reservation. Lord Phillips and Lord Rodger reserved the position where a trivial index offence merely reveals a negligently caused mental disorder and plays no material part in a section 37 hospital order, or where the offender bears no significant personal responsibility. That issue did not arise. The findings established that Gray would not have been detained without the manslaughter, and the serious offence materially supported the section 41 restriction order.

1. House of Lords: Unanimously allowed the defendants’ appeal, dismissed Gray’s cross-appeal and restored the order of Flaux J: [2009] UKHL 33.
2. Court of Appeal: In [2008] EWCA Civ 713, reported at [2009] 2 WLR 351, held that public policy barred the general-damages claims but not the post-killing loss-of-earnings claim. It remitted causation to the trial judge.
3. High Court: Flaux J held that public policy barred both the post-killing loss-of-earnings claim and the claims for the other consequences of the killing.