Henderson v Dorset Healthcare University NHS Foundation Trust

The common-law defence of illegality may bar negligence damages claimed by a person whose unlawful killing followed the defendant’s breach of duty. The narrower rule bars recovery for loss caused by a criminal sentence. The wider rule bars recovery for loss caused by the claimant’s criminal act where the defendant’s tort merely provided the occasion for it. Patel v Mirza did not displace Clunis or Gray. Diminished responsibility did not prevent the defence applying.

The appellant, who had serious mental illness, killed her mother during a psychotic episode and pleaded guilty to manslaughter by reason of diminished responsibility. The respondent NHS Trust admitted that its breaches of duty had caused the killing.

She claimed damages for personal injury, detention under sections 37 and 41 of the Mental Health Act 1983, loss of amenity, loss arising from the Forfeiture Act 1982, psychotherapy and care support. Jay J determined a preliminary issue and dismissed the claims as barred by illegality: [2016] EWHC 3275 (QB). The appeal concerned the ratios of Clunis and Gray, and whether they survived Patel v Mirza.

1. Appeal dismissed. All six heads of loss were barred by the common-law doctrine of illegality and public policy.
2. Clunis was binding authority at least for the narrower proposition that damages cannot be recovered for loss of liberty caused by detention imposed following the claimant’s serious criminal offence. Its wider reasoning also supported the rule that a claimant cannot recover for damage consequential upon the claimant’s criminal act where the claim depends upon that act.
3. The majority in Gray—Lords Hoffmann, Rodger and Scott—approved Clunis. They recognised a narrower rule, based on consistency between criminal and civil law, under which compensation cannot be recovered for loss caused by a lawful sentence, and a wider rule combining public policy and causation. The wider rule applies where the defendant’s tort merely provided the occasion or opportunity for the claimant’s criminal act and the immediate cause of the damage was that act.
4. Lord Phillips’s reservations concerning hospital orders and cases involving little or no personal responsibility were obiter, expressly reserved, and did not command majority support insofar as they concerned serious crimes such as manslaughter.
5. Patel v Mirza adopted a flexible approach requiring consideration of the purpose of the prohibition, other relevant public policies and proportionality. Its contractual and unjust-enrichment context did not show that Clunis or Gray was wrongly decided or could not stand with it. The Court of Appeal therefore remained bound by both cases.
6. The inheritance claim was especially inconsistent with public policy because the forfeiture proceedings had already considered the claimant’s responsibility and had not permitted recovery of the full inheritance.
7. It was unnecessary to consider whether the claim would independently fail under the Patel test.

• Court of Appeal (Civil Division): appeal dismissed.
• High Court of Justice, Queen’s Bench Division: Jay J determined the preliminary issue in favour of the Trust and dismissed the claims: [2016] EWHC 3275 (QB).