Gray Areas in Tort: Illegality and Authority after Patel v Mirza
| Published date | 01 September 2021 |
| Author | James C. Fisher |
| Date | 01 September 2021 |
| DOI | http://doi.org/10.1111/1468-2230.12637 |
bs_bs_banner
Modern Law Review
DOI:10.1111/1468-2230.12637
Gray Areas in Tort: Illegality and Authority after Patel v
Mirza
James C. Fisher∗
This comment describes and critiques the decision of the United Kingdom Supreme Court
in Henderson vDorset Healthcare University NHS Foundation Trust. It considers in particular the
Court’s position on the eect of Patel vMirza on previous illegality case law. It analyses the
enduring tensions between Patel and the House of Lords’ decision in Gray vThames Trains,
which the Supreme Court in Henderson upheld as enduringly authoritative notwithstanding the
rearticulation of the illegality principle in Pat el. It assesses the logical problems in the Supreme
Court’s position, and contextualises it as an attempt to mitigate Pate l ‘s potentially disruptive
eects on legal certainty.
INTRODUCTION AND FACTS
The facts in Henderson vDorset Healthcare University NHS Foundation Trust1
(Henderson) were heartbreaking. Ms Henderson had suered from paranoid
schizophrenia, or schizoaective disorder,for many years. While living substan-
tially independently under a Community Treatment Order,she f atally stabbed
her mother during an acute psychotic episode.She pleaded guilty to manslaugh-
ter by reason of diminished responsibility,to which the prosecution had agreed
on the basis of psychiatric evidence. The Crown Court made orders for her de-
tention in psychiatric medical facilities.2Ms Henderson subsequently sued the
defendant NHS Trust in negligence.The Trust admitted having breached their
duty of care to Ms Henderson by failing to rehospitalise her when her psycho-
logical condition deteriorated. The Trust also accepted that her mother’s death
would not have occurred but for this breach of duty.
Ms Henderson sought damages from the Trust in respect of: (i) personal
injury in the form of depression and Post-Traumatic Stress Disorder occasioned
by killing her mother, (ii) the cost of associated psychotherapy, (iii) the future
cost of a care manager or support worker,(iv) loss of amenity, (v) the (partial)
loss of an inheritance under her mother’s will by operation of the forfeiture
rule, and (vi) loss of liberty due to her detention. The Trust argued that all such
damages were precluded by the illegality rule, since all were consequences of
Ms Henderson’s own criminal action, or the criminal penalty imposed by the
∗Associate Professor, Faculty of Law,Sophia University (Tokyo,Japan).I am g rateful for the reviewer’s
helpful comments. Remaining errors are my own.
1Henderson vDorset Healthcare University NHS Foundation Trust [2020] UKSC 43.
2 Mental Health Act 1983, ss 37 and 41.
© 2021 The Author.The Modern Law Review © 2021 The Modern Law Review Limited. (2021) 84(5) MLR 1122–1136
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
