Gray v Thames Trains Ltd and another

JurisdictionUK Non-devolved
Judgment Date17 June 2009
Neutral Citation[2009] UKHL 33
Date17 June 2009
CourtHouse of Lords
(Original Respondent and Cross appellants)
Thames Trains

and others

(Original Appellant and Cross respondents)

[2009] UKHL 33

Appellate Committee

Lord Phillips of Worth Matravers

Lord Hoffmann

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Brown of Eaton-under-Heywood



Christopher Purchas QC

Steven Snowden

(Instructed by Halliwells LLP)


Anthony Scrivener QC

Toby Riley-Smith

(Instructed by Collins)


My Lords,


I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Hoffmann and Lord Rodger of Earlsferry and I agree, for the reasons given by each, that this appeal should be allowed. I wish, however, to add some comments on one aspect of this appeal which has caused me some concern.


The appellants' negligence was responsible for the Ladbroke Grove rail crash on 5 October 1999. Mr Gray sustained minor physical injuries in the crash, but more significant psychiatric injury in the form of post traumatic stress disorder (PTSD). Under the effects of this condition Mr Gray obtained a knife and repeatedly stabbed a drunken pedestrian, Mr Boultwood, with whom he had had an altercation after he had stepped in front of his car. The pedestrian died of his wounds. Mr Gray gave himself up to the police.


Mr Gray was charged with murder but the prosecution accepted a plea to manslaughter on the ground of diminished responsibility. On 3 March 2003 Rafferty J ordered him to be detained in hospital pursuant to section 37 of the Mental Health Act 1983, subject to an indefinite restriction order under section 41 of that Act. Mr Gray was detained in prison while a hospital placement was found and then moved to Runwell Hospital, where he remains detained.


The appellants have always accepted liability to Mr Gray for his physical and mental injuries and the legal consequences of the latter. The issue has related to the extent of those consequences. The appellants' case has been that those consequences effectively came to an end when Mr Gray killed Mr Boultwood. Thereafter he has experienced the consequences of his own criminal act, in respect of which he can bring no claim on grounds, inter alia, of public policy. The preliminary issue that has given rise to this appeal relates to the effect of the defence of public policy, commonly formulated in Latin as ex turpi causa non oritur actio.


Mr Gray advanced his claim on two bases. The first accepted that public policy would preclude recovery in respect of the consequences of the killing of Mr Boultwood - Clunis v Camden and Islington Health Authority [1998] QB 978; Worrall v British Railways Board ( unreported), 29 April 1999; Court of Appeal Transcript No 684. Mr Gray argued that he could nonetheless recover loss of earnings in respect of the period during which he was detained pursuant to Rafferty J's order. This was on the basis that the appellants had destroyed his earning capacity before the killing so that their negligence, rather than his act of manslaughter, was responsible for his loss of earnings. The Court of Appeal [2009] 2 WLR 351 accepted this argument but, for the reasons given by Lord Hoffmann and Lord Rodger, I consider that they should not have done so.


The alternative way in which Mr Gray put his case was rejected by the Court of Appeal but was advanced before your Lordships by way of cross-appeal. This was that the following events formed an unbroken chain of causation to which ex turpi causa had no application:

  • (i) the rail crash caused by the appellants' negligence;

  • (ii) Mr Gray's PTSD;

  • (iii) The killing of Mr Boultwood;

  • (iv) Mr Gray's conviction for manslaughter;

  • (v) The hospital order and Mr Gray's detention.


Up to the stage of argument in your Lordship's House it was Mr Gray's case that his act of manslaughter was the cause of the hospital order and his detention under it. On that premise I agree with Lord Hoffmann and Lord Rodger, for the reasons that they give, that public policy prevents Mr Gray from recovering damages for his detention and its consequences. In particular, I agree with Lord Hoffmann's identification of a wider and a narrower rule of public policy, applicable in this case.


Where I respectfully differ from Lord Hoffmann is in respect of the general applicability of the following passage in paragraph 41 of his opinion:

"But the sentence imposed by the court for a criminal offence is usually for a variety of purposes: punishment, treatment, reform, deterrence, protection of the public against the possibility of further offences. It would be impossible to make distinctions on the basis of what appeared to be its predominant purpose. In my view it must be assumed that the sentence was what the criminal court regarded as appropriate to reflect the personal responsibility of the accused for the crime he has committed"

While this statement is true of the sentence imposed by Rafferty J. it will not always be true of a hospital order imposed under section 37 of the 1983 Act.


In R v Drew [2003] UKHL 25; [2003] 1 WLR 1213, when giving the considered opinion of the Committee, Lord Bingham of Cornhill stated at paragraph 9 that it was unnecessary to review the detailed statutory provisions governing the admission of offenders to hospital under s. 37 of the 1983 Act since their effect was clearly and authoritatively explained by the Court of Appeal (Criminal Division) in R v Birch (1989) 11 Cr. App. R. (S.) 202 at 210. I shall follow Lord Bingham's example by quoting extensively from the judgment of that Court, given by Mustill LJ. The first passage at p. 210 deals with a hospital order under section 37 that is not accompanied by a restriction order under section 41:

"Once the offender is admitted to hospital pursuant to a hospital order or transfer order without restriction on discharge, his position is almost exactly the same as if he were a civil patient. In effect he passes out of the penal system and into the hospital regime. Neither the court nor the Secretary of State has any say in his disposal. Thus, like any other mental patient, he may be detained only for a period of six months, unless the authority to detain is renewed, an event which cannot happen unless certain conditions, which resemble those which were satisfied when he was admitted, are fulfilled. If the authority expires without being renewed, the patient may leave. Furthermore, he may be discharged at any time by the hospital managers or the 'responsible medical officer'. In addition to these regular modes of discharge, a patient who absconds or is absent without leave and is not retaken within 28 days is automatically discharged at the end of that period (section 18(5)) and if he is allowed continuous leave of absence for more than six [now twelve] months, he cannot be recalled (section 17(5)).

Another feature of the regime which affects the disordered offender and the civil patient alike is the power of the responsible medical officer to grant leave of absence from the hospital for a particular purpose, or for a specified or indefinite period of time: subject always to a power of recall (except as mentioned above).

There are certain differences between the positions of the offender and of the civil patient, relating to early access to the Review Tribunal and to discharge by the patient's nearest relative, but these are of comparatively modest importance. In general the offender is dealt with in a manner which appears, and is intended to be, humane by comparison with a custodial sentence. A hospital order is not a punishment. Questions of retribution and deterrence, whether personal or general, are immaterial. The offender who has become a patient is not kept on any kind of leash by the court, as he is when he consents to a probation order with a condition of inpatient treatment. The sole purpose of the order is to ensure that the offender receives the medical care and attention which he needs in the hope and expectation of course that the result will be to avoid the commission by the offender of further criminal acts."


Mustill LJ then added this in relation to the effect of a restriction order, at pp 210-11:

"In marked contrast with the regime under an ordinary hospital order, is an order coupled with a restriction on discharge pursuant to section 41. A restriction order has no existence independently of the hospital order to which it relates; it is not a separate means of disposal. Nevertheless, it fundamentally affects the circumstances in which the patient is detained. No longer is the offender regarded simply as a patient whose interests are paramount. No longer is the control of him handed over unconditionally to the hospital authorities. Instead the interests of public safety are regarded by transferring the responsibility for discharge from the responsible medical officer and the hospital to the Secretary of State alone (before September 30, 1983) and now to the Secretary of State and the Mental Health Review Tribunal. A patient who has been subject to a restriction order is likely to be detained for much longer in hospital than one who is not, and will have fewer opportunities for leave of absence."


In a third passage at p. 215 Mustill LJ dealt with the problem facing a sentencer where the defendant needs hospital treatment but his offence merits punishment:

"For the present purposes it is, we believe, sufficient to note that the choice of prison as an alternative to hospital may arise in two quite different ways: … (2) Where the sentencer considers that notwithstanding the offender's mental disorder there was an element of culpability in the offence which merits punishment. This may happen where there is no connection between the...

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