Kerrie Francis Gray v Thames Trains Ltd and Network Rail [QBD]
| Jurisdiction | England & Wales |
| Judge | Mr Justice Flaux |
| Judgment Date | 06 July 2007 |
| Neutral Citation | [2007] EWHC 1558 (QB) |
| Docket Number | Case No: HQO6X00793 |
| Court | Queen's Bench Division |
| Date | 06 July 2007 |
[2007] EWHC 1558 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Honourable Mr Justice Flaux
Case No: HQO6X00793
Mr Anthony Scrivener QC and Mr Toby Riley-Smith (instructed by Collins Solicitors, Watford) for the Claimant
Mr Mark Turner QC (instructed by Halliwells LLP) for the Defendants
Hearing dates: 25 and 26 June 2007
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONORABLE MR JUSTICE FLAUX
Mr Justice Flaux
Introduction
The Claimant in this case, Mr Kerrie Gray, who is now aged 47, was one of the victims of the Ladbroke Grove rail crash which occurred on 5 October 1999. He suffered relatively minor physical injuries, but the accident had a major psychological impact upon him, in the form of Post Traumatic Stress Disorder (“PTSD”). On 19 August 2001 he stabbed a stranger, Mr Frederick Boultwood, to death in Tilbury, Essex. On 22 April 2002, he pleaded guilty at the Crown Court at Chelmsford to manslaughter on the grounds of diminished responsibility.e suffered Her He was ordered to be detained in a hospital under section 37 of the Mental Health Act 1983. Since that date, he has been held at Runwell Hospital in Essex.
The present claim was issued in August 2005 against Thames Trains, as the operators of the train on which he was travelling at the time of the crash and Network Rail (formerly Railtrack), as the party responsible for the railway infrastructure. The claimant claims damages for negligence. Although some of his claim relates to losses suffered before the date of the manslaughter, in financial terms the preponderance of the claim relates to loss of earnings since the manslaughter up to the date of trial and to future loss of earnings hereafter. The defendants admit negligence but deny liability at least for the post 19 August 2001 losses. Their basis for doing so is that the claimant is precluded on grounds of public policy, by application of the principle ex turpi causa non oritur actio, from recovering such losses.
The claim was struck out by Master Leslie on the defendants' application but was subsequently reinstated by Mr Justice Holland on the grounds that the issues raised were better determined at trial. At the judge's suggestion, the claimant's counsel prepared a Re-Amended Schedule of Special Damages clarifying the nature of the various heads of claim being pursued. The claimant served a witness statement together with other statements from his family and friends testifying as to the effect of the Ladbroke Grove crash upon him, together with a number of psychiatric reports. Leave was given by Master Leslie to the parties to call one expert psychiatrist each. The claimant intended to call Dr Joseph. The defendants had the claimant examined by Dr Rosen but in the event did not serve a report from him.
The trial had been set down for five days. In the event, on the first day of the hearing, counsel agreed that I should determine the point of principle as to whether the claim was precluded on grounds of public policy as the defendants contend, on the basis that the facts set out in the Skeleton Argument on behalf of the claimant were essentially accepted by the defendants, without the need for any live evidence. This course was much to be commended, not least because it saved the claimant and his family and friends the ordeal of giving evidence.
The factual background
Before addressing the arguments raised on the point of principle, I will set out the factual background to the dispute, derived in large measure from the Skeleton Argument on behalf of the claimant.
The claimant was born on 22 April 1960. He had a happy and normal childhood. He obtained 5 CSEs. He had a number of serious relationships, most recently before the rail crash with a lady called Caroline whom he met at work in 1997 and with whom he shared his interests in amongst other things, football, cooking and music. At the time of the crash they were living together in Tilbury. In general, prior to the crash he lived a healthy and uneventful life.
He had no criminal convictions and no history of violence. On the contrary, he sought to avoid confrontation whenever possible. In July 1981 when he was 21, he was attacked by a group of youths. He did not retaliate but was hospitalised with a broken jaw. In August 1999, some youths threw a stick of bread at his car. When he got out to remonstrate with them, he was punched, but again he did not retaliate.
The claimant was in continuous employment prior to the crash. From 1984 to 1998, he worked for MFI, reaching the position of Deputy Call Centre Manager. When that job was relocated to Sunderland, he took voluntary redundancy. After a temporary job, he became events manager for Touchdown Promotions. On the day of the crash, he had just started working on a project with BT Cellnet at Slough and was on his way to work by train from Paddington.
He was a passenger in one of the carriages of the Thames Turbo Train coming out of Paddington, which bore the brunt of the collision with the inward bound First Great Western express. His recollection is of standing by a plate glass partition near the door and the next moment of lying on the floor surrounded by broken glass and bodies. The experience was a horrific one which left the claimant with vivid confused pictures of the dead and dying. His physical injuries were relatively minor, consisting of lacerations to his left eyelid and left hand. He had difficulty in walking and was unable to drive for a while.
The psychological impact of the crash upon the claimant was much more severe. The consistent medical opinion is that the experience of the crash caused him to develop PTSD, which had a marked depressive component, for which he received anti-depressant medication. He underwent a significant personality change, becoming socially withdrawn and anxious, suffering angry outbursts and shunning physical contact. Inevitably this led to a deterioration in his relationship with his partner. From about mid-2000 he received psychiatric treatment.
In the meantime, he returned to employment in December 1999, initially on a production line for Manpower. He was then approached by Touchdown and worked for them from January to June 2000. In that period, he only worked in fact for some eight weeks. He found the work increasingly difficult, suffering from mood swings and often crying for no reason. He also found having to use public transport to get to and from work frightening.
He took up a position with the London Borough of Hackney in June 2000 and in fact remained in their employ until dismissed in April 2002. In the period up until the killing of Mr Boultwood in August 2001, he found coping with the job increasingly difficult. Throughout this period he had frequent nightmares and panic attacks. He suffered flashbacks particularly of a man in the rail crash who had been crying out for help but whom the claimant had been unable to help. He recalled the smell of the burning carriage and felt guilt that he had survived. The psychiatrists who saw him agreed these were all symptoms of PTSD described by Dr Joseph as an abnormality of mind. Two incidents occurred after he started work at the London Borough of Hackney, one when a CS gas canister was thrown through the window of a train on which he was travelling and the other when an object was thrown at the train on which he was travelling, shattering the glass, which sprayed over his legs, as it had in the crash. These incidents served to exacerbate the PTSD.
The claimant began to drink heavily. His work suffered and his attendance record became a concern. In May and June 2001 he was absent from work for periods because of his depression. He was away from work again at the beginning of August 2001 with an infection and although he should have returned to work on 13 August 2001, he did not do so but stayed away without authorisation.
On Sunday 19 August 2001 at about 9.30 in the evening, the claimant was driving along Calcutta Road Tilbury, when Mr Boultwood, who was unknown to the claimant, stumbled into the road in front of the claimant's car causing him to stop. Mr Boultwood, who was highly intoxicated, punched the windows of the car. The claimant, who had been drinking earlier in the day, recalled being frightened by this, which reminded him of the rail crash and the broken glass. He got out of the car and a scuffle ensued between the two men. This was apparently broken up by a crowd of young people. The claimant recalled one of them, a girl, saying something threatening to him. He was angry and frightened.
The claimant drove to the house of his partner's parents and was seen by her mother to take a knife from a kitchen drawer. Although she tried to stop him, he ran off through the back door, climbed over the fence and drove off in his car in the direction that Mr Boultwood had walked. Having found Mr Boultwood walking along Dock Road Tilbury, the claimant stopped his car and got out, taking the knife, which he tucked into the waistband of his trousers at the back. He approached Mr Boultwood and grabbed him by the throat. He produced the knife from behind his back and stabbed Mr Boultwood several times. He then threw the knife away across the road where it landed under a car. He got back in his car and drove off at speed.
Early the following morning, Mr Boultwood died in hospital. That afternoon, the claimant handed himself in to the police and was interviewed then and on 21...
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