1339 Gray V Thames Trains LTD and Another

1339
[2009] 1 AC Gray v Thames Trains Ltd (HL(E))

(HL(E))
A House of Lords
Gray v Thames Trains Ltd and another

[2008] EWCA Civ 713
[2009] UKHL 33
B
2008 Feb 4, 5; Sir Anthony Clarke MR, Tuckey, Smith LJJ
June 25
2009 March 24, 25; Lord Phillips of Worth Matravers, Lord Ho›mann,
June 17 Lord Scott of Foscote, Lord Rodger of Earlsferry,
Lord Brown of Eaton-Under-Heywood
C Negligence Causation Loss of earnings Claimant injured in railway accident
caused by defendants negligence Claimant su›ering post-traumatic stress
disorder causing severe depression and psychological changes Claimant killing
man whilst su›ering from disorder and pleading guilty to manslaughter due
to diminished responsibility Damages for loss of earnings resulting from
post-traumatic stress disorder Whether claim for loss of earnings sustained
after date of killing barred on grounds of public policy Whether detention
D breaking chain of causation Whether other heads of claim barred on grounds
of public policy from date of killing
The claimant was a passenger on a train involved in a major railway accident. He

su›ered post-traumatic stress disorder which he alleged had been caused by the
accident. Whilst su›ering from that disorder he killed a man. His plea of guilty to
manslaughter on the ground of diminished responsibility was accepted by the Crown
E and he was ordered to be detained in a hospital under sections 37 and 41 of the
Mental Health Act 1983. The claimant brought an action in negligence against the
defendants, a train operator and the company responsible for the rail infrastructure.
The relief claimed included damages for loss of earnings after his detention, for loss
of liberty and damage to reputation, and for feelings of guilt and remorse consequent
on the killing, all of which he claimed had resulted from the post-traumatic stress
disorder caused by the defendants. He also sought an indemnity against any claims
F which might be brought against him by dependants of the man he had killed. The
defendants admitted negligence but claimed, in reliance on the maxim ex turpi causa
non oritur actio, that public policy precluded the recovery of losses incurred after the
date of the manslaughter. At the outset of the trial the judge ruled that since the claim
was reliant on the commission of a serious o›ence by the claimant the maxim
precluded recovery for both loss of earnings and general damages after and in
consequence of the killing. On the claimants appeal, the Court of Appeal held that
G the claimant was precluded from claiming general damages but not loss of earnings.
On the defendants appeal and the claimants cross-appeal
Held, (1) allowing the appeal, that, by reason of the need to avoid inconsistency
in the justice system, as a manifestation of the public policy expressed by the maxim
ex turpi causa non oritur actio a civil court would not award damages to compensate
a claimant for an injury or disadvantage which the criminal courts had imposed on
him by way of punishment for a criminal act for which he was responsible; that
H such policy therefore precluded a claim for damages for loss of earnings after
imprisonment for an o›ence notwithstanding that the tortious act of the defendant
had led the claimant to commit that o›ence, since the criminal court by its sentence
had found the claimant to have had personal responsibility for the crime and it
would be inconsistent for a civil court then to compensate him for the consequences
of that act, even if he had acted with diminished responsibility; that, moreover, the
1340
Gray v Thames Trains Ltd (HL(E))
(HL(E)) [2009] 1 AC
fact that the claim for loss of earnings had arisen prior to the claimant carrying out A
the criminal act which had resulted in the detention and so would have prevented
him from working in any event did not entitle the claimant to damages for loss of
earnings during detention both (Lord Brown of Eaton-under-Heywood dubitante)
on the ground of causation in that the court could not disregard the fact that the
claimant had been detained and thus could not work, and ( per Lord Phillips of
Worth Matravers , Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Brown
of Eaton-under-Heywood) on the ground of public policy in that such a claim would B
also fall within the ambit of the policy precluding recovery on the ground of
consistency, which required the civil court to acknowledge that the criminal court
had deemed it necessary to impose a sentence of imprisonment or a hospital order
which removed the claimants earning capacity; and that, accordingly, the claimant
was precluded from claiming loss of earnings after his detention, notwithstanding
that the claim had arisen before the killing and might have continued in any event
( post, paras 1, 5, 7, 32, 37, 41, 44, 48—50, 56, 64, 69, 75, 77—79, 81—82, 88, 93,
C
101, 103—104).
Jobling v Associated Dairies Ltd [1982] AC 794, HL(E), Clunis v Camden and
Islington Health Authority [1998] QB 978, CA and Corr v IBC Vehicles Ltd [2008]
AC 884, HL(E) considered.
(2) Dismissing the cross-appeal, that the claims by the claimant for general
damages for his detention, conviction and damage to reputation, being all claims for
damage caused by the lawful sentence imposed upon him for manslaughter, were also
precluded, by the operation of the ex turpi causa rule ( post, paras 1, 7, 50, 56, 88, D
103—104).
(3) That an application of the ex turpi causa rule established that where a
claimants injury or disadvantage was not a consequence of the sentence of the
criminal court, recovery was still precluded if the injury was the consequence of the
claimants own unlawful act, the question being whether, although the injury would
not have happened but for the tortious conduct of the defendant, it was caused by the
criminal act of the claimant; and that, accordingly, the claimants claims for an E
indemnity and for damages for feelings of guilt and remorse consequent on the killing
were precluded as being in consequence of that criminal act ( post, paras 1, 7, 52—55,
56, 84—88, 103—104).
Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218,
CA considered.
Per Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry and Lord Brown
of Eaton-under-Heywood. In extreme cases, where the sentencing judge has made it F
clear that the defendants o›ending behaviour has played no part in the decision to
impose a hospital order under section 37 of the Mental Health Act 1983, it is
arguable that the hospital order should be treated as being a consequence of the
defendants mental condition and not of the defendants criminal act. In that event
the public policy defence of ex turpi causa would not apply ( post, paras 15, 83, 103).
R v Drew [2003] 1 WLR 1213, HL(E) considered.
Decision of the Court of Appeal, post, p 1343; [2008] EWCA Civ 713; [2009] G
2 WLR 351 reversed.
The following cases are referred to in the opinions of the Committee:
Askey v Golden Wine Co Ltd [1948] 2 All ER 35
Baker v Willoughby [1970] AC 467; [1970] 2 WLR 50; [1969] 3 All ER 1528, HL(E)
British Columbia v Zastowny 2008 SCC 4; [2008] 1 SCR 27
Clunis v Camden and Islington Health Authority [1998] QB 978; [1998] 2 WLR H
902; [1998] 3 All ER 180, CA
Corr v IBC Vehicles Ltd [2008] UKHL 13; [2008] AC 884; [2008] 2 WLR 499;
[2008] ICR 372; [2008] 2 All ER 943, HL(E)
Cross v Kirkby The Times, 5 April 2000; [2000] CATranscript No 321, CA
Faulkner v Ke›alinos (1970) 45 ALJR 80
1341
(HL(E))
A Holman v Johnson (1775) 1 Cowp 341

Hunter Area Health Service v Presland [2005] NSWCA 33; 63 NSWLR 22
Jobling v Associated Dairies Ltd [1982] AC 794; [1981] 3 WLR 155; [1981] 2 All ER
752, HL(E)
Meah v McCreamer [1985] 1 All ER 367
Meah v McCreamer (No 2) [1986] 1 All ER 943
National Coal Board v England [1954] AC 403; [1954] 2 WLR 400; [1954] 1 All ER
B 546, HL(E)
Nelson v Nelson (1995) 184 CLR 538
R v Birch (1989) 11 Cr App R (S) 202, CA
R v Drew [2003] UKHL 25; [2003] 1 WLR 1213; [2003] 4 All ER 557, HL(E)
R v Eaton [1976] Crim LR 390, CCA
Rahman v Arearose Ltd [2001] QB 351; [2000] 3 WLR 1184, CA
Reeves v Comr of Police of the Metropolis [2000] 1 AC 360; [1999] 3 WLR 363;
C [1999] 3 All ER 897, HL(E)
Revill v Newbery [1996] QB 567; [1996] 2 WLR 239; [1996] 1 All ER 291, CA
Saunders v Edwards [1987] 1 WLR 1116; [1987] 2 All ER 651, CA
State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500
Tinsley v Milligan [1994] 1 AC 340; [1993] 3 WLR 126; [1993] 3 All ER 65, HL(E)
Vellino v Chief Constable of the Greater Manchester Police [2001] EWCA Civ 1249;
[2002] 1 WLR 218; [2002] 3 All ER 78, CA
Worrall v British Railways Board (unreported) 29 April 1999; [1999] CA Transcript
D
No 684, CA
The following additional cases were cited in argument before the House of Lords:
Hall v Hebert [1993] 2 SCR 159
R v Chambers (1983) 5 Cr App R (S) 190, CA
Standard Chartered Bank v Pakistan National Shipping Corpn (No 2) [2000]
E 1 Lloyds Rep 218, CA
Williamson v John I Thornycroft & Co Ltd [1940] 2 KB 658; [1940] 4 All ER 61, CA
The following cases are referred to in the judgment of the Court of Appeal:
Bowmakers Ltd v Barnet Instruments Ltd [1945] KB 65; [1944] 2 All ER 579, CA
Clunis v Camden and Islington Health Authority [1998] QB 978; [1998] 2 WLR
F 902; [1998] 3 All ER 180, CA
Corr v IBC Vehicles Ltd [2008] UKHL 13; [2008] AC 884; [2008] 2 WLR 499;
[2008] ICR 372; [2008] 2 All ER 943, HL(E)
Cross v Kirkby The Times, 5 April 2000; [2000] CATranscript No 321, CA
Hewison v Meridian Shipping Services PTE Ltd [2002] EWCA Civ 1821; [2003]
ICR 766, CA
Holman v Johnson (1775) 1 Cowp 341
G Hughes v Lord Advocate [1963] AC 837; [1963] 2 WLR 779; [1963] 1 All ER 705,
HL(Sc)
KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85; [2003] QB 1441;
[2003] 3 WLR 107; [2004] 2 All ER 716, CA
MNaghtens Case (1843) 10 Cl & Fin 200
Page v Smith [1996] AC 155; [1995] 2 WLR 644; [1995] 2 All ER 736, HL(E)
Saunders v Edwards [1987] 1 WLR 1116; [1987] 2 All ER 651, CA
H Tinsley v Milligan [1994] 1 AC 340; [1993] 3 WLR 126; [1993] 3 All ER 65, HL(E)
Vellino v Chief Constable of the Greater Manchester Police [2001] EWCA Civ 1249;
[2002] 1 WLR 218; [2002] 3 All ER 78, CA
Worrall v British Railways Board (unreported) 29 April 1999; [1999] CA Transcript
No 684, CA
Wright Estate v Davidson (1992) 88 DLR (4th) 698
1342
Gray v Thames Trains Ltd (CA) [2009] 1 AC
The following additional cases were cited in argument before the Court of Appeal: A
Baker v Willoughby [1970] AC 467; [1970] 2 WLR 50; [1969] 3 All ER 1528,
HL(E)
Gray v Barr [1971] QB 554; [1971] 2 WLR 1334; [1971] 2 All ER 949, CA
Jobling v Associated Dairies Ltd [1982] AC 794; [1981] 3 WLR 155; [1981] 2 All ER
752, HL(E)
Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 283;
[1990] 2 WLR 987; [1990] 3 All ER 246, CA B
Meah v McCreamer [1985] 1 All ER 367
Rahman v Arearose Ltd [2001] QB 351; [2000] 3 WLR 1184, CA
Revill v Newbery [1996] QB 567; [1996] 2 WLR 239; [1996] 1 All ER 291, CA
Standard Chartered Bank v Pakistan National Shipping Corpn (No 2) [2000]
1 Lloyds Rep 218, CA
The following additional cases, although not cited, were referred to in the skeleton C
arguments before the Court of Appeal:
Carver v BAA plc [2008] EWCA Civ 412; [2009] 1 WLR 113; [2008] 3 All ER 911,
CA
Cobbold v Greenwich London Borough Council (unreported) 9 August 1999; [1999]
CATranscript No 1406, CA
Dering v Earl of Winchelsea (1787) 1 Cox Eq 318
Hunter Area Health Service v Presland [2005] NSWCA 33; 63 NSWLR 22 D
National Coal Board v England [1954] AC 403; [1954] 2 WLR 400; [1954] 1 All ER
546, HL(E)
Pitts v Hunt [1991] 1 QB 24; [1990] 3 WLR 542; [1990] 3 All ER 344, CA
Reeves v Comr of Police of the Metropolis [1999] QB 169; [1998] 2 WLR 401;
[1998] 2 All ER 381, CA; [2000] 1 AC 360; [1999] 3 WLR 363; [1999] 3 All ER
897, HL(E)
State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500 E
APPEAL from Flaux J

On 5 October 1999 the claimant, Kerrie Francis Gray, was involved in a
rail crash at Ladbroke Grove, London when travelling on a train operated by
the rst defendant, Thames Trains Ltd, on track owned and maintained
by the second defendant, Network Rail (formerly Railtrack), as a result
F
of which he sustained injuries including post traumatic stress disorder.
On 19 August 2001 whilst su›ering from that disorder the claimant killed
a stranger. On 22 April 2002 he pleaded guilty to manslaughter on the
grounds of diminished responsibility and was ordered to be detained under
section 37 of the Mental Health Act 1983 with a restriction order under
section 41 of the Act.
By a claim form dated 17 August 2005, the limitation period for the issue G
of the claim form having been extended by consent, the claimant claimed
from the defendants damages in negligence for the personal injuries caused
by the accident. The defendant admitted liability for the claimants injuries
and loss of earnings until 19 August 2001 but denied liability for any loss
arising thereafter, relying on the defence ex turpi causa non oritur actio.
On 6 July 2007 Flaux J dismissed the claimants claim for losses arising
H
after 19 August 2001 on the grounds of public policy based on the doctrine
of ex turpi causa non oritur actio.
By an appellants notice dated 20 July 2007 and pursuant to permission
granted by the Court of Appeal (Tuckey LJ), the claimant appealed on the
grounds, inter alia, that (1) the judge had misdirected himself as to the
1343
[2009] 1 AC Gray v Thames Trains Ltd (CA)
Sir Anthony Clarke MR
A application of the ex turpi causa doctrine, in that the claimant claimed no

damages arising from the manslaughter or the sentence and had obtained
and sought no benet from the same, the undisputed medical evidence
showed that the claimants post traumatic stress disorder had arisen as a
result of the rail crash and the homicide would not have taken place but
for the original rail accident, which had occurred two years before the
B manslaughter, and the facts on which the claim was based were thus neither
founded on nor inextricably linked with the manslaughter; (2) the judge
had been wrong not to follow Tinsley v Milligan [1994] 1 AC 340 when
considering the application of the doctrine ex turpi causa non oritur actio;
(3) alternatively, if the judge had been right to hold that the proper test in
tort cases generally was whether the claim is so closely connected or
inextricably bound up in his own criminal conduct that the court cannot
C
permit him to recover without appearing to condone that conduct, he had
been wrong to conclude that the claimants claim for damages was closely
connected to or inextricably bound to the killing as to preclude recovery
of the damages claimed, since the reference to the manslaughter in the
re-amended schedule of loss was not relied upon by the claimant to found his
claim; the judge had been wrong to conclude that the manslaughter had
D become connected to or inextricably linked with the claim for damages by
reason of the defendants subsequent reliance on it in support of a plea of
novus actus interveniens; (4) alternatively, if the judge had been right to hold
that the principle ex turpi causa non oritur actio applied, he had been wrong
to conclude that it applied to any losses other than those su›ered in the
period of his incarceration; and (5) the judge had been wrong to conclude
E that the claimant would not have su›ered the same loss and damage
irrespective of the manslaughter, and that the principle in Jobling v
Associated Dairies Ltd [1982] AC 794 applied in a case in which the
manslaughter that was relied upon had been caused by the tortfeasors
own tortious act.
The facts are stated in the judgment of the court.
F
Anthony Scrivener QC and Toby Riley-Smith (instructed by Collins,
Watford) for the claimant.
Christopher Purchas QC (instructed by Halliwells LLP) for the
defendants.
The court took time for consideration.

G
25 June 2008. SIR ANTHONY CLARKE MR handed down the
following judgment of the court.
Introduction
1 This appeal raises questions about the limits of the doctrine still
H known as ex turpi causa non oritur actio. It arises out of a decision of
Flaux J [2007] EWHC 1558 (QB) made on 6 July 2007, in which he held
that the claimants claim was precluded on the ground of public policy based
on that doctrine. He refused permission to appeal but permission was
subsequently granted by Tuckey LJ.
1344
The facts and the proceedings A

2 We can take the facts largely from the judgment. The claimant is now
aged 48. He was one of the victims of the Ladbroke Grove rail crash which
occurred on 5 October 1999. He su›ered 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 to death in Tilbury, Essex. On 22 April 2002 he pleaded guilty to B
manslaughter on the grounds of diminished responsibility. He was ordered
to be detained in a hospital under section 37 of the Mental Health Act 1983.
3 In this action the claimant claims damages against both defendants,
as the operator of the train and as the entity responsible for the rail
infrastructure respectively. They both admit that they owed him a duty of
care and that they were in breach of that duty. In short, they admit that his
C
injuries, including his PTSD, were caused by their negligence. They further
admit that they are in principle liable in respect of his losses, including loss of
earnings, incurred before 19 August 2001. However, they deny liability in
respect of losses incurred after that date on the basis that ex turpi causa non
oritur actio. The claimants claim for those losses was struck out by Master
Leslie but was reinstated by Holland J on the ground that the issues raised
were better determined at a trial. D
4 After Holland Js order, the claimants counsel prepared a re-amended
schedule of special damages clarifying the nature of the various heads of
claim being pursued. In addition, the claimants solicitors served a witness
statement together with other statements from his family and friends
testifying to the e›ect of the Ladbroke Grove crash upon him and a number
of psychiatric reports. The parties were each given permission to call one E
expert psychiatrist. The claimants solicitors served evidence from Dr Philip
Joseph, who is a consultant psychiatrist, and indicated their intention to call
him. Although the defendants had the claimant examined by Dr Rosen, they
gave no notice of any intention to call him and claimed privilege for his
report, as they were entitled to do.
5 At para 4 in his judgment, the judge noted that the trial had been set
down for ve days but that on the rst day of the hearing counsel agreed F
that he should determine the point of principle as to whether, as the
defendants contended, the claim was precluded on grounds of public policy,
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. It was we think contemplated that the judge would, so
far as necessary, look at the evidence of Dr Joseph and, indeed, the other G
written evidence.
6 We consider rst the issues of ex turpi causa which were debated
before the judge. There was no (or very little) argument before the judge on
issues or potential issues relating to reasonable foreseeability, causation or
contributory negligence (or fault). However after the argument in this
appeal the House of Lords decided the important case of Corr v IBC Vehicles
H
Ltd [2008] AC 884. Although the Corr case is a suicide case, it appeared
to us to raise questions which might be of signicance in this appeal.
We therefore asked the parties if they wished to make submissions arising
out of it. They have done so and we return to it below after considering the
issues before the judge and the oral argument addressed to us.
1345
A 7 The judge set out the facts [2007] EWHC 1558 at [5]—[17].
For present purposes they can be summarised in this way:
(i) Before the crash the claimant 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, as evidenced by two
incidents in 1981 and 1999. For example, in August 1999, some youths
threw a stick of bread at his car; he got out to remonstrate with them, but
B
when he was punched by them he did not retaliate. He was in continuous
employment before the crash and was on the way to work when the crash
occurred: see paras 6—8.
(ii) 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
C a plate glass partition near the door and the next moment of lying on the
oor surrounded by broken glass and bodies. The experience was a horric
one which left the claimant with vivid but 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 di–culty in walking and was unable
to drive for a while: see para 9.
(iii) The psychological impact of the crash upon the claimant was much
D
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 signicant personality change, becoming socially withdrawn
and anxious, su›ering angry outbursts and shunning physical contact.
Inevitably this led to a deterioration in his relationship with his partner.
E From about mid-2000 he received psychiatric treatment: see para 10.
(iv) In the meantime, he returned to employment in December 1999,
initially on a production line. He was then approached by Touchdown
Promotions and worked for them from January to June 2000. However, in
that period he only worked for some eight weeks because he found the work
increasingly di–cult, su›ering from mood swings and often crying for no
reason. He also found having to use public transport to get to and from
F
work frightening: see para 11.
(v) He worked for Hackney London Borough Council from June 2000
until he was dismissed in April 2002. In the period up until the killing of
Mr Boultwood in August 2001, he found coping with the job increasingly
di–cult. Throughout this period he had frequent nightmares and panic
attacks. He su›ered ashbacks, particularly of a man in the rail crash who
G 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 that these were all
symptoms of PTSD, which was described by Dr Joseph as an abnormality of
mind. The PTSD was exacerbated by two incidents on trains while he was
working at Hackney: see para 12.
(vi) The claimant began to drink heavily. His work su›ered and his
H
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: see para 13.
1 AC 200947
1346
(vii) On Sunday 19 August 2001 at about 9.30 in the evening, the A

claimant was driving along Calcutta Road in Tilbury, when Mr Boultwood,
who was unknown to the claimant, stumbled into the road in front of the
claimants 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. He was reminded of
the rail crash and the broken glass. He got out of the car and a scu´e ensued
B
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: see para 14.
(viii) The claimant drove to the house of his partners parents and was
seen by her mother to take a knife from a kitchen drawer. Although she tried
to stop him, he ran o› through the back door, climbed over the fence and
drove o› in his car in the direction that Mr Boultwood had walked. Having C
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. He got back in his car and drove o› at speed: see para 15.
D
(ix) Early the following morning, 20 August, Mr Boultwood died in
hospital. That afternoon, the claimant handed himself in to the police and
was interviewed, both then and on the next day, 21 August. He had no
recollection of the stabbing other than a vague recollection of getting out of
the car and putting the knife in his back pocket and a memory of throwing
the knife away. On the evening of 21 August 2001, he was charged with
murder. He was thereafter remanded in custody: see para 16. E
(x) The claimant was examined by Dr Nicholas Silver, who is or was a
senior specialist registrar in neurology, on behalf of the Crown and
Dr Joseph on behalf of the defence. Their reports, dated 18 and 19 April
2002 respectively, both concluded that he was su›ering from a serious
psychological disorder, namely PTSD, at the time of the killing and therefore
had diminished responsibility within the meaning of section 2 of the
Homicide Act 1957. On 22 April 2002, the Crown accepted his plea of F
guilty of manslaughter through diminished responsibility. He was sentenced
to be detained in a hospital pursuant to section 37 of the Mental Health Act
1983, with a restriction order under section 41 of the same Act. After an
initial period in prison, he was moved to Runwell Hospital, Wickford,
Essex, where he has been detained ever since: see para 17.
G
The issue
8 The claimant does not claim compensation for the consequences of
being detained in a mental hospital under sections 37 and 41 of the Mental
Health Act 1983. He recognises that to do so would be to fall foul of the
ex turpi causa principle because it would involve his relying upon the fact
that he was so detained pursuant to the order of the Crown Court
H
consequent upon his plea of guilty to manslaughter. However, he submits
that he is entitled to the earnings he lost as a result of the PTSD. He submits
that on the evidence it is plain that, by reason of the PTSD caused by the
defendants negligence, he was not able to earn as much as he would have
done but for the accident. The judge rejected his claim for loss of earnings
1347
A after the manslaughter. He held that a claimant falls foul of the ex turpi
causa principle if his claim is, as the judge put it at para 18, closely connected
with or inextricably bound up with his own criminal or illegal conduct.
He further held that this is such a case.
9 Mr Anthony Scrivener submits on behalf of the claimant that the judge
applied the wrong test or, alternatively, that the claimants claim here is not
connected with or inextricably bound up with the manslaughter in the sense
B
used in the cases. Mr Christopher Purchas submits that the judge was right.
The test
10 The principle derives originally from the judgment of Lord
Manseld in Holman v Johnson (1775) 1 Cowp 341, 343:
C The objection, that a contract is immoral or illegal as between
plainti› and defendant, sounds at all times very ill in the mouth of the
defendant. It is not for his sake, however, that the objection is ever
allowed; but it is founded in general principles of policy, which the
defendant has the advantage of, contrary to the real justice, as between
him and the plainti›, by accident, if I may so say. The principle of public
policy is this; ex dolo malo non oritur actio. No court will lend its aid to
D a man who founds his cause of action upon an immoral or an illegal act.
If, from the plainti›s own stating or otherwise, the cause of action
appears to arise ex turpi causa, or the transgression of a positive law of
this country, there the court says he has no right to be assisted. It is upon
that ground the court goes; not for the sake of the defendant, but because
they will not lend their aid to such a plainti›. So if the plainti› and
E defendant were to change sides, and the defendant was to bring his action
against the plainti›, the latter would then have the advantage of it; for
where both are equally in fault, potior est conditio defendentis. The
question therefore is, whether, in this case, the plainti›s demand is
founded upon the ground of any immoral act or contract, or upon the
ground of his being guilty of any thing which is prohibited by a positive
law of this country.
F
11 The judge [2007] EWHC 1558 at [19] set out that passage as
italicised above. He noted, at para 20, that Mr Scrivener relied upon the
italicised part in support of his submission that the principle only applies
where the claimant is relying upon his own unlawful or immoral act. It is
not in dispute that that is the principle in a case in which the claimants case
is brought in reliance upon a contract or in reliance upon collateral rights
G
acquired under a contract. That is clear from the decision of the House of
Lords in Tinsley v Milligan [1994] 1 AC 340 in which the House rejected the
doctrine that (as the judge put it, at para 21), relief should only be denied a
claimant where it would be an a›ront to public conscience. Such a
doctrine would involve a balancing exercise, which the House did not think
appropriate. In the context of a collateral rights case such as Bowmakers
H Ltd v Barnet Instruments Ltd [1945] KB 65, Lord Browne-Wilkinson stated
the test as follows in Tinsley v Milligan [1994] 1 AC 340, 377:
In a case where the plainti› is not seeking to enforce an unlawful
contract but founds his case on collateral rights acquired under the
contract (such as a right of property) the court is neither bound nor
1348
entitled to reject the claim unless the illegality of necessity forms part of A
the plainti›s case.
Mr Scrivener submits that that test in principle applies here but that it does
not apply on the facts because the manslaughter does not form part of the
claimants case and, in any event, because the claimants cause of action was
complete when he su›ered injury at the time of the accident.
12 We take the last of those submissions rst. The judge rejected it B
and so would we. Tuckey LJ and I comprised the majority in this court
(Ward LJ dissenting) in Hewison v Meridian Shipping PTE Ltd [2003]
ICR 766 where it was common ground that the claimant could recover the
various heads of loss claimed but the issue was whether he could recover loss
of earnings as a crane driver. We held that he could not, on the basis of the
same principle of public policy, albeit expressed as ex turpi causa non oritur C
damnum, on the ground that, in order to recover that loss of earnings, the
claimant would have had to continue fraudulently to represent to his
employers that he had not had any epileptic ts and fraudulently to conceal
from them that he was taking anti-convulsants for epilepsy: see para 28.
I added in that paragraph that a classic example of the application of the
principle would prevent a claimant who makes his living from burglary from
having his damages assessed on the basis of what he would have earned from D
burglary but for the defendants negligence. So the question here is whether
the claimant should be defeated by the principle ex turpi causa non oritur
damnum, where the damnum is the earnings which the claimant would have
made if there had been no accident.
13 We note in passing that the application of the principle applied in
Hewison v Meridian Shipping PTE Ltd [2003] ICR 766 would not defeat E
the claimants claim here because the claimant is not relying upon the
consequences of the manslaughter to establish his loss of earnings. So the
rst question for decision is whether the principle in Tinsley v Milligan
[1994] 1 AC 340 applies to a case of this kind.
14 There are serious di–culties in the claimants way. First, we note, as
the judge did, at para 22, that the editors of Clerk & Lindsell on Torts,
19th ed (2006) point out, at para 3-12, that this approach is less readily F
applicable in the context of tort cases than it is in the case of contractual or
property disputes. The judge quoted this passage from para 3-13:
A strict application of Tinsley v Milligan across all forms of tort
action would limit the applicability of the defence to those ( probably
comparatively rare) situations in which the claimant has to rely (however
that term is interpreted) on the illegality as part of his claim. G
That is true but would it matter? It is by no means clear to us that it would

or should matter in a case in which the illegal act was caused by the tort.
15 However that may be, the judge rejected Mr Scriveners submission
on the basis that it was inconsistent with the decision of this court in Cross v
Kirkby The Times, 5 April 2000; [2000] CA Transcript No 321, where the
H
facts were these. The claimant, Mr Cross, was vehemently opposed to
hunting. The defendant, Mr Kirkby, was a farmer who allowed the hunt
to go across his land, as it did on the day in question. During the morning
there had been some altercations between the claimant and his partner,
Mrs Davis, on the one hand and the defendant on the other. On more than
1349
A one occasion the defendant had escorted the claimant and his partner o› the
land. There came a time when Mrs Davis bit the defendant while she was
being walked o› the land. Shortly afterwards the claimant attacked the
defendant. Mrs Davis got an iron bar out of the car and the claimant armed
himself with a baseball bat. As Beldam LJ put it, the claimant was angry,
almost hysterical. He banged the bat on the ground, splitting it. He shouted:
B Youre fucking dead Kirkby. He jabbed him in the chest and in the throat
with the bat. The defendant started to walk away but the claimant persisted.
To ward o› blows with the bat, the defendant turned and grappled with the
claimant. Wrestling the bat from him, he hit the claimant with a single blow
on the side of the head. Unfortunately the blow caused a linear fracture of
the claimants head and subdural bleeding and the claimant subsequently
su›ered epileptic attacks.
C
16 The claimant claimed damages for assault. The defence was
self-defence on the basis that the claimant had armed himself with the bat,
had repeatedly assaulted the defendant and had threatened to kill him.
He said ex turpi causa non oritur actio. After a long trial, the judge rejected
both the defence of self-defence and the plea of ex turpi causa. He held that
the claimant was 60% responsible and awarded him 40% of the full measure
D of damages. It is plain from the transcript that from the outset the court,
which comprised Beldam, Otton and Judge LJJ, took the view that the judge
should have upheld the defence of self-defence. The court suggested that
the defendant might amend his grounds of appeal to take the point and
permitted him to do so. After a very detailed analysis of the evidence
Beldam LJ concluded that the judge should have held that the defendant
E was acting in self-defence. Otton LJ agreed with Beldam LJ and Judge LJ did
so too, although (unlike Otton LJ) he analysed the self-defence issues in
some detail.
17 Beldam LJ said that, if he was wrong on self-defence, he would
nevertheless nd that that the claimants case failed on the ground that
his injuries arose from his own criminal and unlawful acts. Beldam LJ
considered the arguments in some detail. The only point which is of
F
signicance in this appeal is that he rejected the submission that the principle
in Tinsley v Milligan [1994] 1 AC 340 applied to cases of assault of the kind
before the court. He stated the general principle, as applied to such a case, as
follows [2000] CA Transcript No 321, para 76 (in a passage quoted by the
judge, at para 27):
G
I do not believe that there is any general principle that the claimant
must either plead, give evidence of or rely on his own illegality for the
principle to apply. Such a technical approach is entirely absent from Lord
Manselds exposition of the principle. I would however accept that for
the principle to operate the claim made by the claimant must arise out of
criminal or illegal conduct on his part. In this context arise out of clearly
denotes a causal connection with the conduct a view which is implicit in
H such di›erent cases as Lane v Holloway [1968] 1 QB 379 and the recent
case to which we were referred in this court, Standard Chartered Bank v
Pakistan National Shipping Corpn (No 2) [2000] 1 Lloyds Rep 218.
In my view the principle applies when the claimants claim is so closely
connected or inextricably bound up with his own criminal or illegal
1350
conduct that the court could not permit him to recover without appearing A
to condone that conduct.
18 Judge LJ also analysed this part of the case in some detail in an
illuminating judgment. He quoted part of the judgment of Bingham LJ in
Saunders v Edwards [1987] 1 WLR 1116. His quotation included this
statement at p 1134:
B
Where the plainti›s action in truth arises directly ex turpi causa, he is
likely to fail . . . Where the plainti› has su›ered a genuine wrong, to
which the allegedly unlawful conduct is incidental, he is likely to
succeed.
Judge LJ (in our view correctly) regarded that statement as a helpful
touchstone and expressed the principle in his own words [2000] CA
C
Transcript No 321, para 103 thus:
In my judgment, where the claimant is behaving unlawfully, or
criminally, on the occasion when his cause of action in tort arises, his
claim is not liable to be defeated ex turpi causa unless it is also established
that the facts which give rise to it are inextricably linked with his criminal
conduct. I have deliberately expressed myself in language which goes
D
well beyond questions of causation in the general sense.
The court held on the facts that, even if the defence of self-defence failed,
perhaps on the basis that the defendant went further then he should have
done in reasonable self-defence, the delivery of his blow was inextricably
linked with the assaults to which he had been subjected.
19 We agree with the view expressed by the judge [2007] EWHC 1588
E
at [29], that Sir Murray Stuart-Smith was not seeking to lay down a di›erent
test in Vellino v Chief Constable of Greater Manchester [2002] 1 WLR 218
where (having cited inter alia Tinsley v Milligan [1994] 1 AC 340 and Cross
v Kirkby [2000] CA Transcript No 321) he said [2002] 1 WLR 218, para 70:
From these authorities I derive the following propositions: 1. The
operation of the principle arises where the claimants claim is founded F
upon his own criminal or immoral act. The facts which give rise to the
claim must be inextricably linked with the criminal activity. It is not
su–cient if the criminal activity merely gives occasion for tortious
conduct of the defendant.
20 In these circumstances we agree with the judge that the test in
Tinsley v Milligan [1994] 1 AC 340 is too narrow to apply to a case in tort G
like the instant case. As applied to a case like this, where it is not suggested
that the cause of action arises out of an illegal act, the question seems to us to
be whether the relevant loss is inextricably linked with the claimants illegal
act or, as Beldam LJ put it, so closely connected or inextricably bound up
with his criminal or illegal conduct that the court could not permit him to
recover without appearing to condone that conduct.
H
Application to the facts
21 On the facts, the judge answered that question yes. Mr Scrivener
submits that he was wrong to do so. The judge said [2007] EWHC 1558
at [31], that, in his view, to argue that the loss of earnings after the
1351
A manslaughter was somehow independent of it was unreal and that on

analysis the claim after 19 April 2001 was dependent on the manslaughter.
At para 32, the judge noted the argument advanced by counsel for the
defendants (not then Mr Purchas) that, if the claimant had committed a
criminal o›ence for which he had been imprisoned or detained in hospital
but which was not attributable to the PTSD, the defendant would have had a
B complete defence in respect of losses after his incarceration, not because of
any principle of ex turpi causa, but because the commission of the o›ence
and the incarceration for it would be a break in the chain of causation. That
is plainly correct.
22 The judge added in para 32, that he agreed with counsel:
that in order to avoid that consequence in the present case, the
C claimant has to rely upon the manslaughter and to contend that it was
caused by the PTSD which in turn was caused by the negligence of the
defendants.
We do not agree that that is so. The claimants case is simply that he has
su›ered a loss because, but for the tort, he would have earned money both
before and after 19 April 2001 and that he is therefore entitled to recover the
D whole of his loss of earnings from the defendants. The manslaughter is not
inextricably bound up with that claim. Although, as the judge demonstrated
in para 33, the claimants re-amended schedule of special damages set out
the facts relating to the manslaughter and expressly alleged that the claimant
would not have killed Mr Boultwood but for mental illness caused by the
accident, that was not, as we see it, a necessary part of his case.
23 Although the legal burden of establishing causation in respect of
E
each head of loss remains on the claimant, the evidential burden of showing
that the manslaughter and the claimants incarceration amounted to a break
in the chain of causation is on the defendants. In such circumstances it is a
matter for the trial judge to decide whether it broke the chain of causation or
not. If it did, the claim would fail for that reason.
24 However, the court might not so hold because it is of course the
F claimants case, supported by the evidence of Dr Joseph (and not
contradicted by any other psychiatric expert) that he would not have
committed the manslaughter but for the defendants negligence. The
claimant says that in these circumstances that there was no break in the
chain of causation, the true cause (alternatively a cause) being the PTSD
caused by the tort. Moreover, he says that that is so notwithstanding that he
G intended to kill or cause serious harm to Mr Boultwood. If the court were so
to hold, it would do so on the basis that the (alternatively a) proximate or
e›ective cause of the loss of earnings was the tort. If the manslaughter did
not break the chain of causation between the tort and the loss of earnings (in
the sense described by the House of Lords in the Corr case [2008] AC 884
discussed below), it does not seem to us that it can fairly be said that the loss
of earnings after 19 August 2001 was inextricably linked with the claimants
H illegal act or, as Beldam LJ put it, so closely connected or inextricably bound
up with his criminal or illegal conduct that the court could not permit him to
recover without appearing to condone that conduct. We return below to the
question whether, in the light of the Corr case, there was a break in the chain
of causation on the facts.
1352
25 The other possibility is that the court might hold that this is a case to A
which the Law Reform (Contributory Negligence) Act 1945 applied. That
would be on the basis that the manslaughter was fault within the meaning
of section 1(1) of the 1945 Act: see further below in the context of my
discussion of the Corr case. It would be on the basis that the loss of earnings
was partly caused by the tort and partly caused by the deliberate act of the
claimant in stabbing Mr Boultwood and that both were blameworthy.
B
26 If it were so held, again we do not think that it could fairly be said
that to allow the claim to succeed in part would be to appear to condone the
manslaughter. On the contrary, the apportionment would have the e›ect of
separating the responsibility of the claimant from that of the defendant and
of ensuring that the claimant only recovered for the loss of earnings for
which the defendants were truly responsible and he was not. In that event,
the claimants recovery would not be inextricably bound up with the C
manslaughter but distinct from it. We return below to the question whether
there was contributory fault on the facts.
27 However, if there was contributory fault on the facts, we do not see
why it should be regarded as contrary to principle or policy to permit the
claimant to recover damages in respect of that part of the damage for which,
on this hypothesis, the defendants are responsible. We recognise of course
D
that the rule is one of public policy. As, for example, Lord Go› put in
Tinsley v Milligan [1994] 1 AC 340, 355 (albeit in the course of a dissenting
speech): the principle is not a principle of justice; it is a principle of policy,
whose application is indiscriminate and so can lead to unfair consequences
as between the parties to litigation. We accept that that may be so but it
appears to us that, where in a particular case the problem is solved by the
application of the 1945 Act, there is no need for public policy to require a E
di›erent solution. As just stated, at any rate on the facts of this case, where
the claim is for loss of earnings, the application of the Act avoids the
conclusion that the claimants recovery is inextricably bound up with his
crime such that, if the court permits partial recovery, it will in some way be
condoning the crime.
28 Unless there is binding authority to the contrary, we would hold
F
that, where the manslaughter does not break the chain of causation or where
there is contributory fault on the part of the claimant of less than 100%, so
that the claim is not, as Beldam and Judge LJJ put it in Cross v Kirkby [2000]
CA Transcript No 321, inextricably bound up with or linked with the
criminal conduct, public policy does not prohibit recovery. In this regard we
recognise that there is (or may be) a distinction between a case like this,
where the claim is for loss of earnings and (for the reasons we have given) G
not inextricably bound up with or linked with the manslaughter, and a case
where the claimant was seeking to recover damages as a result of his
incarceration for years in a mental hospital or a prison as a result of a
sentence imposed by a criminal court. We accept, at any rate as the
authorities stand, that such a claim would be inextricably bound up with or
linked with the manslaughter and that such damages could not be recovered.
H
29 Mr Purchas relies upon two decisions of this court in support of his
submission that this claim too is contrary to public policy. They are Clunis
v Camden and Islington Health Authority [1998] QB 978 and Worrall v
British Railways Board [1999] CA Transcript No 684. Both cases were
decided before Cross v Kirkby [2000] CA Transcript No 321, in which only
1353
A Judge LJ referred to the Clunis case and no one referred to the Worrall
case. However, it is most unlikely that Beldam LJ did not have both cases
in mind because he presided and gave the leading judgment in both.
In these circumstances we would be loath to hold that the reasoning in
Cross v Kirkby, which we have considered in some detail, was inconsistent
with them.
30 In the Clunis case [1998] QB 978 the plainti›, who had a history of
B
mental disorder, was detained in a hospital under section 3 of the Mental
Health Act 1983. He was released into the community but some time later,
in a sudden and unprovoked attack, killed a man by stabbing him. He
pleaded guilty to manslaughter on the grounds of diminished responsibility
and was ordered to be detained in a secure hospital. He sued the local health
authority for damages for breach of a duty said to be owed to him on the
C basis that the responsible medical o–cer should have appreciated that he
was dangerous and given him appropriate treatment. It was said that, if she
had discharged that duty, the plainti› would not have committed
manslaughter and would not have been subject to the prolonged treatment
that he faced as a result of the hospital order made by the Crown Court.
31 In this court Beldam LJ gave the judgment of the court, which also
comprised Potter LJ and Bracewell J. It held that the judge should have
D
struck out the claim on two independent grounds, rst that of public policy
because ex turpi causa non oritur actio and, secondly that the authority
owed no actionable duty to the plainti›. In this appeal, we are of course
only concerned with the rst ground. By contrast with this case, there was
no suggestion in the Clunis case that any distinction should be drawn
between di›erent heads of damage. The court held, as was plainly the case,
E that the plainti›s claim arose out of and depended upon proof of his
commission of a criminal act: see p 987C. See also the analysis at
pp 989G—990D and the courts conclusion, at p 990E, where it said:
In the present case we consider the defendant has made out its plea
that the plainti›s claim is essentially based on his illegal act of
manslaughter; he must be taken to have known what he was doing and
F that it was wrong, notwithstanding that the degree of his culpability was
reduced by reason of mental disorder. The court ought not to allow itself
to be made an instrument to enforce obligations alleged to arise out of the
plainti›s own criminal act . . .
In the Worrall case [1999] CA Transcript No 684, Beldam LJ said that the
question in the Clunis case was whether the plainti› bore any responsibility
G for the commission of the criminal o›ence of manslaughter on which his
claim was based. He added that the court held that the plainti› retained a
degree of moral and legal responsibility for the commission of the o›ence
and accordingly public policy precluded him from recovering damages in
respect of his own criminal act.
32 As we read it, the Worrall case is an example of the application of the
same principle. It was a somewhat startling case on the facts. The plainti›s
H
case was that, as a result of an electric shock caused by his employers
negligence, he su›ered a change of personality which caused him to commit
serious sexual o›ences against two prostitutes. In spite of his defence of
alibi, he was convicted of both o›ences and sentenced to six years
imprisonment. At the trial no mention was made of the electric shock
1354
or its alleged consequences, even in connection with sentence. He was A

subsequently dismissed from his employment and remained unemployed
after his release from prison. His claim included a claim for loss of earnings
and loss of a pension. The judge struck out the whole of that part of the
claimants claim on the basis that the whole claim was consequent upon the
criminal o›ences. This court, comprising Beldam, Roch and Mummery LJJ,
dismissed the plainti›s appeal. Beldam LJ expressed his conclusion thus: B
In my view that part of the statement of claim upon which the
plainti› relied to establish the vast majority of his loss was founded upon
his commission of serious criminal o›ences for which he was fully
responsible in law. The principle that the court will not lend its aid to the
recovery of damages based upon criminal o›ences applies and the case is
indistinguishable save in immaterial respects from the Clunis case. The C
plainti›s responsibility in this case was undiminished in any respect and
I consider it would be contrary to public policy to allow him to recover
damages consequent upon the commission of those o›ences.
33 Roch LJ agreed with Beldam LJ. So too did Mummery LJ on the
public policy point, although he added that, in his opinion the plainti›s
claims were su›ered as a direct result of his crimes and not as a direct or D
foreseeable result of a breach of a duty of care owed to him by the
defendants. In the Worrall case the court rejected the submission that the
Clunis case was distinguishable. It follows that they are both authority for
the proposition that, where a claim or a head of claim depends upon the
claimants criminal act it cannot succeed on the public policy ground that
ex turpi causa non oritur actio or ex turpi causa non oritur damnum, as the E
case may be.
34 It follows, as we see it, that, on the authorities as they stand, the
claimant here cannot recover the consequences of his compulsory detention
in a hospital pursuant to an order of the Crown Court. However, as already
explained, that is not the nature of his claim. In this connection, it is
important to note that in the Worrall case [1999] CA Transcript No 684 the F
plainti› sought to advance a new point in this court which was not advanced
before the judge. It was almost the same point as is advanced here, namely
that the claim for loss of earnings, pension rights and the like were caused
by the accident (and thus the defendants negligence) and not by the
commission of the criminal o›ences or the period of imprisonment. This
court did not permit that point to be taken because it had not been taken
G
below. It follows, as we see it, that the Worrall case does not assist in
resolving the issue before us.
35 There is nothing in the Clunis case [1998] QB 978 or the Worrall
case which is inconsistent with the decision or reasoning in Cross v Kirkby
[2000] CA Transcript No 321. It follows that there is nothing in them which
is inconsistent with the proposition that a claim is not defeated by public
policy unless the claim or a head of claim is inextricably bound up with or H
linked with the criminal conduct. We have already given our reasons for
concluding that, in so far as the claimant claims loss of earnings, this is not
such a case. It follows that, on the basis of the arguments that were
addressed to us orally, we would allow the appeal.
1355
A The decision in Corr

36 It is we think helpful to have regard to the recent decision of the
House of Lords in the Corr case [2008] AC 884. The facts were that Mr Corr
sustained a serious injury at work. His physical injuries were much worse
than those of Mr Gray. He became depressed, a condition which worsened
as time went on, and ultimately, on 23 May 2002 he committed suicide
B while su›ering from an episode of severe depression. Lord Bingham of
Cornhill concisely described his mental condition when he committed
suicide, at para 5:
On the one hand, he had the capacity to manage his own a›airs. His
intellectual abilities were not a›ected. His appreciation of danger was
not lessened. He was aware of the likely consequences of jumping from a
C high building. He acted deliberately with the intention of killing himself.
He had from time to time since the accident thought of taking his own life
but had hesitated because of the e›ect on his family. He understood the
di›erence between right and wrong. He knew the nature and quality of
his acts. He did not su›er from hallucinations. It would seem clear, had
the question arisen, that his mental condition would not have met the
MNaghten test of insanity (MNaghtens Case (1843) 10 Cl & Fin 200).
D On the other hand, at the time of his death Mr Corr was severely
depressed. His depression had caused him to experience feelings of
hopelessness. These became increasingly di–cult to resist. A critical
change took place in the balance of his thinking, when he stopped
recognising these feelings of hopelessness as symptoms of his depressive
illness, and instead they came to determine his reality. At the time of
E
his suicide Mr Corr was su›ering from a disabling mental condition,
namely a severe depressive episode which impaired his capacity to make
reasoned and informed judgments about his future. It was well known
that between one in six and one in ten su›erers from severe depression kill
themselves.
37 The House unanimously held that Mr Corrs suicide was within the
F
scope of the duty which his employer owed him, that depression was a
reasonably foreseeable consequence of its breach of duty and that it was not
incumbent upon the claimant to show that suicide itself was foreseeable: see
per Lord Bingham, at paras 9—13, Lord Scott of Foscote, at paras 28—29, and
Lord Walker of Gestingthorpe, at paras 38—42. In reaching that conclusion,
Lord Bingham focused, at para 13, on Hughes v Lord Advocate [1963]
AC 837, especially per Lord Pearce, at p 857, whereas Lord Scott and Lord
G Walker focused on Page v Smith [1996] AC 155: see paras 29 and 38—41
respectively. Lord Bingham also placed some reliance on Page v Smith, at
para 7. Lord Mance and Lord Neuberger of Abbotsbury agreed but both
said that their opinion did not depend on the assumption that Page v Smith
was correct: see paras 45—46 and 53—56 respectively. We should add that
Lord Bingham said, at para 13 that, if it was necessary to show that
Mr Corrs suicide was reasonably foreseeable, the employer would have had
H
di–culty in escaping an adverse nding to that e›ect.
38 The House further held unanimously that, if there was a breach of
duty owed by the defendant to Mr Corr, the chain of causation between the
breach and Mr Corrs death was not broken by his suicide: see per Lord
Bingham, at paras 14—17, Lord Scott, at paras 25—39, Lord Walker, at paras
1356
42—43, Lord Mance, at paras 45—46 and Lord Neuberger, at para 53. It was A
further unanimously held that deliberate suicide was fault within the
meaning of the 1945 Act and thus capable of being contributory
negligence: see especially per Lord Scott, at paras 31—32, Lord Walker, at
para 44 and Lord Neuberger, at paras 59—60. Lord Bingham and Lord
Walker concluded that there should be no reduction on the facts: see paras
22—23 and 44 respectively. Lord Mance and Lord Neuberger held that B
although, given that the issue had not been debated in any detail in the courts
below, no reduction should be made on the facts, it might well be
appropriate to make a reduction in a case of suicide of the kind the House
was considering: see paras 47—52 and 57—71 respectively. Lord Scott would
have reduced the damages by 20%: see paras 32—33.
39 It might be argued on the basis of the reasoning in the Corr case that
there is no distinction in principle between that case and this case, so far as C
breach of duty, causation or remoteness is concerned. In both cases it was
reasonably foreseeable that if the defendants did not take reasonable care,
the claimant might be injured and that if he was, that injury might cause or
be PTSD. The reasoning of the House of Lords might then lead to the
conclusion that it was not necessary that it should be reasonable foreseeable
that the claimant might attack someone else, just as it held that it was not D
necessary that Mr Corrs suicide was reasonably foreseeable. It may also be
arguable that it was reasonably foreseeable that the claimants PTSD might
cause him to injure others or himself. It is not easy to see why, public policy
apart, there should be any di›erence in these respects between a man who
kills himself because of depression caused by a tort and a man who kills or
seriously injures someone else because of such depression.
40 Again the issues of causation are similar in the two cases. Thus, E
having described Mr Corrs mental state, at para 5, which we have quoted
above, Lord Bingham said, at para 16:
In the present case Mr Corrs suicide was not a voluntary, informed
decision taken by him as an adult of sound mind making and giving e›ect
to a personal decision about his future. It was the response of a man
su›ering from a severely depressive illness which impaired his capacity to F
make reasoned and informed judgments about his future, such illness
being, as is accepted, a consequence of the employers tort. It is in no way
unfair to hold the employer responsible for this dire consequence of its
breach of duty, although it could well be thought unfair to the victim not
to do so.
Lord Bingham then considered a submission that Mr Corr was not in G
MNaghten terms insane to which we return below.
41 The essence of Lord Binghams opinion on causation was his
approval, at para 16, of these paragraphs in the judgment of Sedley LJ (with
whom Ward and Wilson LJJ agreed) in this court [2007] QB 46, paras 82,
83, which Lord Bingham quoted at para 14:
H
82. To cut the chain of causation here and treat Mr Corr as
responsible for his own death would be to make an unjustied exception
to contemporary principles of causation. It would take the law back half
a century to a time when the legal and moral opprobrium attaching to
suicide placed damages for being driven to it on a par with rewarding a
1357
A person for his own crime. Today we are able to accept that people to
whom this happens do not forfeit the regard of society or the ordinary
protections of the law.
83. Once it is accepted that suicide by itself does not place a clinically
depressed individual beyond the pale of the law of negligence, the
relationship of his eventual suicide to his depression becomes a pure
question of fact. It is not a question which falls to be determined, as the
B
deputy judge in signicant measure determined it, by analogy with the
duty of care resting on a custodian. Once liability has been established
for the depression, the question in each case is whether it has been shown
that it was the depression which drove the deceased to take his own life.
On the evidence in the present case, it clearly was.
42 At paras 15 and 16, Lord Bingham concluded that the Corr case was
C
an example of such a case, in contrast with a case in which, when the victim
of a car accident took her life she made a conscious decision, there being no
evidence of disabling mental illness to lead to the conclusion that she had
an incapacity in her faculty of volition: Wright Estate v Davidson (1992)
88 DLR (4th) 698, 705. The Corr case [2008] AC 884 was di›erent because
it was shown on the evidence, as Sedley LJ put it, that it was the depression
D caused by the defendants tort that drove the deceased to take his own life.
The decision to commit suicide was not therefore an independent cause of
death but one which was itself caused by the tort, so that since, as Lord
Bingham put it, at para 15, the rationale of the principle that a novus actus
interveniens breaks the chain of causation is fairness, there was no break
in the chain of causation on the facts. It would only be fair to hold that
there was a break in the chain of causation if the suicide was independent of
E
the tort.
43 Lord Scott said much the same. He noted, at para 25 that, in
committing suicide, Mr Corr acted deliberately, aware of the consequences
and with the intention of killing himself. At para 27, Lord Scott quoted two
passages from Clerk & Lindsell on Torts, 19th ed including the statement at
para 2-78 that whatever its form, the novus actus must constitute an event
F of such impact that it obliterates the wrongdoing of the defendant.
44 Lord Scott ultimately concluded that, in spite of the fact that the
suicide was a deliberate act, it did not obliterate the wrongdoing of the
defendant. Lord Walker said much the same, at paras 42—43, where he
recognised that Mr Corr had the relevant capacity to decide what to do, that
he was not deprived of his personal autonomy and that he was not
MNaghten insane but that there was no break in the chain of causation.
G
45 It seems to us that, subject to considerations of public policy, there is
much to be said for the conclusion that the same is true here. It was the
depression su›ered by Mr Gray caused by the defendants negligence that
led him to kill, not himself, but Mr Boultwood. In these circumstances, it is
at least strongly arguable that there was no break in the chain of causation.
46 We recognise that that view is or may be contrary to that of
H Mummery LJ in the Worrall case [1999] CA Transcript No 684, where he
said that the plainti›s loss complained of
relates to loss su›ered by him as a direct result of crimes committed
by him against others, not as a direct or foreseeable result of a breach of a
duty of care owed to him by the defendant.
1358
It is far from clear that this point was argued before the court in the Worrall A
case. In any event the issue of causation was not considered in the detail in
which it was considered in the Corr case [2008] AC 884. Indeed, as pointed
out in para 34 above, the point that arises here did not arise in the Worrall
case. As we read what Mummery LJ said, he was focusing on the issue of
public policy. However that may be, as to causation, it is not easy to see why
the law should hold that there is a break in the chain of causation between a B
tort and the commission of a crime, where the evidence shows that, as Lord
Bingham put it in the context of suicide (in the passage from para 16 quoted
above), the crime is the response of a man su›ering from a severely
depressive illness which impaired his capacity to make reasoned and
informed judgments about his future, such illness being . . . a consequence of
the employers tort. It seems to us that in such a case, if it is appropriate to
C
deprive the claimant of recovery, the court should hold, not that there was a
break in the chain of causation, but that public policy requires that the claim
should fail.
47 As to contributory fault, there seems to us to be much to be said for
the conclusion that there was contributory fault on the part of the claimant
here. Such a conclusion would we think be entirely consistent with the views
of Lord Scott, Lord Mance and Lord Neuberger in the Corr case [2008] D
AC 884.
48 As to public policy, in the Corr case the House of Lords was not
considering the question whether public policy should lead to a di›erent
view in a case where a death is caused by suicide, which is of course no
longer a crime, from a case in which a death (or other injury) is caused by a
crime. At para 16, Lord Bingham said, after the passage quoted above: E
Mr Cousins submitted that on the agreed ndings Mr Corr was not, in
MNaghten terms, insane, and it is true that in some of the older
authorities a nding of insanity was regarded as necessary if a claimant
were to recover for loss attributable to suicide: see, for example, Murdoch
v British Israel World Federation (New Zealand) Inc [1942] NZLR 600,
following McFarland v Stewart (1900) 19 NZLR 22. I do not for my part F
nd these cases persuasive, for two main reasons. First, so long as suicide
remained a crime the courts were naturally reluctant to award damages
for the consequences of criminal conduct. Thus a nding of insanity,
which exculpated the deceased from criminal responsibility, removed this
obstacle. Modern changes in the law overcome the problem: there is now
no question of rewarding the consequences of criminal conduct, although G
it remains true that the more unsound the mind of the victim the less likely
it is that his suicide will be seen as a novus actus. The second reason is
that whatever the merits or demerits of the MNaghten rules in the eld of
crime, and they are much debated, there is perceived in that eld to be a
need for a clear dividing line between conduct for which a defendant may
be held criminally responsible and conduct for which he may not. In the
civil eld of tort there is no need for so blunt an instrument. Insane is H
not a term of medical art even though, in criminal cases, psychiatrists are
obliged to use it. In cases such as this, evidence may be called, as it was, to
enable the court to decide on whether the deceased was responsible and, if
so, to what extent. I agree with Sedley LJ that it would be retrograde to
1359
A bar recovery by the claimant because the deceased was not, in MNaghten
terms, insane.
49 There seems to us to be something to be said for the view that the
traditional harsh view of public policy expressed in, for example, the Clunis
case [1998] QB 978 and the Worrall case [1999] CA Transcript No 684,
should be revisited in a case in which the crime relied upon (whether relied
B upon by the claimant or the tortfeasor) was itself caused by the tort. In times
gone by, it would perhaps have been seen as inconceivable that the murder
or manslaughter of another could have been caused by a tort. However, the
facts and evidence in the Corr case [2008] AC 884 and this case, and perhaps
a more developed understanding of clinical depression, show that it is no
longer inconceivable. It is far from clear to us why the ends of justice
C
are not su–ciently served by the principles of foreseeability, causation and
contributory negligence without the need for a further principle of public
policy in such a case. It was no doubt for this reason that Auld LJ said obiter
in KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441, para 131:
Notwithstanding anything said by this court in Cluniss case, an
argument may survive that damages are recoverable in respect of tortious
D acts that have resulted in a law-abiding citizen becoming criminal.
50 We agree. However, the argument is not open in this court because
we are bound by the authorities to apply the principles in them and, in
particular, bound to apply the principle stated in Cross v Kirkby [2000]
CA Transcript No 321. As indicated above, the application of that principle
leads to the conclusion that the claimant could not recover in respect of his
E incarceration in a mental hospital pursuant to the order of the Crown Court
but, in our opinion, is not barred by public policy from recovering his loss of
earnings, if they are otherwise recoverable.
51 We would add this thought. Suppose a man su›ering from clinical
depression caused by a tort jumps o› a tall building and dies and, just before
he does so, he deliberately pushes someone else o›, who also dies. Suppose
then that both the dependants of the suicide and the dependants of the man
F who has been pushed o›, and thus killed by the suicide, take proceedings
against the tortfeasor, it is not clear why, either as a matter of foreseeability
or causation on the one hand or public policy on the other, the former should
be entitled to recover but not the latter.
52 As indicated above, at our invitation, the parties have made written
submissions on the potential questions arising from the decision and
G reasoning in the Corr case [2008] AC 884. The defendants submissions may
be summarised in this way. (i) By contrast with the depression in the Corr
case there is no evidence here that manslaughter is a reasonably foreseeable
consequence of PTSD. (ii) Whereas in the Corr case the depressive illness
drove Mr Corr to commit suicide, the PTSD did not drive the claimant here
to do so; it was merely part of the background circumstances, the direct
cause being his own decision to obtain a knife, pursue his victim and stab
H
him. (iii) The Corr case was not concerned with (and does not discuss)
criminal acts but with suicide, which is a critical distinction between that
case and this. (iv) If the claim does not fail on any of the above bases, the
claimant was guilty of contributory fault, which should be considered by the
trial judge, who would have to take into account matters of causation and
1360
blameworthiness and also whether there were other factors operating on the A
mind of the claimant independently of the accident and PTSD. Reliance is
placed on the speech of Lord Mance, at para 51.
53 By contrast, the submissions made on behalf of the claimant may be
summarised in this way. (i) The evidence shows that depressive symptoms,
including uncontrollable rage and aggression, are prominent in PTSD and
are thus reasonably foreseeable. It is not necessary to prove that the
B
precise form or result of the aggression, such as grievous bodily harm,
manslaughter or murder is itself reasonably foreseeable. Reliance is placed
upon Lord Bingham, at para 13, which it is said applies here just as it
applies to suicide. (ii) Reliance is placed upon a number of passages in the
evidence of Dr Joseph to show that the claimants PTSD was causative of
the manslaughter, including his view that it would not have taken place
but for the original accident and that the depression and PTSD, which C
Dr Joseph described as an abnormality of mind, was a highly signicant
factor which was operating at the time of the killing. Lord Binghams view
in para 16 of the Corr case quoted above applies equally to the claimant
here. It follows that there was no break in the chain of causation, even
though here, as in the Corr case, the claimant knew what he was doing
when he deliberately stabbed the victim. (iii) There is no valid distinction
D
between suicide and manslaughter for the purposes of any of the issues in
this case. (iv) As to contributory fault, the facts are so similar to those in the
Corr case that any contributory fault would be assessed at 0%. In any event,
the issue was not pleaded or raised before the judge and no evidence was
addressed to it. It should not be addressed by this court but would have to
be pleaded by the defendant and considered by the judge. We at one time
thought that the claimant conceded that the matter should now be E
determined by the judge. However, on reection, we do not now think that
that is so. We understand that the claimant wishes to argue that it is now
too late for the point to be taken.
54 The issues of foreseeability, causation and contributory fault were
not considered in any detail or at all by the judge because they were not
raised before him and the evidence did not explicitly address them, especially
F
the issue of contributory fault, which was not pleaded. Equally they were
not raised in oral argument before us. They have been brought to the fore by
the reasoning in the Corr case. We entirely accept that, for the reasons given
by both parties and, indeed, in the Corr case, we should not determine the
issue of contributory fault. If it is to be considered, it must be remitted to the
High Court for detailed consideration in the light of the medical and other
evidence. On the material available to us at present we would remit it to the G
High Court. It is true that it was not pleaded but we have no doubt that it
would have been if the decision in the Corr case had been made before the
trial. We do not think that the claimant is likely to su›er any prejudice
which cannot be compensated in costs. However, we will consider such
further submissions as the parties wish to make on this point.
55 Although we have made some preliminary observations on the
H
issues of foreseeability, causation and contributory fault above, we do not
think that we should nally determine any of them now. There is
some overlap between contributory fault and the other issues and we
have reached the conclusion that, if contributory fault is to be remitted,
rather than our deciding the other issues now, they too should be
1361
A remitted for consideration by a judge, who can of course be Flaux J if he

is available.
Conclusion
56 For these reasons we allow the appeal on the ex turpi causa point.
We will consider further submissions on the future conduct of the action.
B
Appeal allowed with costs.
Issues of foreseeability, causation and
contributory fault remitted to High
Court.
Permission to appeal refused.
C 27 October 2008. The Appeal Committee of the House of Lords (Lord

Hope of Craighead, Lord Brown of Eaton-under-Heywood and Lord
Neuberger of Abbotsbury) allowed a petition by the defendants for leave to
appeal.
SLD
D APPEAL
The defendants appealed.
The claimant cross-appealed against that part of the Court of Appeals
decision which precluded his claim for general damages.
The facts are stated in the opinions of Lord Ho›mann and Lord Rodger
of Earlsferry.
E Christopher Purchas QC and Steven Snowden (instructed by Halliwells
LLP) for the defendants.
The maxim ex turpi causa non oritur actio is founded on the public policy
that a court will not compensate a person for loss that arises from his own
illegal or criminal act. It necessarily precludes damages for the consequences
of a custodial sentence imposed by a criminal court whether pecuniary or
otherwise. This provides for consistency between the civil and criminal
F
courts and maintains the integrity of the legal system: see Askey v Golden
Wine Co Ltd [1948] 2 All ER 35; Worrall v British Railways Board
(unreported) 29 April 1999; [1999] CA Transcript No 684; Clunis v Camden
and Islington Health Authority [1998] QB 978, 989 and British Columbia v
Zastowny [2008] 1 SCR 27, paras 3, 22, 25. The principle applies
irrespective of whether it is pleaded or relied on by either of the parties: see
G Cross v Kirkby The Times, 5 April 2000; [2000] CA Transcript No 321, per
Beldam LJ. The principle also prevents a person claiming indemnity or
contribution for liability that arises out of his own criminal o›ence: see
Meah v McCreamer (No 2) [1986] 1 All ER 943.
The claimant pleaded guilty to manslaughter on the grounds of
diminished responsibility. He was sentenced to be detained in a mental
hospital under the terms of a restriction order. The nature and gravity of the
H
sentence took into account that his behaviour was in part caused by his
mental state which was in turn caused or contributed to by the rail crash.
But the medical evidence conrmed that he was responsible for his own
actions. It was not a case of insanity. The post-traumatic stress disorder
merely exacerbated his previous personality traits. The trial judge correctly
1362
Gray v Thames Trains Ltd (HL(E)) [2009] 1 AC
Argument
declined to go behind the claimants responsibility for the manslaughter and A

the penalty imposed by the criminal court. The Court of Appeals decision
that the claim for loss of earnings was independent of the manslaughter and
not a›ected by it was contrary to the known facts that the claimant had
committed manslaughter and received a custodial sentence. [Reference was
made to Jobling v Associated Dairies Ltd [1982] AC 794 and Williamson v
John I Thornycroft & Co Ltd [1940] 2 KB 658.] B
Corr v IBC Vehicles Ltd [2008] AC 884 has no relevance to the
application of the principle of ex turpi causa. In the Corr case the deceased
had committed suicide. There was no criminal o›ence and no custodial
sentence. The public policy factors which underpin ex turpi causa had no
application whatsoever. The defendants rely on the persuasive reasoning of
the New South Wales Court of Appeal in State Rail Authority of New South
Wales v Wiegold (1991) 25 NSWLR 500 and Hunter Area Health Service v C
Presland (2005) 63 NSWLR 22. They also rely on the reasoning and
approach of the Supreme Court of Canada in Hall v Hebert [1993] 2 SCR
159 in which McLachlin J emphasised the notion of preserving the integrity
of the legal system by preventing internal inconsistency between the criminal
and civil courts.
Anthony Scrivener QC and Toby Riley-Smith (instructed by Collins, D
Watford) for the claimant.
The defence of ex turpi causa is founded upon principles of public policy
(see Holman v Johnson (1775) 1 Cowp 341, 343), but neither of the two
rationales which underpin that policy todaypreservation of the integrity
of the legal system and avoidance of the perception that the civil court
condones criminal behaviourapplies here. E
Preservation of the integrity of the legal system is based on avoiding
inconsistency between the criminal and civil law. This concern is only
engaged where an award in a civil suit would allow a person to prot from
illegal or wrongful conduct or would permit evasion of a penalty prescribed
by the criminal law. The ex turpi causa doctrine is not justied where
the claim is merely for compensation for personal injuries sustained as a
consequence of the negligence of the defendant. A nding of contributory F
negligence allows the court to reduce, but not wholly deny, compensation by
reference to the criminal conduct: see Hall v Hebert [1993] 2 SCR 159, 169,
176—177, 179, 185.
In the criminal court the degree of the o›enders fault is reected in the
verdict and in the sentence. In the civil court justice is served by applying
the limitations of foreseeability, causation and contributory negligence. G
The balance between the criminal and civil law is thus maintained. The
decision in British Columbia v Zastowny [2008] 1 SCR 27 that a person
is not entitled to compensation for periods of unemployment due to
imprisonment is distinguishable as there was no plea of contributory
negligence and so no scope for the civil court to apportion responsbility.
[Reference was made to R v Birch (1989) 11 Cr App R (S) 202 and
H
R v Chambers (1983) 5 Cr App R (S) 190.]
As to avoidance of any perception arising from an award of damages to
the claimant that the civil court condones criminal behaviour, once account
has been taken of contributory negligence, damages are only awarded after
the claimants responsibility for his criminal conduct has been considered
1363
Argument
A and weighed by the civil court. The just apportionment of responsibility for
the claimants loss does not undermine the integrity of the law but allows the
court to perform its proper function. The claimant is not relying on an
immoral or illegal act to found a claim for compensation. The action will
not be founded upon an immoral or illegal act if it can be pleaded and
proved without reliance upon such an act: see Standard Chartered Bank v
B
Pakistan National Shipping Corpn (No 2) [2000] 1 Lloyds Rep 218, 232.
Jobling v Associated Dairies Ltd [1982] AC 794 is relevant to quantum,
not the doctrine of ex turpi causa.
Purchas QC replied.
The Committee took time for consideration.

C
17 June 2009. LORD PHILLIPS OF WORTH MATRAVERS
1 My Lords, I have had the advantage of reading in draft the opinions
of my noble and learned friends, Lord Ho›mann 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.
D 2 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 signicant psychiatric injury in the form of
post-traumatic stress disorder (PTSD). Under the e›ects 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
E
front of his car. The pedestrian died of his wounds. Mr Gray gave himself
up to the police.
3 Mr Gray was charged with murder but the prosecution accepted a
plea to manslaughter on the ground of diminished responsibility. On
3 March 2003 Ra›erty J ordered him to be detained in hospital pursuant to
section 37 of the Mental Health Act 1983, subject to an indenite restriction
order under section 41 of that Act. Mr Gray was detained in prison while a
F hospital placement was found and then moved to Runwell Hospital, where
he remains detained.
4 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 e›ectively came to an end when Mr Gray
G 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 e›ect of the defence of public policy, commonly formulated in
Latin as ex turpi causa non oritur actio.
5 Mr Gray advanced his claim on two bases. The rst accepted that
public policy would preclude recovery in respect of the consequences of the
H
killing of Mr Boultwood: Clunis v Camden and Islington Health Authority
[1998] QB 978 and Worrall v British Railways Board (unreported) 29 April
1999; [1999] CA Transcript No 684. Mr Gray argued that he could none the
less recover loss of earnings in respect of the period during which he was
detained pursuant to Ra›erty Js order. This was on the basis that the
1364
Lord Phillips of Worth Matravers
appellants had destroyed his earning capacity before the killing so that their A
negligence, rather than his act of manslaughter, was responsible for his loss
of earnings. The Court of Appeal, ante, p 1343, accepted this argument but,
for the reasons given by Lord Ho›mann and Lord Rodger, I consider that
they should not have done so.
6 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 B
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 Grays PTSD; (iii) the killing of
Mr Boultwood; (iv) Mr Grays conviction for manslaughter; (v) the hospital
order and Mr Grays detention.
7 Up to the stage of argument in your Lordships House it was
Mr Grays case that his act of manslaughter was the cause of the hospital C
order and his detention under it. On that premise I agree with Lord
Ho›mann 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 Ho›manns identication of
a wider and a narrower rule of public policy, applicable in this case.
8 Where I respectfully di›er from Lord Ho›mann is in respect of the D
general applicability of the following passage in para 41 of his opinion:
But the sentence imposed by the court for a criminal o›ence is usually
for a variety of purposes: punishment, treatment, reform, deterrence,
protection of the public against the possibility of further o›ences.
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 E
sentence . . . was what the criminal court regarded as appropriate to
reect the personal responsibility of the accused for the crime he has
committed
While this statement is true of the sentence imposed by Ra›erty J it will not
always be true of a hospital order imposed under section 37 of the 1983 Act.
9 In R v Drew [2003] 1 WLR 1213, when giving the considered opinion F
of the Committee, Lord Bingham of Cornhill stated at para 9 that it was
unnecessary to review the detailed statutory provisions governing the
admission of o›enders to hospital under section 37 of the 1983 Act since
their e›ect was clearly and authoritatively explained by the Court of Appeal
(Criminal Division) in R v Birch (1989) 11 Cr App R (S) 202, 210. I shall
follow Lord Binghams example by quoting extensively from the judgment
of that court, given by Mustill LJ. The rst passage, at p 210, deals with a G
hospital order under section 37 that is not accompanied by a restriction
order under section 41:
Once the o›ender 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 e›ect he passes out of the
H
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 satised when he
1365
A was admitted, are fullled. 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 o–cer. 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 12] months, he
B
cannot be recalled (section 17(5)). Another feature of the regime which
a›ects the disordered o›ender and the civil patient alike is the power of
the responsible medical o–cer to grant leave of absence from the hospital
for a particular purpose, or for a specied or indenite period of time:
subject always to a power of recall (except as mentioned above). There
are certain di›erences between the positions of the o›ender and of the
C civil patient, relating to early access to the review tribunal and to
discharge by the patients nearest relative, but these are of comparatively
modest importance. In general the o›ender 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 o›ender who has become a patient is not kept on any kind of leash by
D
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
o›ender 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 o›ender of further criminal acts.
10 Mustill LJ then added this in relation to the e›ect of a restriction
E
order, at pp 210—211:
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 a›ects the circumstances in which the patient is detained.
F
No longer is the o›ender 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 o–cer and the hospital to the Secretary of State alone
(before 30 September 1983) and now to the Secretary of State and the
G 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.
11 In a third passage, at p 215, Mustill LJ dealt with the problem facing
a sentencer where the defendant needs hospital treatment but his o›ence
merits punishment:
H
For the present purposes it is, we believe, su–cient to note that
the choice of prison as an alternative to hospital may arise in two
quite di›erent ways . . . (2) Where the sentencer considers that
notwithstanding the o›enders mental disorder there was an element of
culpability in the o›ence which merits punishment. This may happen
1366
where there is no connection between the mental disorder and the o›ence, A
or where the defendants responsibility for the o›ence is diminished but
not wholly extinguished. That the imposition of a prison sentence is
capable of being a proper exercise of discretion is shown by Morris (1961)
2 QB 237 and Gunnell (1966) 50 Cr App R 242. Nevertheless the more
recent decision Mbatha (1985) 7 Cr App R (S) 373 strongly indicates that
even where there is culpability, the right way to deal with a dangerous and
B
disordered person is to make an order under section 37 and 41.
12 In Drew [2003] 1 WLR 1213, para 13 Lord Bingham also
considered what he described as the problematic situation where neither a
sentence of imprisonment, nor a hospital order, on its own appeared
appropriate in the case of a particular o›ender and where the mutually
exclusive operation of such disposals appeared unsatisfactory. He quoted
C
from the White Paper Protecting the Public: The Governments Strategy on
Crime in England and Wales (1996) (Cm 3190), which proposed a solution
to this problem:
8.12. The Government proposes changes in the arrangements for the
remand, sentencing and subsequent management of mentally disordered
o›enders to provide greater protection for the public and to improve
D
access to e›ective medical treatment for those o›enders who need it.
The central change, if adopted, would be the provision of a hybrid order
for certain mentally disordered o›enders for whom the present form of
hospital order is unsatisfactory, particularly those who are considered to
bear a signicant degree of responsibility for their o›ences. The order
would enable the courts, in e›ect, to pass a prison sentence on an o›ender
and at the same time order his immediate admission to hospital for E
medical treatment.
8.13. The hybrid order, together with other proposals amending the
detail of the Mental Health Act 1983, would substantially increase the
exibility of arrangements for dealing with mentally disordered o›enders
at all stages from remand through to rehabilitation. In particular, it
would enable the courts to deal with some of the most di–cult cases in a
F
way which took proper account of the o›enders need for treatment;
the demands of justice; and the right of other people to be protected
from harm.
8.14. Existing sentencing arrangements for o›enders who are
mentally disordered require the court to decide either to order the
o›enders detention in hospital for treatment, or to sentence him to
imprisonment, or to make some other disposal. In some cases, an G
o›ender needs treatment in hospital but the circumstances of the o›ence
also require a xed period to be served in detention. This may be because
the o›ender is found to bear some signicant responsibility for the o›ence
notwithstanding his disorder, or because the link between the o›ending
behaviour and the mental disorder is not clear at the time of sentencing.
The hybrid disposal would be a way of enabling the requirements of
H
sentencing in such cases to be met. Under the order, an o›ender would
remain in hospital for as long as his mental condition required, but if he
recovered or was found to be untreatable during the xed period set
by the court, he would be remitted to prison. The hybrid order was
recommended for use in sentencing o›enders su›ering from psychopathic
1367
A disorder by the Department of Health and Home O–ce Working Group

on Psychopathic Disorder. The Government is considering whether it
might be made available in respect of o›enders su›ering from all types of
mental disorder currently covered by mental health legislation.
13 As Lord Bingham observed, legislative e›ect was given to this
proposal in the case of an o›ender su›ering from psychopathic disorder, by
B section 45A of the 1983 Act, inserted by section 46 of the Crime (Sentences)
Act 1997. By amendment made by section 1 of and paragraph 9 of
Schedule 1 to the Mental Health Act 2007 this provision now applies more
widely to an o›ender su›ering from a mental disorder. In respect of such
a person a court can now combine a hospital direction with a penal sentence:
see section 45A of the 1983 Act.
C
14 The comments of both Mustill LJ and Lord Bingham recognised that
a mentally disordered o›ender whose mental condition did not satisfy the
test of insanity or render him unt to plead might none the less have no
signicant responsibility for his o›ence. Furthermore, while a conviction for
an o›ence punishable with imprisonment is necessary to confer jurisdiction
on a judge to impose a hospital order under section 37, the o›ence leading to
that conviction may have no relevance to the decision to make the hospital
D order. Thus in R v Eaton [1976] Crim LR 390 a hospital order with a
restriction order unlimited as to time was made in respect of a woman with
a psychopathic disorder where her o›ence was minor criminal damage.
15 In such an extreme case, where the sentencing judge makes it clear
that the defendants o›ending behaviour has played no part in the decision
to impose the hospital order, it is strongly arguable that the hospital order
E should be treated as being a consequence of the defendants mental
condition and not of the defendants criminal act. In that event the public
policy defence of ex turpi causa would not apply. More di–cult is the
situation where it is the criminal act of the defendant that demonstrates
the need to detain the defendant both for his own treatment and for the
protection of the public, but the judge makes it clear that he does not
consider that the defendant should bear signicant personal responsibility
F for his crime. I would reserve judgment as to whether ex turpi causa applies
in either of these situations, for we did not hear full argument in relation to
them. In so doing I take the same stance as Lord Rodger.
16 In the course of his submissions to the House, counsel for Mr Gray
for the rst time submitted that the hospital order made in respect of
Mr Gray should not be treated as imposed because he had committed
G manslaughter but because he needed treatment. Such a submission had not
been advanced in the courts below and did not appear in the respondents
written case. On the contrary, it had always been Mr Grays case that the
manslaughter was the cause of his hospital order but that the respondents
were responsible for both the manslaughter and its consequences.
17 Ra›erty J did not have available the possibility of imposing a
sentence on Mr Gray that was subject to a hospital direction. In order to
H
protect the public she had a stark choice between a hospital order together
with a restriction order and a discretionary sentence of life imprisonment.
The fact that she chose the former is no indication that she did not consider
that Mr Gray had to accept signicant responsibility for his actions.
Section 41 of the 1983 Act required her to have regard to the nature of the
1368
o›ence, the antecedents of the o›ender and the risk of his committing A
further o›ences if set at large when considering whether the protection of
the public from serious harm required the imposition of a restriction order.
The horric nature of Mr Grays crime is likely to have been the most
signicant factor in leading her to conclude that a restriction order was
necessary.
18 Flaux J held, on the basis of the evidence of a psychiatrist who had
B
examined Mr Gray immediately prior to the manslaughter that it could not
be said that, on a balance of probabilities, the claimant would have been
admitted to or detained in a psychiatric hospital if he had not committed
manslaughter. That nding has not been challenged. It is conclusive of the
causative link between the manslaughter and the hospital order.
19 Subject to these observations I agree with the reasoning of Lord
Ho›mann, as well as that of Lord Rodger, and like them would allow this C
appeal and restore the order of Flaux J.
LORD HOFFMANN
20 My Lords, on 5 October 1999 a three-car Turbo Train operated
by Thames Trains collided with a First Great Western High Speed Train
approaching Paddington Station. 31 people were killed and over 500
injured. The accident was caused by the negligence of employees of Thames D
Trains and Railtrack plc (now Network Rail Infrastructure Ltd), who are
appellants before your Lordships House.
21 The respondent Mr Gray was travelling in the Turbo Train. He was
a 39-year-old local authority employee who had led a relatively uneventful
life. He sustained only minor physical injuries but the experience caused
post-traumatic stress disorder and depression. On 19 August 2001, when he E
was receiving medication and treatment to relieve this condition, he became
involved in an altercation with a drunken pedestrian who stepped into the
path of his car. When the incident was over, Mr Gray drove to the nearby
house of his girlfriends parents, took a knife from a drawer, drove o› in
pursuit of the pedestrian, found him and stabbed him to death.
22 Mr Gray was charged with murder and remanded in custody. At the
F
trial in the Crown Court at Chelmsford on 22 April 2002, the Crown
accepted a plea of guilty to manslaughter on the grounds of diminished
responsibility caused by post-traumatic stress disorder. He was sentenced to
be detained in hospital pursuant to section 37 of the Mental Health Act 1983
with an indenite restriction order under section 41. After a period of
detention in prison, because no hospital accommodation was available, he
was moved to Runwell Hospital in Essex, where he remains. G
23 On 17 August 2005 Mr Gray commenced an action for negligence
against the appellants. In his schedule of special damage he claimed loss of
earnings until the date of trial and continuing. For the period between the
railway accident and the killing, he was from time to time employed and
claims the di›erence between what he actually earned and what he would
have earned had he continued in his previous occupation. For the period
H
during which he has been detained after the killing, he claims the whole of
what he would have earned in his previous occupation. The claim for future
loss is based on the assumption that after release from hospital he is unlikely
to nd employment. He also claims general damages for his detention,
conviction, feelings of guilt and remorse and damage to reputation and an
1369
Lord Hoffmann
A indemnity against any claims which might be brought by dependants of the

dead pedestrian.
24 When the action came before Flaux J for trial, counsel invited the
judge to decide whether the claim for Mr Grays loss of earnings while
he was detained in prison or the hospital and the general damages
for the consequences of the killing were irrecoverable by reason of a rule
of law, based on public policy, which prevents someone from obtaining
B
compensation for the consequences of his own criminal act. That seems to
me the most accurate way of putting the question, but no formal preliminary
issue was directed to be tried and both counsel and the judge used di›erent
language to express it. The judge said that it was whether the claimant
was precluded from recovering such losses by application of the principle
ex turpi causa non oritur actio and the agreed statement of facts and issues
C says that it is whether such recovery is precluded by the principle of ex turpi
causa. Neither formulation attempted to dene what, in the context of this
case, the principle is.
25 The judge decided that there is the rule of law for which the
appellants contend and that it precludes recovery for both loss of earnings
and general damages after and in consequence of the killing. The Court of
Appeal (Sir Anthony Clarke MR, Tuckey and Smith LJJ) ante, p 1343 said
D
that they were bound by authority to hold that it precluded the claim for
general damages but not for loss of earnings. Accordingly they allowed the
appeal on this point, but remitted to the judge what they called the issue of
causation, which they said had not been considered in either court.
26 The appellants appeal to your Lordships House against the part of
the order of the Court of Appeal which reversed the judge and Mr Gray
E cross-appeals against the part which a–rmed him.
27 My Lords, the question in this case is in my opinion whether the
intervention of Mr Grays criminal act in the causal relationship between the
defendants breaches of duty and the damage of which he complains
prevents him from recovering that part of his loss caused by the criminal act.
The facts were clearly established by the evidence and the verdict at the trial.
On the one hand, but for the accident and the stress disorder which it caused,
F
Mr Gray would not have killed and would therefore not have su›ered
the consequences for which he seeks compensation. On the other hand, the
killing was a voluntary and deliberate act. The stress disorder diminished
Mr Grays responsibility but did not extinguish it. By reason of his own
acknowledged responsibility, Mr Gray committed the serious crime of
manslaughter and made himself liable to the sentence of the court. The
G question is whether these features of the causal relationship between the
injury and the damage are such as to prevent Mr Gray from recovering.
28 It is not su–cient to exclude liability that the immediate cause of the
damage was the deliberate act of the claimant himself. Although in general a
defendant will not be liable for damage of which the immediate cause was
the deliberate act of the claimant or a third party, that principle does not
ordinarily apply when the claimant or third partys act was itself a
H
consequence of the defendants breach of duty. So in Corr v IBC Vehicles
Ltd [2008] AC 884 an employer whose negligence had caused post-
traumatic stress disorder to a workman was held liable to his dependants
for his subsequent death by suicide. Although the immediate cause of the
workmans death was his own voluntary and deliberate act, the state of
1370
Lord Hoffmann
mind in which he had taken his own life had been caused by the employers A
breach of duty. In such a case the damages may be reduced, as in Reeves v
Comr of Police of the Metropolis [2000] 1 AC 360, but the defendants
liability is not excluded.
29 It must follow from Corrs case that the mere fact that the killing was
Mr Grays own voluntary and deliberate act is not in itself a reason for
excluding the defendants liability. Nor do the appellants say that it is.
B
Their principal argument invokes a special rule of public policy. In its wider
form, it is that you cannot recover compensation for loss which you have
su›ered in consequence of your own criminal act. In its narrower and more
specic form, it is that you cannot recover for damage which ows from
loss of liberty, a ne or other punishment lawfully imposed upon you in
consequence of your own unlawful act. In such a case it is the law which, as
a matter of penal policy, causes the damage and it would be inconsistent for C
the law to require you to be compensated for that damage.
30 Is there such a rule? The appellants say that there is, and that it is
one aspect of a wider principle that ex turpi causa non oritur actio (or, as
Lord Manseld said in Holman v Johnson (1775) 1 Cowp 341, 343, ex dolo
malo non oritur actio). This tag has been invoked to deny a remedy in a wide
variety of situations and a good deal of time was spent in argument
D
examining diverse cases and discussing whether the conditions under which
the courts had held the maxim applicable in some other kind of case were
satised in this one. For example, in cases about rights of property, it has
been said that a claimant will fail on grounds of illegality only if his claim
requires him to rely upon or plead an illegal act: Tinsley v Milligan [1994]
1 AC 340. So Mr Scrivener QC, who appeared for Mr Gray, said that his
clients action was founded upon the defendants act of negligence and not E
upon the unlawful killing. That of course is true; if the defendants had not
been negligent, or the damage had no connection with the train crash which
could be described as causal, the claim would not have got past the starting
post. But that is not the point; in this kind of case, the question is whether
recovery is excluded because the immediate cause of the damage was the act
of manslaughter, which resulted in the sentence of the court. Likewise, there
F
was an examination of the pleadings to discover whether Mr Gray had been
obliged to plead his unlawful act, Mr Purchas QC (who appeared for the
appellants) saying that he had and Mr Scrivener saying that he had not.
Again, the pleadings seem to me to have nothing to do with whether there is
the rule of law for which the appellants contend. As a result, I did not nd
any of this discussion very helpful. The maxim ex turpi causa expresses not
so much a principle as a policy. Furthermore, that policy is not based upon a G
single justication but on a group of reasons, which vary in di›erent
situations. For example, as Beldam LJ pointed out in in Cross v Kirkby
[2000] CA Transcript No 321, para 74, in cases in which the court is
concerned with the application of the maxim to property or contractual
rights between two people who were both parties to an unlawful
transaction: it faces the dilemma that by denying relief on the ground of
H
illegality to one party, it appears to confer an unjustied benet illegally
obtained on the other.
31 In cases of that kind, the courts have evolved varying rules to deal
with the dilemma: compare the approach of the House of Lords in Tinsley v
Milligan [1994] 1 AC 340 with that of the High Court of Australia in
1371
Lord Hoffmann
A Nelson v Nelson (1995) 184 CLR 538. But the problem to which Beldam LJ
drew attention does not arise in this case. The questions of fairness and
policy are di›erent and the content of the rule is di›erent. One cannot
simply extrapolate rules applicable to a di›erent kind of situation.
32 The particular rule for which the appellants contend may, as I said,
be stated in a wider or a narrow form. The wider and simpler version is
B
that which was applied by Flaux J: you cannot recover for damage which is
the consequence of your own criminal act. In its narrower form, it is that
you cannot recover for damage which is the consequence of a sentence
imposed upon you for a criminal act. I make this distinction between the
wider and narrower version of the rule because there is a particular
justication for the narrower rule which does not necessarily apply to the
wider version.
C 33 I shall deal rst with the narrower version, which was stated in
general terms by Denning J in Askey v Golden Wine Co Ltd [1948] 2 All
ER 35, 38:
It is, I think, a principle of our law that the punishment inicted by a
criminal court is personal to the o›ender, and that the civil courts will not
entertain an action by the o›ender to recover an indemnity against the
D consequences of that punishment.
34 The leading English authority is the decision of the Court of Appeal
in Clunis v Camden and Islington Health Authority [1998] QB 978, in
which the plainti› had been detained in hospital for treatment of a mental
disorder. On 24 September 1992 the hospital discharged him and on
17 December 1992 he stabbed a man to death. He pleaded guilty to
E manslaughter on the grounds of diminished responsibility and was
sentenced, as in this case, to be detained in hospital pursuant to section 37
of the Mental Health Act 1983 with an indenite restriction order under
section 41.
35 The plainti› sued the health authority, alleging that it had been
negligent in discharging him and not providing adequate after care and
F claiming damages for his loss of liberty. The health authority applied to
strike out the action on the ground that, even assuming that it had been
negligent and that the plainti› would not otherwise have committed
manslaughter, damages could not be recovered for the consequences of the
plainti›s own unlawful act. In other words, the health authority relied
upon the wider version of the rule. Beldam LJ, who gave the judgment of the
court, accepted this submission. He said, at pp 989—990:
G
In the present case the plainti› has been convicted of a serious
criminal o›ence. In such a case public policy would in our judgment
preclude the court from entertaining the plainti›s claim unless it could be
said that he did not know the nature and quality of his act or that what he
was doing was wrong. The o›ence of murder was reduced to one of
manslaughter by reason of the plainti›s mental disorder but his mental
H
state did not justify a verdict of not guilty by reason of insanity.
Consequently, though his responsibility for killing Mr Zito is diminished,
he must be taken to have known what he was doing and that it was
wrong. A plea of diminished responsibility accepts that the accuseds
mental responsibility is substantially impaired but it does not remove
1372
Lord Hoffmann
liability for his criminal act . . . The court ought not to allow itself to be A
made an instrument to enforce obligations alleged to arise out of the
plainti›s own criminal act and we would therefore allow the appeal on
this ground.
36 Cluniss case was followed by the Court of Appeal in Worrall v
British Railways Board [1999] CA Transcript No 684 in which the plainti›
alleged that an injury which he had su›ered as a result of his employers B
negligence had changed his personality. As a result, he had on two occasions
committed sexual assaults on prostitutes, for which o›ences he had been
sentenced to imprisonment for six years. He claimed loss of earnings while
in prison and thereafter. The Court of Appeal struck out this claim.
Mummery LJ said:
It would be inconsistent with his criminal conviction to attribute to C
the negligent defendant in this action any legal responsibility for the
nancial consequences of crimes which he has been found guilty of having
deliberately committed.
37 The reasoning of Mummery LJ reects the narrower version of the
rule. The inconsistency is between the criminal law, which authorizes the
damage su›ered by the plainti› in the form of loss of liberty because of his D
own personal responsibility for the crimes he committed, and the claim that
the civil law should require someone else to compensate him for that loss of
liberty. But this reasoning is not applicable to damage which a claimant may
su›er as a result of his own criminal act but which is not inicted by the
criminal law, such as injury which he may su›er in the course of some
criminal activity. This kind of case, of which Vellino v Chief Constable of E
the Greater Manchester Police [2002] 1 WLR 218 is a good example, raises
somewhat di›erent issues to which I shall return when I discuss the wider
form of the rule.
38 The Clunis decision was approved by the Law Commission in its
Consultation Paper The Illegality Defence in Tort (2001) (No 160) on
the same narrow ground as that of Mummery LJ in Worralls case, at
para 4.100: F
Clunis v Camden and Islington Heath Authority . . . seems entirely

justiable if the rationale of consistency is accepted: it would be quite
inconsistent to imprison or detain someone on the grounds that he was
responsible for a serious o›ence and then to compensate him for the
detention.
G
39 The narrower rule, based on inconsistency, has the support of high
authority in the Commonwealth. In British Columbia v Zastowny [2008]
1 SCR 27 the plainti› was a drug addict and petty criminal who had spent
most of his life in prison for various o›ences. While in prison at the age
of 18 he had twice been sexually assaulted by a prison o–cer and the court
found that this experience has exacerbated his drug addiction and the
H
criminal conduct which it caused. He sued the Provincial Government as
vicariously liable for the assaults, claiming damages for (among other
things) loss of earnings during the subsequent years he had spent in prison.
The Supreme Court held that such damages were not recoverable.
Rothstein J said, at para 22:
1373
Lord Hoffmann
A Zastownys wage loss while incarcerated is occasioned by the illegal

acts for which he was convicted and sentenced to serve time. In my view,
therefore, the ex turpi doctrine bars Zastowny from recovering damages
for time spent in prison because such an award would introduce an
inconsistency in the fabric of law. This is because such an award would
be, as McLachlin J described in Hall v Hebert [1993] 2 SCR 159, 178,
B
giving with one hand what it takes away with the other. When a person
receives a criminal sanction, he or she is subject to a criminal penalty as
well as the civil consequences that are the natural result of the criminal
sanction. The consequences of imprisonment include wage loss.
40 Similarly in State Rail Authority of New South Wales v Wiegold
(1991) 25 NSWLR 500 the plainti› was seriously injured in an industrial
C
accident caused by the defendants negligence. For some months he received
payments of workers compensation but when these ceased he took to
supplementing his income by growing and selling marijuana. This was a
criminal o›ence for which he was convicted and served some eight months
imprisonment. He also lost his employment. He claimed compensation for
loss of earnings while in prison and afterwards on the ground that it was a
consequence of the impecuniosity caused by the accident. By a majority
D (Samuels and Handley JJA, Kirby P dissenting) this damage was held to be
irrecoverable. Samuels JA said, at p 514:
If the plainti› has been convicted and sentenced for a crime, it means
that the criminal law has taken him to be responsible for his actions, and
has imposed an appropriate penalty. He or she should therefore bear the
consequences of the punishment, both direct and indirect. If the law of
E negligence were to say, in e›ect, that the o›ender was not responsible for
his actions and should be compensated by the tortfeasor, it would set the
determination of the criminal court at nought. It would generate the sort
of clash between civil and criminal law that is apt to bring the law into
disrepute.
41 The narrower rule is thus well established and the only cases in
F which it has been questioned are those in which some judges have felt that it
was hard on the plainti› because his conduct had not been as blameworthy
as all that. Perhaps an extreme example is the dissent of Kirby P in State Rail
Authority of New South Wales v Wiegold 25 NSWLR 500, which appears to
have been on the ground that there was no single view in the Australian
community concerning the moral disapprobation of the respondents
G conduct in cultivating Indian hemp: see p 505. Likewise it has been
submitted in this case that the sentence of detention in a hospital reected
the fact that Mr Gray was not really being punished but detained for his own
good to enable him to be treated for post-traumatic stress disorder. But the
sentence imposed by the court for a criminal o›ence is usually for a variety
of purposes: punishment, treatment, reform, deterrence, protection of the
public against the possibility of further o›ences. It would be impossible to
H
make distinctions on the basis of what appeared to be its predominant
purpose. In my view it must be assumed that the sentence (in this case, the
restriction order) was what the criminal court regarded as appropriate to
reect the personal responsibility of the accused for the crime he had
committed. As one commentator has said Tort law has enough on its plate
1374
Lord Hoffmann
without having to play the criminal laws conscience: see EK Banakas A

[1985] CLJ 195, 197. This was plainly the view of the Court of Appeal in the
Clunis case [1998] QB 978, in which the plainti› had also been sentenced to
detention in a hospital. I agree.
42 It should be noticed that in Hunter Area Health Service v Presland
(2005) 63 NSWLR 22 the New South Wales Court of Appeal (again by a
majority: Sheller and Santow JJA, Spigelman CJ dissenting) went even
B
further and applied the rule when the plainti›, who had been negligently
discharged from a psychiatric hospital, was acquitted of murdering a
woman six hours later on the ground of mental illness but ordered to be
detained in strict custody as a mental patient. There are dicta (for example,
in the passage I have quoted from Cluniss case [1998] QB 978, 989) which
suggest that the rule does not apply when the plainti›, by reason of insanity,
is not responsible for his actions. But the majority regarded compensation C
even in such a case as contrary to public policy. Sheller JA made the
pertinent observation, at para 300, that if the rule did not apply and the
plainti› had killed the negligent psychiatrist who discharged him, the latters
estate would have been liable to pay the plainti› compensation for his
consequent detention. This case, which Sheller JA, at para 294, described as
unusual if not unique raises an interesting question about the limits of the
D
rule which it is not necessary to decide for the purposes of this appeal.
43 The Court of Appeal rightly held that it was bound by the decision in
Cluniss case to apply the rule and reject the claim for damage su›ered in
consequence of the criminal courts sentence of detention. They did so with
regret. Sir Anthony Clarke MR, giving the judgment of the court, said, ante,
para 49:
E
There seems to us to be something to be said for the view that the
traditional harsh view of public policy expressed in, for example, the
Clunis case [1998] QB 978 and the Worrall case [1999] CA Transcript
No 684, should be revisited in a case in which the crime relied upon
(whether relied upon by the claimant or the tortfeasor) was itself caused
by the tort. In times gone by, it would perhaps have been seen as
inconceivable that the murder or manslaughter of another could have F
been caused by a tort. However, the facts and evidence in the Corr
case [2008] AC 884 and this case, and perhaps a more developed
understanding of clinical depression, show that it is no longer
inconceivable. It is far from clear to us why the ends of justice are not
su–ciently served by the principles of foreseeability, causation and
contributory negligence without the need for a further principle of public
G
policy in such a case.
44 This argument treats the whole question as being whether the crime
can be said to have been caused by the tort. As I have said, there is no
dispute that there was a causal connection between the tort and the killing.
The evidence which the judge accepted was but for the tort, Mr Gray would
not have killed. But the rule of public policy invoked in this case is not based
H
upon some primitive psychology which deems mental stress to be incapable
of having a connection with subsequent criminal acts. As Hunter Area
Health Service v Presland 63 NSWLR 22 shows, it may reect more than
one facet of public policy, but it is su–cient in the present case to say that the
case against compensating Mr Gray for his loss of liberty is based upon the
1375
Lord Hoffmann
A inconsistency of requiring someone to be compensated for a sentence

imposed because of his own personal responsibility for a criminal act. The
Court of Appeal said nothing about this aspect of the matter.
45 The Court of Appeal, ante, para 51 produced an imaginary example
which appeared to them to reveal an anomaly in the rule stated in Cluniss
case:
B Suppose a man su›ering from clinical depression caused by a tort
jumps o› a tall building and dies and, just before he does so, he
deliberately pushes someone else o›, who also dies. Suppose then that
both the dependants of the suicide and the dependants of the man who
has been pushed o›, and thus killed by the suicide, take proceedings
against the tortfeasor, it is not clear why, either as a matter of
foreseeability or causation on the one hand or public policy on the other,
C
the former should be entitled to recover but not the latter.
46 I nd this example puzzling. There seems to me no reason of public
policy why the dependants of the man pushed o› the building should not
recover damages against the tortfeasor if (as the example assumes) there was
a causal connection between the tort and his death and it is regarded as
having been a foreseeable consequence. The dependants are not seeking
D
compensation for a consequence of the victims own crime, still less for the
consequence of a sentence imposed for that crime. The victim did not
commit any crime at all. As for the claim by the dependants of the suicide,
there might until Corrs case [2008] AC 884 have been some doubt about
whether they could recover, but that has now been settled. So I cannot see
any anomaly. It seems to me to illustrate the fact that the Court of Appeal
E took the rule in Cluniss case to be based upon some eccentric view of
causation rather than public policy.
47 Despite holding that the rule applied, the Court of Appeal said that
Mr Gray was entitled to compensation for loss of earnings after his arrest
for the killing. They said, at para 20, that the question was whether the
relevant loss is inextricably linked with the claimants illegal act and came
to the conclusion, at para 22, that it was not:
F
The claimants case is simply that he has su›ered a loss because, but
for the tort, he would have earned money both before and after
19 [August] 2001 and that he is therefore entitled to recover the whole
of his loss of earnings from the defendants. The manslaughter is not
inextricably bound up with that claim.
G 48 I am afraid that I do not understand this either. Mr Gray was unable
to earn money after 19 August 2001 because he was detained; at rst
in police custody, then in prison and then in hospital. He was detained
because he had committed manslaughter. Stripped of the metaphor of the
inextricable link, the question is whether his act of manslaughter caused his
inability to earn. Either way, the answer seems to me to be plain. He was
arrested and detained because he had committed manslaughter. He was
H
sentenced to be detained because he had committed manslaughter. The
causation is clear enough and it is hard to think of a more inextricable link.
49 It is true that even if Mr Gray had not committed manslaughter,
his earning capacity would have been impaired by the post-traumatic
stress disorder caused by the defendants negligence. But liability on this
1376
Lord Hoffmann
counter-factual basis is in my opinion precluded by the decision of this A

House in Jobling v Associated Dairies Ltd [1982] AC 794. In that case, the
plainti› su›ered an injury caused by his employers breach of statutory duty.
It caused him partial disablement which reduced his earning capacity. Three
years later he was found to be su›ering from unrelated illness which was
wholly disabling. The question was whether he could claim for the
disablement which hypothetically he would have continued to su›er if it had
B
not been overtaken by the e›ects of the supervening illness. The answer was
that he could not. The fact that he would in any event have been disabled
from earning could not be disregarded. Likewise in this case, in assessing the
damages for the e›ect of the stress disorder upon Mr Grays earning
capacity, the fact that he would have been unable to earn anything after
arrest because he had committed manslaughter cannot be disregarded.
50 My Lords, that is in my opinion su–cient to dispose of most of the C
claims which are the subject of this appeal. Mr Grays claims for loss of
earnings after his arrest and for general damages for his detention,
conviction and damage to reputation are all claims for damage caused by the
lawful sentence imposed upon him for manslaughter and therefore fall
within the narrower version of the rule which I would invite your Lordships
to a–rm. But there are some additional claims which may be more di–cult
D
to bring within this rule, such as the claim for an indemnity against any
claims which might be brought by dependants of the dead pedestrian and the
claim for general damages for feelings of guilt and remorse consequent
upon the killing. Neither of these was a consequence of the sentence of the
criminal court.
51 I must therefore examine a wider version of the rule, which was
applied by Flaux J. This has the support of the reasoning of the Court of E
Appeal in Cluniss case [1998] QB 978 as well as other authorities. It di›ers
from the narrower version in at least two respects: rst, it cannot, as it seems
to me, be justied on the grounds of inconsistency in the same way as the
narrower rule. Instead, the wider rule has to be justied on the ground that
it is o›ensive to public notions of the fair distribution of resources that a
claimant should be compensated (usually out of public funds) for the
F
consequences of his own criminal conduct. Secondly, the wider rule may
raise problems of causation which cannot arise in connection with the
narrower rule. The sentence of the court is plainly a consequence of the
criminality for which the claimant was responsible. But other forms of
damage may give rise to questions about whether they can properly be said
to have been caused by his criminal conduct.
52 The wider principle was applied by the Court of Appeal in Vellino v G
Chief Constable of the Greater Manchester Police [2002] 1 WLR 218. The
claimant was injured in consequence of jumping from a second-oor
window to escape from the custody of the police. He sued the police for
damages, claiming that they had not taken reasonable care to prevent him
from escaping. Attempting to escape from lawful custody is a criminal
o›ence. The Court of Appeal (Schiemann LJ and Sir Murray Stuart-Smith;
H
Sedley LJ dissenting) held that, assuming the police to have been negligent,
recovery was precluded because the injury was the consequence of the
plainti›s unlawful act.
53 This decision seems to me based upon sound common sense.
The question, as suggested in the dissenting judgment of Sedley LJ, is how
1377
Lord Hoffmann
A the case should be distinguished from one in which the injury is a

consequence of the plainti›s unlawful act only in the sense that it would not
have happened if he had not been committing an unlawful act. An extreme
example would be the car which is damaged while unlawfully parked.
Sir Murray Stuart-Smith, at para 70, described the distinction:
The operation of the principle arises where the claimants claim is
B founded upon his own criminal or immoral act. The facts which give rise
to the claim must be inextricably linked with the criminal activity. It is
not su–cient if the criminal activity merely gives occasion for tortious
conduct of the defendant.
54 This distinction, between causing something and merely providing
the occasion for someone else to cause something, is one with which we are
C very familiar in the law of torts. It is the same principle by which the law
normally holds that even though damage would not have occurred but for a
tortious act, the defendant is not liable if the immediate cause was the
deliberate act of another individual. Examples of cases falling on one side of
the line or the other are given in the judgment of Judge LJ in Cross v Kirkby
[2000] CA Transcript No 321. It was Judge LJ, at para 103, who formulated
D
the test of inextricably linked which was afterwards adopted by Sir Murray
Stuart-Smith in Vellino v Chief Constable of the Greater Manchester Police
[2002] 1 WLR 218. Other expressions which he approved, at paras 100 and
104, were an integral part or a necessarily direct consequence of the
unlawful act (Rougier J: see Revill v Newbery [1996] QB 567, 571) and
arises directly ex turpi causa: Bingham LJ in Saunders v Edwards [1987]
1 WLR 1116, 1134. It might be better to avoid metaphors like inextricably
E linked or integral part and to treat the question as simply one of causation.
Can one say that, although the damage would not have happened but for the
tortious conduct of the defendant, it was caused by the criminal act of the
claimant? (Vellino v Chief Constable of the Greater Manchester Police
[2002] 1 WLR 218). Or is the position that although the damage would not
have happened without the criminal act of the claimant, it was caused by the
F tortious act of the defendant? (Revill v Newbery [1996] QB 567).
55 However the test is expressed, the wider rule seems to me to cover
the remaining heads of damage in this case. Mr Grays liability to
compensate the dependants of the dead pedestrian was an immediate
inextricable consequence of his having intentionally killed him. The same
is true of his feelings of guilt and remorse. I therefore think that Flaux J was
right and I would allow the appeal and restore his judgment.
G
LORD SCOTT OF FOSCOTE
56 My Lords, I have had the advantage of reading in draft the opinions
on this appeal of my noble and learned friends, Lord Ho›mann and Lord
Rodger of Earlsferry, and nd myself wholly convinced by the reasons given
by my noble and learned friends for their conclusion that this appeal should
H
be allowed. There is nothing I can usefully add to those reasons and I, too,
would allow this appeal.
LORD RODGER OF EARLSFERRY
57 My Lords, up until October 1999 Mr Kerrie Gray led a perfectly
ordinary life: he was in regular employment, was in a long-term relationship
1 AC 200948
1378
Lord Rodger of Earlsferry
with a partner and had no history of violent behaviour. All that changed A
when, on 5 October 1999, he was injured in the Ladbroke Grove rail crash.
His physical injuries were not serious, but he developed post-traumatic
stress disorder (PTSD), which led to depression and to a signicant change
in his personality. He became withdrawn, was liable to angry outbursts and
shunned physical contactwhich, naturally, put a strain on his relationship
with his partner. He began drinking heavily. From the middle of 2000 he B
was receiving psychiatric treatment. Although he had returned to work
in December 1999, his attendance became irregular, due to various
manifestations of PTSD. He changed jobs. During 2001 he found coping
with work increasingly di–cult. He was absent for periods in May and June.
On 13 August he failed to return to work after a period of authorised
absence because of an infection.
58 On 19 August 2001 things got dramatically worse. Mr Gray, who C
had been drinking, was driving along Calcutta Road in Tilbury when a
Mr Boultwood, who was drunk, stumbled into the roadway, causing
Mr Gray to have to stop. Mr Boultwood then punched the windows of the car
and Mr Gray got out. A scu´e ensued, which some bystanders brought to an
end. Mr Gray then drove to the home of his partners parents, took a knife,
and drove back to look for Mr Boultwood. When he found him, Mr Gray D
grabbed him by the throat and stabbed him several times. Mr Boultwood
died the following day. Mr Gray gave himself up to the police.
59 Mr Gray was originally charged with murder, but on 22 April 2002
the Crown accepted his plea of diminished responsibility on the ground that
he had been su›ering from a serious psychological disorder, viz, PTSD, at
the time of the killing. While the House has been supplied with no detailed
E
information about the criminal proceedings, we can infer that, following
Mr Grays plea, the judge made an interim order for his detention under
section 38 of the Mental Health Act 1983. Moreover, we know that on
4 July 2002 he was admitted to Runwell Hospital and that on 3 March
2003, in the Crown Court at Wood Green, Ra›erty J made an order for his
detention in hospital under section 37 of the 1983 Act, with a restriction
order under section 41. Both orders remain in force. F
60 From 20 August 2001 until today, therefore, Mr Gray has either
been in prison or in Runwell Hospital and so has not been in a position to
work.
61 In August 2005 Mr Gray raised the present proceedings against
Thames Trains Ltd and Network Rail Infrastructure Ltd (formerly known as
Railtrack plc) for damages for the loss which he had su›ered as a result of his G
injuries in the rail crash. They admitted liability but disputed various aspects
of his claim for damages. In particular, in their amended defence, they relied
on the maxim of law which states that a claimant cannot base a cause of
action or head of claim upon his own wrong doing (ex turpi causa).
Although the point was expressed generally in this way in the defence, by the
time of the trial before Flaux J the main dispute concerned the claim for loss
of earnings after 19 August 2001. At the outset of the trial, counsel agreed H
that the judge should decide the legal issue as to whether the claimants claim
for loss of earnings, during the time he was in prison or in hospital as a result
of committing manslaughter, was precluded on the ground of public policy
summed up in the maxim ex turpi causa non oritur actio. Flaux J held that it
1379
A was; the Court of Appeal that it was not. The defendants appeal to this
House.
62 Before the House the defendants continued to ght under the banner
ex turpi causa non oritur actioor on a particular application of the maxim.
Not surprisingly, therefore, the focus of the discussion in the judgments
below, and of counsels submissions to the appellate committee, tended to be
on the application of that maxim. But Mr Scrivener QC was surely right to
B
this extent, at least: there was nothing unlawful or even base or immoral
about the circumstances giving rise to the claimants right of action against
the defendants. That right arose on 5 October 1999 when, as a result of their
admitted negligence, he was injured in the Ladbroke Grove crash. Although
Mr Gray waited until August 2005 before starting proceedings, at that
date his right of action was precisely the same lawful right of action as
C had accrued to him when the accident occurred. So the defendants real
objection cannot be to the lawfulness of the action as such. Rather, they
object that the particular head of claim for loss of earnings after 19 August
2001 is precluded by the working of the ex turpi causa doctrine.
63 This case is therefore completely di›erent from cases, such as
National Coal Board v England [1954] AC 403 or Cross v Kirkby The Times
5 April 2000; [2000] CA Transcript No 321 (much relied on by the Court of
D
Appeal), where the argument is that, at the time when he was injured, the
claimant was engaged in an unlawful activity and so the policy of the law
should be to refuse him a right of action for any injuries sustained in those
circumstances. The maxim ex turpi causa non oritur actio is as good a way
as any of identifying the policy which the court is asked to apply in those
circumstances. And, of course, in such cases questions can arise about the
E exact scope of the maxim. In the present (very di›erent) case, however,
Mr Scrivener appeared to advance Mr Grays claim on two bases. In my
view the maxim is relevant to the rst, but may tend to divert attention from
the true nature of the alternative version of the claim and of the defendants
response to it.
64 First, the claimant alleges that the defendants negligence caused him
to develop psychological problems, which in turn led to him committing
F
manslaughter, and so being detained in Runwell Hospital under the
1983 Act, and losing earnings as a result. In my view a claim of that kind
undoubtedly falls foul of the ex turpi causa maxim since the claimant is
asking the defendant to compensate him for the consequences of his own
deliberate criminal act in killing Mr Boultwood.
65 Admittedly, such a claim succeeded in Meah v McCreamer [1985]
G 1 All ER 367, but Woolf J specically recorded, at p 371J, that counsel for
the defendant had not advanced a public policy argument against the claim.
As the Court of Appeal held in Clunis v Camden and Islington Health
Authority [1998] QB 978, 990C, Woolf Js decision cannot accordingly be
regarded as authoritative on the issue.
66 The decision of the Court of Appeal in Clunis was indeed to the
opposite e›ect. The plainti›, who had a history of mental disorder,
H
was discharged from hospital. After his discharge, he failed to attend
appointments arranged for him and, within two months, he stabbed a
man to death in a sudden and unprovoked attack. He pleaded guilty to
manslaughter on the ground of diminished responsibility and was ordered to
be detained in a secure hospital. He then sued the health authority for
1380
damages on the ground that he would not have killed the man and so would A
not have been subject to prolonged detention, if the authority had not
negligently failed to treat him with reasonable professional care and skill
and if his responsible medical o–cer had not failed to arrange a mental
health assessment in time. The Court of Appeal struck out his claim.
Beldam LJ summarised the decision of the court in this way, at p 990:
In the present case we consider the defendant has made out its plea B
that the plainti›s claim is essentially based on his illegal act of
manslaughter; he must be taken to have known what he was doing and
that it was wrong, notwithstanding that the degree of his culpability was
reduced by reason of mental disorder. The court ought not to allow itself
to be made an instrument to enforce obligations alleged to arise out of the
plainti›s own criminal act . . . C
In its consultation paper on The Illegality Defence in Tort (2001),
para 4.100, the Law Commission commented, succinctly and correctly, that
the decision seemed entirely justiable
if the rationale of consistency is accepted: it would be quite
inconsistent to imprison or detain someone on the grounds that he was
responsible for a serious o›ence and then to compensate him for the D
detention.
67 That line of reasoning had been adopted, some years before, by
Samuels JA in State Rail Authority of New South Wales v Wiegold (1991)
25 NSWLR 500. The plainti› had been seriously injured while carrying
out maintenance work on overhead electric lines in the course of his
employment with the rail authority. The authority continued to employ E
him, but his injuries meant that he could undertake only light duties and his
earnings were, accordingly, reduced. In order to make up the decit after the
payments under the workers compensation scheme nished, the plainti›
took up the cultivation of Indian hemp. He was, however, arrested, pleaded
guilty to the relevant drug tra–cking o›ence, and was imprisoned. He lost
his job. In the trial of his claim against the rail authority for damages for his F
injuries, the judge proceeded on the basis that the plainti› would never have
got involved in cultivating hemp if he had not been injured due to the
defendants negligence. With obvious reluctance, Samuels JA accepted that
nding of fact, but went on to hold thatdespite itthe plainti› was not
entitled to damages for being imprisoned and for his loss of earnings while
in prison. His Honour declined to follow Woolf Js decision in Meah v
McCreamer [1985] 1 All ER 367, and expressed his own view in this way G
25 NSWLR 500, 514:
If the plainti› has been convicted and sentenced for a crime, it means
that the criminal law has taken him to be responsible for his actions, and
has imposed an appropriate penalty. He or she should therefore bear the
consequences of the punishment, both direct and indirect. If the law of
H
negligence were to say, in e›ect, that the o›ender was not responsible for
his actions and should be compensated by the tortfeasor, it would set the
determination of the criminal court at nought. It would generate the sort
of clash between civil and criminal law that is apt to bring the law into
disrepute.
1381
A 68 The Supreme Court of Canada discussed the point more recently in

British Columbia v Zastowny [2008] 1 SCR 27. While a prisoner, the
plainti› was the victim of two sexual assaults by a prison o–cer. On his
release from prison, he became addicted to crack cocaine, committed
various o›ences and spent 12 of the next 15 years in prison. The plainti›
eventually sued the prison authorities for damages for the sexual assaults.
B
The trial judge held that the assaults had caused him to start using heroin
and had exacerbated his substance abuse and criminality. He was
awarded damages for, inter alia, his loss of earnings during the periods
which he had subsequently spent in prison. The Supreme Court allowed
the prison authorities appeal against that part of the award. Delivering
the unanimous judgment of the court, Rothstein J observed, at pp 37—38,
paras 22—23:
C
22. Zastownys wage loss while incarcerated is occasioned by the
illegal acts for which he was convicted and sentenced to serve time. In my
view, therefore, the ex turpi doctrine bars Zastowny from recovering
damages for time spent in prison because such an award would introduce
an inconsistency in the fabric of law. This is because such an award
would be, as McLachlin J described in Hall v Hebert [1993] 2 SCR 159,
D 178, giving with one hand what it takes away with the other. When a
person receives a criminal sanction, he or she is subject to a criminal
penalty as well as the civil consequences that are the natural result of the
criminal sanction. The consequences of imprisonment include wage loss.
As Deschamps J found in Quebec (Commission des droits de la personne
et des droits de la jeunesse) v Maksteel Qubec Inc 2003 SC 68;
E [2003] 3 SCR 228, para 33, every incarcerated o›ender must su›er
the consequences that result from being imprisoned, namely loss of
employment for unavailability. An award of damages for wages lost
while incarcerated would constitute a rebate of the natural consequence
of the penalty provided by the criminal law.
23. Preserving the integrity of the justice system by preventing
inconsistency in the law is a matter of judicial policy that underlies the
F ex turpi doctrine.
The court went on, at pp 41—42, para 30, to observe:
The judicial policy that underlies the ex turpi doctrine precludes
damages for wage loss due to time spent in incarceration because it
introduces an inconsistency in the fabric of the law that compromises the
G integrity of the justice system. In asking for damages for wage loss
for time spent in prison, Zastowny is asking to be indemnied for the
consequences of the commission of illegal acts for which he was found
criminally responsible. Zastowny was punished for his illegal acts on the
basis that he possessed su–cient mens rea to be held criminally
responsible for them. He is personally responsible for his criminal acts
and the consequences that ow from them. He cannot attribute them to
H
others and evade or seek rebate of those consequences. As noted by
Samuels JA in State Rail Authority of New South Wales v Wiegold (1991)
25 NSWLR 500, to grant a civil remedy for any time spent in prison
suggests that criminally sanctioned conduct of an individual can be
attributed elsewhere.
1382
69 This line of authority, with which I respectfully agree, shows that a A

civil court will not award damages to compensate a claimant for an injury or
disadvantage which the criminal courts of the same jurisdiction have
imposed on him by way of punishment for a criminal act for which he was
responsible. That principle can indeed be analysed in terms of the ex turpi
causa rule since the plainti› cannot even begin to mount his claim without
founding on his own criminal activity. I would accordingly reject the rst
B
version of the claimants claim.
70 But Mr Scrivener has an alternative version. He submits that, as a
result of his injuries in the crash, Mr Gray was losing earnings immediately
before 19 August 2001 and, on the balance of probabilities, he would have
continued to do so after that date, even if he had not killed Mr Boultwood.
He was therefore entitled to damages from the defendants for his loss of
earnings after, just as much as before, 19 August. In e›ect, on this approach C
that date had little signicance for his claim for loss of earnings.
71 Indeed, putting the matter at its boldest, the claimant asserted that
the manslaughter and his resulting custody were completely irrelevant: due
to the e›ects of the train crash, he would in any event have landed up being
detained in a mental hospital and losing all his earnings, even without the
manslaughter. But, in that form, the claim cannot survive Flaux Js nding,
D
based on the available medical evidence, that
it could not be said that, on a balance of probabilities, the claimant
would have been admitted to or detained in a psychiatric hospital, even if
he had not committed the manslaughter, let alone that he would not have
been able to engage in gainful employment at any time from August 2001
through the summer of 2008 (when he may be released from Runwell
E
Hospital) to some indeterminate date in the future.
72 Even though his claim cannot be pitched so high, at trial the claimant
might well be able to show that, if he had not committed the manslaughter,
he would have continued to su›er some loss of earnings after 19 August
2001. If so, Mr Scrivener submits, the court should award the claimant
damages for that loss: his conviction for manslaughter does not come into
F
the picture and should simply be ignored.
73 I would go along with Mr Scriveners argument to this extent: if the
claimant had a perfectly lawful right of action covering loss of earnings after
19 August 2001, that claim did not suddenly become unlawful when he
killed Mr Boultwood. But that is not an end of the matter: the killing may
still provide a defence to the claim for loss of earnings, even if it did not make
that claim unlawful. And, in fact, it is not the claimant but the defendants G
who found on the events relating to the manslaughter and its consequences.
In e›ect, they say that they are not liable for any loss of earnings after
19 August 2001 because, by killing Mr Boultwood, the claimant put himself
in a position where he was prevented from working and earning. On this
version of the claim, the real dispute between the parties is, therefore, as to
whether the claimants admitted killing of Mr Boultwood and his
H
subsequent conviction and detention provide a defence to any claim, which
the claimant would otherwise have, for damages for loss of earnings after
19 August 2001.
74 That being the issue, I do not derive assistance from the decision of
this House in Corr v IBC Vehicles Ltd [2008] AC 884 which dealt with
1383
A liability for the suicide of a man who had su›ered depression as a result of
injuries for which the defendants were responsible. Since suicide is not a
crime, the questions of legal policy are quite di›erent. Nor, on the other
hand, do I agree with the Court of Appeal, at para 18 of the judgment of Sir
Anthony Clarke MR, that the issue can be resolved by asking whether the
facts giving rise to the claimants claim for loss of earnings are inextricably
linked with his criminal conduct. For one thing, opinions are likely to di›er
B
as to what facts are or are not inextricably linked with the claimants
criminal conducthere the Court of Appeal and the trial judge reached
di›erent answers. In any event, even if the facts giving rise to a claim are not
inextricably linked with the claimants criminal conduct, it does not
follow that, as a matter of legal policy, his conduct should have no bearing
on his right to recover damages from the defendants for his loss of earnings.
C 75 The immediately obvious objection to the claimants formulation
of his claim for loss of earnings is that it proceeds by ignoring what
actually happenedhe killed Mr Boultwood and was detained as a result.
Yet it is well established that the court should not speculate when it
knows. In other words, the judge should base any award of damages on
what has actually happened, rather than on what might have happened, in
the period between the tort and the time when the award is to be made.
D
So, even if the court were satised that the claimant would have continued
to lose earnings after 19 August 2001, due to the PTSD brought on by the
accident, it would be highly articial to ignore the fact that, by committing
manslaughter, the claimant had created a new set of circumstances which
actually made it impossible for him to work and to earn after that date.
Why should the defendants pay damages on the basis that, but for his
E PTSD, the claimant would have been able to work after 19 August, when,
as the court knows, because of the manslaughter, at all material times after
that date he was actually in some form of lawful detention which
prevented him from working?
76 The claimants approach is, to say the least, unreal. If that were the
worst that could be said against it, it might stand in the uncomfortable
company of Baker v Willoughby [1970] AC 467. There the plainti› was
F
injured in a road accident which left him with a permanently sti› leg. About
three years later, just before his action of damages was due to come on for
trial, he was shot in the same leg, which had then to be amputated. This
House held that the plainti›s disability could be regarded as having two
causes and, where the later injuries became a concurrent cause of the
disabilities caused by the injury inicted by the defendant, they could not
G reduce the amount of the damages which the defendant had to pay for those
disabilities. So the defendants had to pay the same sum by way of damages
for the plainti›s sti› leg, even though it had actually been amputated. In
Jobling v Associated Dairies Ltd [1982] AC 794, 806G, Lord Edmund-
Davies described this approach as unrealistic and Lord Keith of Kinkel
concluded, at p 814E, that in its full breadth the decision was not
acceptable. Happily, there is no need to review the merits of Baker v
H
Willoughby in this case since there is a fundamental objection to this version
of the claimants claim for loss of earnings which, in my view, takes it well
beyond any possible reach of the reasoning in that case. At this point I return
to the desirability of di›erent organs of the same legal system adopting a
consistent approach to the same events.
1384
77 In British Columbia v Zastowny [2008] 1 SCR 27, 38, para 23, A

Rothstein J treated the need to preserve the integrity of the justice system,
by preventing inconsistency in the law, as a matter of judicial policy that
underlay the ex turpi causa doctrine. In other words, in the circumstances
of that case the application of the ex turpi causa doctrine helped to promote
the more fundamental legal policy of preventing inconsistency in the law.
That such a policy exists is beyond question. In Zastowny and the
B
preceding cases, the need was to ensure that the civil and criminal courts
were consistent in their handling of the plainti›s criminal conduct and its
consequences. But that is simply one manifestation of a desirable attribute
of any developed legal system. In classical Roman law the jurists were at
pains to ensure that the various civil law and praetorian remedies worked
together in harmony in relation to the same facts. One of the hallmarks of
a good modern code is that its provisions should interrelate and interact C
so as to achieve a consistent application of its overall policy objectives.
Complete harmony may well be harder to achieve in an uncodied
systemhence the constant attention paid by the classical jurists to the
problemsince di›erent remedies will have developed at di›erent times
and in response to particular demands. But the gradual drawing together of
law and equity in English law illustrates the same pursuit of harmony and
D
consistency. And, certainly, the courts are conscious that inconsistencies
should be avoided where possible. So, for instance, a court should not
award damages in tort if a contractual claim based on the same events
would be excluded by some term in the contract between the parties.
Similarly, a court should not give a remedy on the ground of unjust
enrichment if this would be tantamount to enforcing a contract which the
law would treat as void in the circumstances. Likewise, in the present case, E
when considering the claim for loss of earnings, a civil court should bear in
mind that it is desirable for the criminal and civil courts to be consistent in
the way that they regard what the claimant did. As Samuels JA observed in
State Rail Authority of New South Wales v Wiegold 25 NSWLR 500, 514,
failure to do so would generate the sort of clash between civil and criminal
law that is apt to bring the law into disrepute.
F
78 After he killed Mr Boultwood, the claimant was detained, rst in
prison and then in Runwell Hospital, in accordance with a number of orders
of the criminal courts. He did not challenge any of those orders. The civil
courts must therefore proceed on the basis that, even though the claimants
responsibility for killing Mr Boultwood was diminished by his PTSD, he
nevertheless knew what he was doing when he killed him and he was
responsible for what he did. Similarly, it must be assumed that the disposals G
adopted by the criminal courts were appropriate in all the circumstances,
including the circumstance that he was su›ering from PTSD. Ra›erty J
imposed a hospital order and a restriction order. While it is correct
to say that a hospital order, even with a restriction, is not regarded as a
punishment, this does not mean that the judge was treating the claimant as
not being to blame for what he did. On the contrary, as the Court of Appeal
H
recalled in R v Birch (1989) 11 Cr App R (S) 202, 215, even where there is
culpability, a hospital order with a restriction order may well be the
appropriate way to deal with a dangerous and disordered person. We must
therefore just proceed on the basis that Ra›erty J correctly considered that
the orders which she made were necessary for the protection of the public
1385
A from serious harm, having regard, in particular, to the claimants violent

attack on Mr Boultwood.
79 By imposing the hospital order with a restriction, the judge was
ensuring that, because he had committed manslaughter, the claimant would
not be free to move around in the community unless and until authorised to
do so by the Secretary of State. This meant, among other things, that he was
not to be free to work and earn while subject to the orders. In other words,
B
his earning capacity was removed for as long as they were in force. In my
view, it would be inconsistent with the policy underlying the making of the
orders for a civil court now to award the claimant damages for loss of
earnings relating to the period when he was subject to them.
80 Specic authority in favour of that approach, where the plainti› had
been imprisoned, is indeed to be found in the judgment of Samuels JA in
C State Rail Authority of New South Wales v Wiegold 25 NSWLR 500, 515:
It is true that in the present case the trial judge did not, as in Meah v
McCreamer [1985] 1 All ER 367, nd that the respondent was entitled to
compensation for loss of liberty resulting from imprisonment, or for lost
wages during incarceration, or for any loss in post release earning
capacity resulting from his conviction and imprisonment. Rather, what
D he did was to refuse to treat the conviction and imprisonment of the
appellant as a vicissitude of life, for want of a better term, which had
crystallised before the date of the hearing, and which reduced the notional
economic loss which could be attributed to the appellants negligence:
cf Faulkner v Ke›alinos (1970) 45 ALJR 80, 85, 88. But in point
of principle, I cannot see that there is a relevant distinction between
the two sorts of case. If one cannot get direct compensation for the
E
non-economic or economic loss resulting from imprisonment, one should
not be able to receive indirect compensation for lost earning capacity
after imprisonment by treating the fact of imprisonment as irrelevant to
the assessment of economic loss.
81 I respectfully agree with Samuel JAs analysis. It should also be
applied in this case, even though the particular disposal chosen by Ra›erty J
F
happened to take the form of a hospital order rather than a sentence of
imprisonment. That is consistent with the view of the Law Commission in
the passage quoted at para 66 above.
82 In short, the civil court should cleave to the same policy as the
criminal court. For that reason, the events which the claimant triggered on
19 August 2001 should not be regarded as irrelevant to the due assessment
G of the loss of earnings for which the defendants are liable. Rather, the House
should uphold the defendants contention that, as a matter of policy, they
should not be held liable for any such loss after 20 August 2001 when the
claimant gave himself up to the police. I respectfully agree with what my
noble and learned friend, Lord Brown of Eaton-under-Heywood, says on
this point.
83 That is the appropriate approach on the facts of this case. The
H
position might well be di›erent if, for instance, the index o›ence of which a
claimant was convicted were trivial, but his involvement in that o›ence
revealed that he was su›ering from a mental disorder, attributable to the
defendants fault, which made it appropriate for the court to make a hospital
order under section 37 of the 1983 Act. Then it might be argued that the
1386
defendants should be liable for any loss of earnings during the claimants A
detention under the section 37 order, just as they should be liable for any loss
of earnings during his detention under a section 3 order necessitated by a
condition brought about by their negligence. That point does not arise on
the facts of this case, however, and it was not fully explored at the hearing.
Like my noble and learned friend, Lord Phillips of Worth Matravers,
I therefore reserve my opinion on it.
B
84 The claimant has a number of other claims for damages, which
were not explored in detail at the hearing. In particular, he has what is
described as a claim for an indemnity against any future liability in
damages to Mr Boultwoods dependantsa claim for economic loss.
He also has a claim for his feelings of guilt and remorse. As my noble and
learned friend, Lord Ho›mann, says, these claims are not a consequence of
the sentence of the criminal court and so cannot be disposed of on the C
ground of inconsistency. Nevertheless, I agree with him that they should
be rejected.
85 In British Columbia v Zastowny [2008] 1 SCR 27, 41—42, para 30,
quoted at para 68 above, Rothstein J observed that a person is not entitled to
be indemnied for the consequences of his criminal acts for which he has
been found criminally responsible. He cannot attribute them to others or D
seek rebate of those consequences. Yet that is precisely what the claimant is
trying to do, both in his claim for any sum he is found liable to pay in
damages to Mr Boultwoods dependants and in his claim for his feelings of
guilt and remorse.
86 In Meah v McCreamer (No 2) [1986] 1 All ER 943 Woolf J rejected
an attempt to recover the damages which the plainti› had been found liable
to pay to two women whom he had subjected to criminal attacks. His main E
reason for rejecting the claim was that the damages were too remote. But he
would also have rejected it, at pp 950H—951F, on the public policy ground
that the plainti› was not entitled to be indemnied for the damages which he
was liable to pay as a result of his criminal attacks. That seems to me to be
an appropriate application of the ex turpi causa rule.
87 In the same way, in this case the claimant should not be entitled to an F
indemnity for any damages he had to pay in consequence of his having
assaulted and killed Mr Boultwood. The same goes for his claim for feelings
of guilt and remorse. Alternatively, the claims can be treated as simply
raising issues of causation and disposed of as Lord Ho›mann explains.
88 For these reasons, and in agreement with Lord Ho›mann, I would
allow the appeal and restore the order of Flaux J.
G
LORD BROWN OF EATON-UNDER-HEYWOOD
89 My Lords, I have the greatest sympathy for this respondent.
Truly his life has been a tragedy. For 40 years a decent and law-abiding
citizen, now, consequent on severe psychological trauma sustained in the
Ladbroke Grove rail crash, subject to hospital and restraint orders following
conviction for manslaughter. But for his injuries it is inconceivable that the
H
respondent would ever have killed anyone.
90 The detailed facts of the case have been recounted by others of your
Lordships. I shall not repeat them but shall instead seek to illustrate the
problem they raise by reference to a much simplied set of facts broadly
based upon them.
1387
Lord Brown of Eaton-under-Heywood
A 91 Assume A, a man of 40, is psychologically injured by Bs negligence

so as to su›er a continuing partial loss of earnings: from the date of the
accident he earns £15,000 per annum instead of the £20,000 per annum he
had previously been earning. Assume that had his claim been heard two
years later he would have been awarded £10,000 special damages (for two
years partial loss of earnings) and, say, £50,000 for future loss of earnings
(ten years at £5,000 pa). Assume that two years after the accident, his claim
B
not yet having been heard, he deliberately kills C for no good reason, a
killing which, but for his injuries, he would never have committed. This is
reected by his being convicted not for murder but for diminished
responsibility manslaughter for which he is sentenced to detention in
hospital with a restriction order. Assume that when thereafter his claim
comes to be heard he remains detained. From the date of the killing he has
C ceased to earn anything and is not expected to earn again.
92 On these assumed facts A clearly remains entitled to an award of
£10,000 special damages. But what of his future loss of earnings? Following
the killing he is in fact worse o› to the full extent of the £20,000 p a he
would have been earning but for the accident (£200,000 on a ten year
multiplier). Can he claim this? Or if not this, can he at least continue to
assert his partial loss claim at the rate of £5,000 p a (£50,000)?
D
93 There is an obvious and fundamental problem in claiming the full
£20,000 per annum. To establish this, A needs to rely not only on Bs
negligence resulting in his psychological injury and consequential reduced
earning capacity but also on the fact of his killing C and his resultant
detention transforming his partial earning loss into a total one. For the
reasons given by my noble and learned friends, Lord Ho›mann and Lord
E Rodger of Earlsferry, this problem is so plainly insurmountable that it is
unnecessary to spend further time upon it. A cannot obtain compensation
for the consequences of his own deliberate act in killing C, an act for
which the law holds A criminally responsible notwithstanding that his
responsibility is diminished because of the injuries resulting from Bs
negligence. So much is plainly established on the authorities: State Rail
Authority of New South Wales v Wiegold (1991) 25 NSWLR 500; Clunis v
F
Camden and Islington Health Authority [1998] QB 978; Worrall v British
Railways Board (unreported) 29 April 1999; [1999] CA Transcript No 684
and British Columbia v Zastowny [2008] 1 SCR 27. Common to all is the
principle that the integrity of the justice system depends upon its consistency.
The law cannot at one and the same time incarcerate someone for his
criminality and compensate him civilly for the nancial consequences.
G I shall refer to this henceforth as the consistency principle. It is the
underlying rationale for the application of the ex turpi causa non oritur actio
doctrine in the present context.
94 On the face of it, however, a continuing partial loss claim looks less
objectionable. Here it is not A who is seeking to rely on the killing and its
consequences to enlarge his pre-existing claim but rather B who seeks to
invoke the killing to terminate As pre-existing claim. Why should B, whose
H
negligence it was, after all, which diminished As responsibility for the
killing and who therefore might himself be thought partially responsible for
the killing, actually be better o› as a result of it? If, as Lord Ho›mann
envisages at para 46 of his opinion, Cs dependants would have a claim
against B (assuming always that the usual requirements of causal connection
1388
and foreseeability are satised), so that to that extent at least the law makes A
B responsible for Cs death, why should the killing actually advantage B
vis-a-vis A? Could B, for example, claim indemnity against A in respect of
any liability B may be under to Cs dependants? Surely not.
95 It does not follow, however, that the continuing partial loss claim
remains sustainable and, indeed, two reasons are suggested why it too must
fail. One is the basic principle that subsequent events a›ecting a loss of
B
earnings claim have to be taken into account when assessing what loss is
recoverablesee, for example, Jobling v Associated Dairies Ltd [1982]
AC 794 where, before trial, the claimant was found to be su›ering from
myelopathy which in any event was to disable him totally. This I shall refer
to as the vicissitudes principle (as it was called in Jobling) and, where the
supervening event has already occurred, it applies in conjunction with a
second principle, that the court will not speculate when it knows. The other C
reason is that the partial loss claim, no less than the total loss claim, falls foul
of the consistency principle. Lord Ho›mann (at para 49 of his opinion)
emphasises the rst of those reasons, Lord Rodger (at paras 76—81) the
second.
96 For my part I question whether the rst reason is in itself su–cient to
dispose of the partial loss claim. Baker v Willoughby [1970] AC 467, where
D
the claimant was injured by two successive tortfeasers (as succinctly
described by Lord Rodger at para 76 of his opinion), demonstrates if nothing
else that on occasion justice will require some modication of the
vicissitudes principle. How precisely, in the case of successive torts, this
modication is to be rationalised and appliedthe subject of extensive
discussion in the speeches in Jobling and some subsequent consideration by
Laws LJ in the Court of Appeal in Rahman v Arearose Ltd [2001] QB 351 is E
not presently in point. Just as Baker v Willoughby was held to have no
application in Jobling [1982] AC 794 where the victim is overtaken before
trial by a wholly unconnected and disabling illness (Lord Edmund-Davies
at p 809E), so too here, where the respondent (the victim of the appellants
tort) has been overtaken before trial by a continuing detention order
disabling him from working, Baker v Willoughby [1970] AC 467 cannot
F
apply. Obviously neither Jobling nor the present case involved successive
torts. But whereas the disabling subsequent event in Jobling (myelopathy)
was wholly unconnected, that can hardly be said of the manslaughter and
the respondents consequential detention here. But for the appellants
negligence there would have been no manslaughter and no detention.
That here is a given.
97 All these cases raise in one form or another the question: on what G
disabling supervening events is the initial tortfeasor entitled to rely to reduce
or extinguish the consequences of his tort? Put another way: from what
further misfortunes of the claimant should the tortfeaser be held entitled to
benet?
98 It is perhaps instructive in this context to consider the recent decision
of the House in Corr v IBC Vehicles Ltd [2008] AC 884. Shift the facts and
H
suppose that Mr Corr had in fact failed rather than succeeded in his suicide
attempt but had further injured himself so as to turn a partial loss of earnings
into a total one. It inevitably follows from the Houses decision that, so
far from such a supervening event bringing the claimants partial earning
loss to an end, he would have been found entitled to recover the whole.
1389
A Why? Why would the continuing loss claim not fall foul of the vicissitudes
principle? Essentially, as it seems to me, for two reasons: rst, because the
original tort remained causative of the suicide attempt (certainly the latter
was not wholly unconnected with the original injuries), and, secondly,
because there was no public policy reason for regarding the suicide attempt
as a supervening vicissitude such as to extinguish the tortfeasors liability
B
for the continuing loss. The rst of those reasons is common to this case
too (which is why it seems to me that the vicissitudes principle is not
su–cient in itself to defeat As continuing loss claim). But what of the
second reason, recognising of course that manslaughter, unlike suicide, is a
criminal o›ence?
99 I turn, therefore, to the consistency principle, the principle which so
plainly defeats the total loss claim. Does it logically operate to defeat the
C partial loss claim too? The only one of the many authorities put before your
Lordships which appears to bear at all directly upon this question is State
Rail Authority of New South Wales v Wiegold 25 NSWLR 500 (the facts of
which are su–ciently set out by Lord Rodger at para 67 of his opinion).
Of particular relevance is the passage in Samuels JAs judgment already set
out by Lord Rodger but which for convenience I now repeat, at p 515:
D It is true that in the present case the trial judge did not, as in Meah v
McCreamer [1985] 1 All ER 367, nd that the respondent was entitled to
compensation for loss of liberty resulting from imprisonment, or for lost
wages during incarceration, or for any loss in post release earning
capacity resulting from his conviction and imprisonment. Rather, what
he did was to refuse to treat the conviction and imprisonment of the
E appellant as a vicissitude of life, for want of a better term, which had
crystallised before the date of the hearing, and which reduced the notional
economic loss which could be attributed to the appellants negligence:
cf Faulkner v Ke›alinos (1970) 45 ALJR 80, 85, 88. But in point
of principle, I cannot see that there is a relevant distinction between
the two sorts of case. If one cannot get direct compensation for the
non-economic or economic loss resulting from imprisonment, one should
F not be able to receive indirect compensation for lost earning capacity
after imprisonment by treating the fact of imprisonment as irrelevant to
the assessment of economic loss.
100 The authority there referred to, Faulkner v Ke›alinos (1970)
45 ALJR 80, like Baker v Willoughby [1970] AC 467, concerned injuries
sustained in successive torts (there two car accidents), but it reached a rather
G di›erent conclusion. Windeyer J, giving the leading judgment in the High
Court of Australia, said 45 ALJR 80, 85:
The impairment of a faculty, such as a capacity to earn money, is not
like damage to property. The capacity has no value unless it be
exercisable. It is only while, and for so long as, it can be exercised that an
impairment of it can produce a pecuniary loss. It is for this reason that in
H
assessing damages for the destruction or reduction of earning capacity
an allowance must ordinarily be made for the contingencyif in the
particular case it is seen as a reasonable possibilityof interruptions of a
mans working life by periods of unemployment, sickness or accident.
If in fact any of such things occurs before the assessment has to be made,
1390
what would have been allowed for as a possibility has become an A

actuality: the risk of an interruption of earnings has materialised and a
hypothetical deduction to be made in the computation of damages has
crystallised. It is therefore a mistake to think of damages recoverable for
the consequences of the rst accident as diminished by the second
accident. So far as the damages result from the impairment of earning
capacity, the second accident merely supplies a measure of one thing that
B
must be taken into account, namely the risk of an accident.
101 In referring to that case, therefore, Samuels JA was saying that the
vicissitude principle applied no less where the supervening event was
disability consequent upon imprisonment for a criminal o›ence (there the
cultivation of marijuana) than where it was some other disabling event.
And he was saying that, by the same token as the conviction there
C
(notwithstanding that, as here, the claimant would never have committed
the o›ence but for his injuries sustained through the defendants negligence)
precluded any claim based on the losses directly sustained through his
imprisonment, so too the fact of imprisonment had to be regarded as a
vicissitude rather than ignored when assessing indirect loss also. True, the
indirect loss there being claimed was not a continuing partial loss of earnings
whilst in prison but rather the losses the claimant would su›er both in wages D
and superannuation benets following release from prison. But in principle
the case is indistinguishable from the present. And, in common with all of
your Lordships, I am persuaded that Samuels JA was right. In the last
analysis there is no logical basis on which (in my illustration) A could be
regarded as responsible and B in no way legally liable for the full
consequences of his detention (As inability to earn the full £20,000 p a he
E
would have earned but for his accident) and yet be entitled in respect of the
continuing loss claim to disregard his responsibility for his supervening
detention and thus ignore it as a vicissitude terminating his claim.
102 Whilst recognising that in the result the tortfeasor benets from
criminality which in one sense he himself has contributed to bringing about,
the opposite conclusion would result in the claimant being able to ignore a
vicissitude for which he for his part has been held responsible (if only to a F
diminished extent). And this surely would be a strange conclusion when one
bears in mind that vicissitudes for which a claimant may be wholly blameless
(as in Jobling itself ) can and do take e›ect to terminate what earlier had
appeared recoverable long-term continuing losses.
103 I do not think that any of these observations are at odds with
anything said by others of your Lordships. On the contrary, I am in
substantial agreement with all that others have saidincluding not least the G
reservations expressed by my noble and learned friend, Lord Phillips of
Worth Matravers, at para 15 of his opinion. Sympathetic though I am to the
respondent, the disputed elements of his claim do indeed fall foul of the
ex turpi causa principle.
104 For these reasons I too would allow this appeal and restore the
order of the judge below. H
Apppeal allowed.
Cross-appeal dismissed.
CTB

1339 Gray V Thames Trains LTD and Another

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1339

[2009] 1 AC Gray v Thames Trains Ltd (HL(E))

Gray v Thames Trains Ltd and another

The claimant was a passenger on a train involved in a major railway accident. He

A Holman v Johnson (1775) 1 Cowp 341

APPEAL from Flaux J

A application of the ex turpi causa doctrine, in that the claimant claimed no

The court took time for consideration.

The facts and the proceedings A

(vii) On Sunday 19 August 2001 at about 9.30 in the evening, the A

That is true but would it matter? It is by no means clear to us that it would

A manslaughter was somehow independent of it was unreal and that on

or its alleged consequences, even in connection with sentence. He was A

A The decision in Corr

A remitted for consideration by a judge, who can of course be Flaux J if he

C 27 October 2008. The Appeal Committee of the House of Lords (Lord

declined to go behind the claimants responsibility for the manslaughter and A

The Committee took time for consideration.

A was admitted, are fullled. If the authority expires without being

A disorder by the Department of Health and Home O–ce Working Group

A indemnity against any claims which might be brought by dependants of the

Clunis v Camden and Islington Heath Authority . . . seems entirely

A Zastownys wage loss while incarcerated is occasioned by the illegal

without having to play the criminal laws conscience: see EK Banakas A

A inconsistency of requiring someone to be compensated for a sentence

counter-factual basis is in my opinion precluded by the decision of this A

A the case should be distinguished from one in which the injury is a

A 68 The Supreme Court of Canada discussed the point more recently in

69 This line of authority, with which I respectfully agree, shows that a A

77 In British Columbia v Zastowny [2008] 1 SCR 27, 38, para 23, A

A from serious harm, having regard, in particular, to the claimants violent

A 91 Assume A, a man of 40, is psychologically injured by Bs negligence

what would have been allowed for as a possibility has become an A

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Clunis v Camden and Islington Heath Authority . . . seems entirely

A Zastownys wage loss while incarcerated is occasioned by the illegal