Gray v Thames Trains survives Patel v Mirza

Published: 16/11/2020 | News

Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43

In Gray v Thames Trains Ltd [2009] UKHL 33, the House of Lords considered the case of a claimant who had killed a man whilst suffering from PTSD. It was held that he could not recover damages against the person who had caused the PTSD for losses arising from his criminal act and its punishment. The doctrine of ex turpi causa non oritur actio barred recovery.

Some years later, the landmark case Patel v Mirza [2016] UKSC 42 came before the Supreme Court. The majority stated that Court are to apply a policy approach to the application of ex turpi causa (rejecting the alternative “reliance” based approach advocated by the minority).

The ex turpi causa doctrine has again reached the Supreme Court in circumstances similar to Gray. In a unanimous decision, the Court has affirmed that the previous law in relation to tortious recovery for criminal acts carried out under a mental impairment continues to bind this side of Patel v Mirza.

The Facts

Ecila Henderson suffered from paranoid schizophrenia. She had at various times been admitted to hospital but was discharged in 2009 and placed on a Community Treatment Order. In August 2010, she began to relapse. When she was visited by a housing support worker, she appeared agitated and either would not make eye contact or would stare intensely. On 25th August 2010, she attacked her mother who was visiting her flat, stabbing her to death with a kitchen knife.

In passing sentence during her criminal trial, the judge said,

“I should say that there is no suggestion in your case that you should be seen as bearing a significant degree of responsibility for what you did.”

Ms Henderson sued the Defendant, Dorset Healthcare University NHS Foundation Trust, which admitted liability in negligence in failing to return the appellant to hospital on the basis of her manifest psychotic state. Ms Henderson claimed damages under six heads of loss:

(1) General damages for personal injury (a depressive disorder and post-traumatic stress disorder (“PTSD”)) consequent on her killing of her mother.

(2) General damages for her loss of liberty caused by her compulsory detention in hospital pursuant to sections 37 and 41 of the 1983 Act.

(3)  General damages for loss of amenity arising from the consequences to her of having killed her mother.

(4) Past loss in the sum of £61,944 being the share in her mother’s estate which she is unable to recover as a result of the operation of the provisions of the Forfeiture Act 1982.

(5) The cost of psychotherapy (by way of future loss).

(6) The cost of a care manager/support worker (by way of future loss).

The Law

Both Jay J in the High Court and the Court of Appeal held that the Claimant was barred from recovery on grounds of public policy, holding that Gray v Thames Trains Ltd [2009] UKHL 33 and Clunis v Camden and Islington Health Authority [1998] QB 978 were binding authority for the proposition that one cannot recover compensation for loss suffered in consequence of ones own criminal act.

Before the Supreme Court, Ms Henderson’s case relied heavily on a passage in Gray in which Lord Phillips set out some significant reservations regarding the extent to which the principle would apply. He said,

“…where the sentencing judge makes it clear that the defendant’s offending behaviour has played no part in the decision to impose the hospital order, it is strongly arguable that the hospital order should be treated as being a consequence of the defendant’s mental condition and not of the defendant’s criminal act. In that event the public policy defence of ex turpi causa would not apply. More difficult 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 significant personal responsibility for his crime.”

Patel v Mirza was decided against the backdrop of a divergence of approach to the application of ex turpi causa in various significant cases. In some cases, judges had held that the maxim applies where the claimant has to rely upon the illegality to found the claim. In others, judges had adopted the approach of balancing the various policy considerations that applied to each case. In Patel, the Supreme Court by a majority of four to three held that the policy-based approach was the right one.

The decision

On Ms Henderson’s behalf it was argued that:

  1. Gray could be distinguished on the basis that Ms Henderson, despite having been convicted, had no significant responsibility for her actions.
  2. Gray should be departed from and Clunis overruled in light of Patel v Mirza.

On the first issue, the Supreme Court found that Gray could not be distinguished because the majority in that case had not held that the degree of responsibility had any relevance to the operation of the illegalitydefence. The doctrine applied by virtue of the criminal responsibility of the claimant, rather than the degree of personal responsibility.

On the second issue, Ms Henderson argued that Gray could not stand as it did not allow the Court to take into account the particular circumstances of the case or considerations of proportionality as required by Patel. The Supreme Court rejected this argument, holding that the reasoning in Gray is consistent with the approach endorsed in Patel, and that such was recognised in Patel itself.

It was also argued that the Court should depart from the judgment in Gray insofar as it decided that the illegality doctrine applied regardless of the personal responsibility of the Claimant. It was submitted that there would be no incoherence in allowing recovery under civil law where a person had committed a crime over which they had little or no control over their actions, particularly in light of significant academic criticism of the current criminal law as it relates to mental impairment.

It was pointed out that where an offender has a defence of diminished responsibility, the criminal courts may apply a sentence with no penal element. The point was made:

In such circumstances… the denial of the tort claim by means of illegality would constitute a punishment meted out in the civil law when the criminal law had declined to punish. If anything, the need for coherence would best be served by tort law declining to do what the criminal law has refused to do.

The Supreme Court described these as “formidable arguments” but held that they were insufficient to meet the high hurdle justifying departure from Gray. It made the point that while awarding damages may not cause inconsistency with the sentence for the particular criminal act, there would remain inconsistency in the law’s treatment of responsibility and blame for the act. There would also be significant difficulties determining a threshold of personal responsibility for the recovery of tortious damages (could a claimant recover where they have a “medium” degree of responsibility?)

Gray still applies, and ex turpi causa served to bar Ms Henderson’s claim.


At a high level, the application of ex turpi causa is contentious and difficult to distil to a single guiding principle. Critics of the majority reasoning in Patel v Mirza say that the judgment does little to bring legal certainty to the myriad situations in which it might arise.

In the tort law sphere, various lines of authority have arisen around particular situations where illegal conduct is connected with personal injury losses. Henderson is a good illustration of the fact that Courts will continue to follow the decided cases germane to the particular facts and will be slow to subject them to much reformulation in light of Patel v Mirza. Lord Hamblen expressly recognised this in the judgment, stating at paragraph 77,

“Thirdly, that does not mean that Patel represents “year zero” and that in all future illegality cases it is Patel and only Patel that is to be considered and applied. That would be to disregard the value of precedent built up in various areas of the law to address particular factual situations giving rise to the illegality defence. Those decisions remain of precedential value unless it can be shown that they are not compatible with the approach set out in Patel in the sense that they cannot stand with the reasoning in Patel or were wrongly decided in the light of that reasoning.

Another example is in cases where claimants have been injured riding pillion on a motorcycle that has been ridden dangerously. In Clark v Farley[2018] EWHC 1007 (QB), Yip J heard argument about whether Patel v Mirza had any effect on the existing line of authority in pillion cases. She agreed with counsel for the Defendant that the existing line of authorities needed no modification.

Provided the reasoning is not fundamentally incompatible with the policy-based approach to the ex turpi causa doctrine, Courts are likely to derive more assistance from the relevant lines of previous authority than from a high level application of the rather broader principles stated in the majority judgment of Patel v Mirza.

Tom Emslie-Smith of Farrar’s Building