West Law Report

Killer can sue tortfeasor over loss of earnings

Posted in Times Law Report by mrkooenglish on July 21, 2008

From The TimesJuly 9, 2008

Killer can sue tortfeasor over loss of earnings
Court of Appeal
Published July 9, 2008
Gray v Thames Trains Ltd and Another
Before Sir Anthony Clarke, Master of the Rolls, Lord Justice Tuckey and Lady Justice Smith
Judgment June 25, 2008

A claimant, who, as a result of the defendant’s negligence, suffered depression which led him to kill someone, could recover damages for loss of earnings after he committed manslaughter so long as his claim was not inextricably linked to his criminal actions.

The Court of Appeal so held, allowing the appeal of the claimant, Kerrie Francis Gray, against the dismissal by Mr Justice Flaux ([2007] EWHC 1558 (QB)) of his claim for loss of earnings because, as a matter of public policy, he could not rely on the fact of his own criminal activity. The defendants, Thames Trains Ltd and Network Rail Infrastructure Ltd, admitted liability for negligence and damages up the date he committed manslaughter.

Mr Anthony Scrivener, QC and Mr Toby Riley-Smith for the claimant; Mr Christopher Purchas, QC for the defendants.

THE MASTER OF THE ROLLS, giving the judgment of the court, said that the claimant was a victim of the Ladbroke Grove rail crash on October 5, 1999.

His physical injuries were minor but the accident had a major psychological impact on him. He suffered posttraumatic stress disorder with a marked depressive component and a significant personality change. On August 19, 2001, he stabbed a stranger to death.

He pleaded guilty to manslaughter on the ground of diminished responsibility on April 22, 2002, and was ordered to be detained in a hospital under section 37 of the Mental Health Act 1983.

The defendants, the train and track operators, admitted that their negligence caused his injuries, including posttraumatic stress disorder, and admitted liability for his losses, including loss of earnings, incurred before August 19, 2001. They denied liability for losses after that date on the ground that no right of action could arise from a base cause, ex turpi causa non oritur actio.

Having reviewed the authorities, their Lordships concluded that where the cause of action was not founded on an illegal act, the question was whether the relevant loss was so inextricably bound up with or closely connected to the claimant’s illegal or criminal conduct that the court could not permit him to recover without appearing to condone that conduct.

The claimant’s case was simply that he had suffered a loss because, but for the tort, he would have earned money both before and after August 19, 2001, and was therefore entitled to recover the whole of his loss of earnings from the defendants.

In their Lordships’ view, the manslaughter was not inextricably bound up with that claim.

Although the legal burden of establishing causation in respect of each head of loss remained on the claimant, the evidential burden of showing that the manslaughter and the claimant’s incarceration amounted to a break in the chain of causation was on the defendants. In those circumstances it was for the trial judge to decide whether it broke the chain of causation or not.

The court could hold that the Law Reform (Contributory Negligence) Act 1945 applied on the basis that the manslaughter was fault within section 1(1) of the Act so that the loss of earnings was partly caused by the tort and partly by the claimant’s deliberate criminal act.

The apportionment would have the effect of separating the responsibility of the claimant from that of the defendants and ensuring that the claimant only recovered for the loss of earnings for which the defendants were truly responsible. In that event, the claimant’s recovery would not be inextricably bound up with the manslaughter but distinct from it.

Solicitors: Collins, Watford; Halliwells LLP, Manchester.

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