Gray V Thames Trains Ltd [2009]

How Did Their Lordship Apply The Principles Of Ex Turpi Causa Non Oritur Actio And Public Policy To The Claimant’s Claim?

Ex trupi causa non ortiur actio is a very important maxim. Before a discussion on how their Lordship applied the principle in the Gray case let see what’s the maxim. This is a Latin word means” from dishonorable cause an action does not arise” This is a legal doctrine which states that a claimant will be unable to pursue a cause of action. It is arises in connection with his own illegal act. It is also known as the “illegality defense”.

In English law the policy is intended to prevent a claimant from seeking any benefit from their own unlawful acts.

In the Gray case their Lordship applied the principle of ex trupi causa on the basis of preventing a claimant from profiting from his wrong and illegal conduct. In the case their comments on this issue are as follows:

According to Lord Hoffmann ex turpi causa maxim expressed not so much a principle as a policy. It could be stated in a wider or a narrower form. The wider and simpler version was that you could not recover for damage which was the consequence of your own criminal act. In its narrower form, it was that you could not recover for damage which was the consequence of a sentence imposed upon you for a criminal act. In such a case it was the law which, as a matter of penal policy, had caused the damage and it would be inconsistent from the law to require that the person be compensated for the damage. The narrower version precluded the claim for loss of earnings after the claimant had been sentenced for the manslaughter.*9 Holman V Johnson (1775) and Askey V Golden Wine Co Ltd(1948), British Columbia V Zastowny (2008) Lord Hoffman support the Flaux J judgment and allowed the appeal means Gray will not get the loss of earning.

According to Lord Rodger the maxim ex turpi causa non ortiur actio is as good a way as any of identifying the policy which the court is asked to applies in those circumstances.

First, the claimant alleges that the defendant’s negligence caused him to develop psychological problems. Which in turn led to him committing manslaughter? He detained in hospital under the 1983 Mental Health Act, and losing earnings as a result. In my view a claim of that kind undoubtedly falls foul of the ex trupi 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. According to him it would be inconsistent with the policy underlying the making of the orders for a civil court not to award the claimant damages for loss of earnings relating to the period when he was subject to them *10 Meah V Mc Creamer(1985), State Rail Authority of New South Wales V Wiegold 25NSWLR 500

Lord Phillips & Lord Brown delivered opinions like-minded with Lord Hoffmann and Lord Rodger. They said in extreme cases where the sentencing judge has made it clear that the defendant’s offending behavior has played no part of the decision to impose a hospital order under section 37 of the Mental Health Act 1983,*4 It is arguable that hospital order should be treated as being a consequence of the defendant’s mental condition and not of the defendant’s criminal act.*5 In that event the public policy defense of ex turpi causa would not apply. Clunis V Camden and Islington Health Authority, *6 Worrall v British Railways Board and R V Eaton*7

Lord Scott also agreed with the opinion of other judges.

Regarding public policy their Lordship did not discuss richly. According to Lord Mansfield’s famous dictum in Holman v Johnson (1775)*8

“The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.” Their Lordship concluded that the immediate cause of Mr Gray’s losses was his own crime; it would be “offensive to public notions of the fair distribution of resources” that a claimant be compensated for the consequences of his own criminal behaviour (p [51]) In Gray case their lordship was fully concerned about public policy as they believe the policy is for preventing the illegal conduct; preventing a claimant from profiting from his wrong; deterrence; proportionality.

How did their Lordships deal with the issue of causation?

In Gray V Thames Train Ltd and another case their Lordship held that 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 imprisonment amounted to a break in the chain of causation was on the defendant or not. If it did the claim would fail for that reason. The court could hold that the Law Reform (Contributory Negligence) Act 1945 applied on the basis that the manslaughter was “fault with in s1 (1) of the Act. so that the loss of earnings was partly caused by the tort and partly caused by the claimant’s deliberate criminal act. The apportionment would separate the responsibility of the claimant from that of the defendants and ensure 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. Where the manslaughter did not break the chain of causation or there was less than 100% contributory negligence on the claimant’s part, so that the claim was not inextricably linked with the criminal conduct, public policy did not prohibit recovery. Cross V Kirby (2000) CA, Corr V IBC Vehicles Ltd (2008) WLR 499. It was the depression suffered by the claimant caused by the defendant’s negligence that led the claimant to kill the victim. In those circumstances it was strongly arguable that there was no break in the chain of causation. The same could be true of the claimant’s act of manslaughter caused by his PTSD in Gray. Mr Gray was unable to earn money after 19 August 2001 because he was detained. He was detained because he had committed manslaughter. 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 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.*1 Jobling V Associated Dairies Ltd [1982]*2 ,Hunter Area Health Service v Presland (2005) 63 NSWLR 22

Would The Outcome Have Been Any Different Had Mr. Gray Been Convicted Of A Lesser Offence Than Manslaughter, And Had A Hospital Order Without Restriction Imposed On Him Entirely Because Of His Condition? Give Reasons For Your Answer

This is little bit contradictory in the gray case. In the case of lesser offence than manslaughter there should be no difference in the interest of public policy. According to Lord Phillips the offence leading to that conviction might have no relevance to the decision to make the order. Where the sentencing judge made it clear that the defendant’s offending behavior played no part in the decision to impose the hospital order, it was strongly arguable that the order should be treated as being a consequence of the defendant’s mental condition and not of his criminal act. In the case of hospital order without restriction comments of LJ Mustill in the case R V Birch that *1 “Once the offender is admitter to hospital pursuant to a hospital order without restriction on discharge, his position is almost exactly the same as if he were a civil patient”

In this regard Mustill LJ and Lord Bingham recognised that a mentally disordered offender whose mental condition did not satisfy the test of insanity or render him unfit to plead might nonetheless have no significant responsibility for his offence. If a hospital order with restriction imposed upon Mr. Gray under s.37 of 1983 Act., he could have been compensated as he is like a civil patient and it would not be inconsistent with Criminal Court judgement by Civil Court. A hospital order under section.37 means the person needs treatment and he can be discharged at any time, since his position is almost exactly the same as if were a civil patient.

According to Rodger the position might well be different if, for instance, the index offence of which a claimant was convicted were trivial, but his involvement in that offence revealed that he was suffering from a mental disorder, attributable to the defendants’ fault, which made it appropriate for the court to make a hospital order under sec-37 of the 1983 Act. Lord Brown (at p103) and Lord Rodger (at p83) also said the seriousness of the illegality must be considered. In my opinion if there is lesser offence and hospital order without restriction, than outcome might be different from Gray