The ex turpi causa defence stands firm

profile_PI_Frances_Lawley1[1]

By Frances Lawley

EH (A Protected Party, by her Litigation Friend the Official Solicitor) v Dorset Healthcare University NHS Foundation Trust [2016] EWHC 3275 (QB)

The claimant suffered from paranoid schizophrenia and was under the care of the defendant NHS trust. On 25 August 2010, following the claimant’s mental collapse, she stabbed her mother to death. The defendant admitted that this tragic event would not have occurred but for its breaches of duty in failing to respond to the claimant’s mental collapse appropriately.

The claimant pleaded guilty to manslaughter and was subject to a hospital order. She sought general damages for personal injuries, namely PTSD and a depressive disorder following her mother’s death, as well as for her loss of liberty as a result of her detention in hospital.

The defendant denied liability on the grounds of illegality and/or public policy and a trial of this preliminary issue was ordered.

Jay J considered the evidence before the criminal court as well as the sentencing remarks of Foskett J, in particular:

  1. the claimant was not insane within the M’Naughten rules at the time of the offence;
  2. the claimant knew what she was doing and knew that it was morally and legally wrong;
  3. in the words of the claimant’s consultant psychiatrist, the claimant “knew the voice was telling her to do wrong and tried to resist it and the impulses, but failed.”; and
  4. Jay J summarised that the claimant had “very little, if any, true control over what [she] did”.

The defendant relied on two authorities, namely the Court of Appeal decision in Clunis v Camden and Islington HA [1998] QB 978 and the House of Lords decision in Gray v Thames Trains Ltd [2009] 1 AC 1339 in support of the argument that the claim was founded on an illegal act and the defence of ex turpi causa applied.

The claimant sought to distinguish the case at hand on the basis of the extent of each claimants’ personal culpability for the illegal act.

Jay J summarised the dispute as follows (paragraph 12 of the judgment):

In my view, there are three main questions for me to consider within the agenda circumscribed by the preliminary issue: (1) the correct interpretation of the sentencing remarks of Foskett J, and the extent to which it is permissible, if at all, to go behind them; (2) whether there is binding authority of the Court of Appeal and House of Lords precluding some or all of these claims; and (3) if not, whether the law as accurately enunciated (there remains a dispute between the parties as to what it is) permits, or obviates, the maintenance of some or all of these claims.

In considering the extent of the claimant’s personal culpability (by assessing Foskett J’s sentencing remarks), Jay J concluded that it fell “towards the lower end of the spectrum” and that it was “low and/or less than significant”. He found against the claimant on question (2), the question of binding authority.

The claimant’s argument was premised upon the assertion that the majority of their Lordships in Gray reserved judgment on whether the principles would apply to a claimant with very little personal responsibility for the criminal act. Jay J disagreed and held (at paragraph 63):

This is because the majority of their Lordships in Gray did not seek to quantify the claimant’s “substantial impairment” or to place him at any particular location along the notional spectrum. It may be that the evidential basis to do so was lacking; it may be that the majority considered that the exercise was legally irrelevant: this matters not. Lord Hoffmann clearly treated the issue as being unitary or monist (see paragraphs 22 and 27, and – by implication – paragraph 41). I asked Mr Bowen to tell me exactly where Lord Rodger adopted any different approach, and in my view he could not to do so. In my judgment, two possible inferences may be drawn from paragraphs 78-79 of Lord Rodger’s opinion, but neither avails the Claimant. The first is that he did not know on the material before him whether Mr Gray had significant personal responsibility for his actions, and was unwilling to draw inferences about it; the second (and my preferred reading) is that it was legally sufficient to state that he must have some personal responsibility, because that flows inexorably from the manslaughter conviction. As it happens, in my view Lord Rodger would have come to the same conclusion even should these paragraphs bear the interpretation that he thought that Mr Gray’s personal responsibility was significant.

If followed that there was judgment for the defendant on the preliminary issue. The end of the judgment does rather more than hint at an appeal but for the time being the status quo remains, namely that an action founded on an illegal act is doomed to fail.

It is questionable whether the decision would have been the same had the claimant been insane in the M’Naughten sense at the time the offence was committed. Had she had absolutely no personal responsibility for the offence it is much easier to see a distinction with the claimant in Gray.

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