Gray v Thames Trains Ltd
House of Lords
Citations:  UKHL 33;  1 AC 1339;  3 WLR 167;  4 All ER 81;  PIQR P22; (2009) 108 BMLR 205.
The claimant was a passenger on a train which crashed due to the defendant’s negligence. He suffered Post-Traumatic Stress Disorder due to his experiences, which caused his personality to change radically. The claimant went on to kill a person because of their disorder. As a result, he was convicted of involuntary manslaughter after establishing the defence of diminished responsibility. The judge sentenced him to a hospital order under the Mental Health Act 1983.
The claimant sued the defendant in negligence. He claimed damages for the consequences of his manslaughter: including loss of reputation, emotional distress, and indemnity for any potential claims made by his victim’s dependants. He also claimed damages for the consequences of his sentence: loss of liberty and lost earnings during the period of his detention. The defendant argued that they were not liable for any of these losses. They argued that the defence of illegality prevented the claimant from recovering losses for the consequences of his own criminal acts.
- Can a claimant recover damages for the consequences of their own criminal offence or its sentence?
The House of Lords held in favour of the defendant. None of the losses were recoverable.
This Case is Authority For…
The judges in this case disagreed on why the defendant should succeed. Lord Hoffman thought that the illegality defence comprises two rules: a ‘wide’ rule and a ‘narrow’ rule.
- The narrow rule provides that a person cannot recover damages for the consequences of a criminal sentence. This is justified by a need to maintain consistency with the criminal law. The narrow rule barred the claimant’s claim for loss of liberty and lost earnings.
- The wide rule provides that a person cannot recover for their consequences of their criminal actions more generally. Lord Hoffman thought this was just a matter of causation: following the case of Jobling v Associated Dairies Ltd  AC 794, the criminal act is a supervening cause which breaks the chain of causation. The wide rule barred the claimant’s claim for emotional harm, lost reputation and indemnity.
Lords Brown and Roger disagreed that the ‘wide rule’ was a matter of causation. They pointed out that Baker v Willoughby  AC 467 seemed to hold that a non-natural supervening event (such as a third-parties’ tort) does not break causation. Since the claimant’s crime was a non-natural supervening event, if the court were to apply normal causal rules the claim should succeed. Instead, they thought the defence of illegality should apply and bar the claim for public policy reasons.
Several of the Lords thought there might be exceptions to the illegality defence in these kinds of cases. Lord Roger argued that the defence of illegality might not bar the claim if the offence was trivial.
Lord Phillips thought that there might be an exception where the sentence did not reflect the claimant’s personal responsibility. This might be the case, for example, where the claimant is given a long hospital order because he is seriously ill, not because of the seriousness of his offence. This reasoning was later rejected by the Supreme Court in Henderson v Dorset Healthcare University NHS Foundation Trust  UKSC 43.
This case was decided when the primary test for the illegality defence was the test in Tinsley v Milligan  UKHL 3. The Supreme Court in Patel v Mirza  UKSC 42 has since overruled Tinsley. However, since none of the judges in Gray needed to rely on Tinsley, and Patel was not a tort case, for a time it was unclear whether Gray remains good law.
The issue was settled by the Supreme Court in Henderson v Dorset Healthcare University NHS Foundation Trust  UKSC 43. That case confirmed that the approach in Patel v Mirza applies across the civil law. The Supreme Court clarified that the policy-based reasoning in Gray was sound. The ‘trio of considerations’ test therefore produces the same effect as the wide and narrow rule.