When the victim of a large-scale train crash becomes subject to a manslaughter charge, the latent need for compensatory remedy is awoken with claims for damages stemming from the punishment dispensed by the courts.
Public policy, pain and suffering, diminished responsibility and the intricacies of criminal sentencing, are all brought to bear in a case broaching tortious claims and unlawful actions.
In 1999, the now cross-appellant, was one of a number of survivors travelling on the Thames Trains Turbo Train when it collided with a First Great Western High Speed Train near Paddington Station.
Known as the ‘Ladbroke Grove Train Crash’, the aftermath left thirty-one people dead and another five hundred injured.
Fortunate enough to sustain only minor injuries, the appellant later attempted to return to normality, despite suffering from panic attacks, mood swings, flashbacks, nightmares and grief symptoms; although within a number of months, he found himself unable to cope with work, travel, social interaction and even close relationships.
After unsuccessfully attempting to hold down a number of jobs, the appellant wound up unemployed and a semi-functioning alcoholic, while it was during this period that he was attacked by a drunken stranger while driving his car.
After leaving the car to defend himself, the appellant was further subjected to hostile behaviour by a passing group; after which, he drove away in state of heightened fear.
Shortly afterwards, the appellant stole a knife from his partner’s parents, before finding the man and stabbing him repeatedly.
After the victim later died of his injuries, the appellant turned himself in, and was summarily convicted of manslaughter on grounds of diminished responsibility.
In passing sentence, the court chose to detain him using a section 37 hospital order and section 41 restriction order under the Mental Health Act 1983.
Such decisions were typical in instances where a defendant is found guilty of a criminal act while suffering from a recognised psychological abnormality; which in this case, had been established as Post-Traumatic Stress Disorder (PTSD) by a psychiatrist during the trial.
Roughly five years after his conviction, the appellant initiated proceedings against the respondents Thames Trains and Network Rail, for lost earnings arising from the PTSD during the period between the accident and his incarceration.
However, the claim was then extended to include lost future earnings as well as those during the period before and after the trial.
Relying upon the maxim ‘ex dolo malo non oritur actio’, meaning:
“No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted.”
The respondents made clear that while they admitted full liability for the period between the accident and the unlawful act, they were protected by public policy not to compensate a party who relied upon their own misdeeds when laying claim.
While there had been numerous cases touching upon the indivisible nature of tort and criminal matters, strong argument for the ‘novus actus interveniens’ principle suggested that tortious claims preceding criminal acts were by virtue of the unlawful event, separable and therefore distinct.
This gave rise to the notion that liability could extend only so far as the symptoms directly appropriate to, and displayed by the claimant, in relation to the cause of the tort.
However, it was equally held that whatever separating act took place, it must be of such magnitude that it ‘obliterates’ the wrong doing of the defendant’.
On this occasion, it was held by the appellant that without the accident and concluding PTSD, there would have been no loss of earnings, and no act of manslaughter, and so without sufficient evidence to the contrary, the respondents were still liable for the compensation claimed.
In the first instance, the judge awarded in favour of the appellant, while the Court of Appeal reversed the decision and allowed the respondents’ appeal.
Taken to the House of Lords, the appellant then cross-appealed, while the respondents pursued the same ends as before.
Having examined the position taken by the Court of Appeal, the House gave consideration to the manner of sentencing, and the rights of those convicted to claim for loss of earnings.
In R v Birch, Mustill LJ examined the principles behind section 37 hospital orders before explaining that:
“A hospital order is not a punishment. Questions of retribution and deterrence, whether personal or general, are immaterial. The offender who has become a patient is not kept on any kind of leash by the court, as he is when he consents to a probation order with a condition of inpatient treatment.”R v Birch
However, when coupled with a section 41 restriction order, it was further noted that:
“A restriction order has no existence independently of the hospital order to which it relates; it is not a separate means of disposal. Nevertheless, it fundamentally affects the circumstances in which the patient is detained. No longer is the offender regarded simply as a patient whose interests are paramount. No longer is the control of him handed over unconditionally to the hospital authorities. Instead the interests of public safety are regarded by transferring the responsibility for discharge from the responsible medical officer and the hospital to the Secretary of State alone (before 30 September 1983) and now to the Secretary of State and the Mental Health Review Tribunal.”
This meant that instead of proving an exception to the rule of unlawful conduct, the appellant was instead denied his right to earnings while detained, as was illustrated in British Columbia v Zastowny, where the Supreme Court held that:
“When a person receives a criminal sanction, he or she is subject to a criminal penalty as well as the civil consequences that are the natural result of the criminal sanction. The consequences of imprisonment include wage loss.”British Columbia v Zastowny
This line or argument was bolstered by the outcome of Clunis v Camden and Islington Health Authority; in which, a former patient stabbed an innocent stranger within days of their release, before claiming diminished responsibility and suing the local authority for negligence.
There, it was held that:
“A plea of diminished responsibility accepts that the accused’s mental responsibility is substantially impaired but it does not remove liability for his criminal act . . . The court ought not to allow itself to be made an instrument to enforce obligations alleged to arise out of the plaintiff’s own criminal act…”Clunis v Camden and Islington Health Authority
This decision had been given full support of the Law Commission in its consultation paper ‘The Illegality of Defence in Tort’; and so, it was for these reasons that the House reversed the decision of the Court of Appeal in lieu of the original judgment, and allowed the respondents’ appeal, while reminding the parties that:
“[A] civil court will not award damages to compensate a claimant for an injury or disadvantage which the criminal courts of the same jurisdiction have imposed on him by way of punishment for a criminal act for which he was responsible.”