Background

Courts usually deny negligence claims if the losses arise out of the claimant’s own illegal acts. This is known as the common law illegality doctrine. Recently in Ecila Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43, the UK Supreme Court (the “Supreme Court”) revisited the issue of whether the Appellant, who killed her mother during a psychotic episode, should be allowed to recover damages for the losses she suffered as a result of her own crime.

The facts

The Appellant has been suffering from paranoid schizophrenia. In 2010, she stabbed her mother to death during a serious psychotic episode, and was charged with murder. Because of the psychiatric evidence presented, the criminal court accepted a plea of manslaughter by reason of diminished responsibility. She was then sentenced to a hospital order and an unlimited restriction order, and has remained subject to detention ever since and not expected to be released in the near future.

The Appellant wished to claim in tort against the Respondent hospital trust for damages flowing from such tragic events as a result of its negligence for failing to make the Appellant return to hospital for treatment before the killing took place. It was agreed between the parties that had the Respondent done so, the killing would not have occurred. The damages claimed by the Appellant included those for loss of liberty in relation to the hospital detention and damages for losses arising from the killing, including the forfeiture of inheritance from her mother’s estate and the Appellant’s own post-traumatic stress disorder (“PTSD”).

Procedural history

In the lower courts proceedings, it was ruled that the facts were materially identical to those in Clunis v Camden and Islington Health Authority [1998] QB 978 and Gray v Thames Trains Ltd [2009] UKHL 33; [2009] AC 1339 and that those decisions were binding on the courts below.

Clunis concerned a man claiming against the local hospital authority for loss of liberty after he stabbed another man to death after being discharged from a hospital where he had been detained for mental disorder treatment. Gray concerned a survivor of a major railway accident claiming in negligence against the train company and the train operator after he killed a man while suffering from PTSD caused by the accident. In both cases, the claims failed due to the operation of the illegality doctrine: one cannot recover damages flowing from loss of liberty etc. in consequence of one’s own unlawful act. It is a matter of penal policy that there will be inconsistency between civil and criminal law if a criminal can be compensated for the consequences of his own crime.

The Appellant, in lodging the present appeal to the Supreme Court, sought to depart from Gray and instead persuade the Supreme Court in applying the more flexible “trio of considerations” policy test set out in Patel v Mirza [2016] UKSC 42. The gist of such argument is that, a claim that is potentially subject to the illegality doctrine could possibly be enforced if the court does not think the integrity of the legal system will be harmed by doing so. There are three considerations under such a test laid out in Patel:

1.        the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by the denial of the claim;

2.        any other relevant public policy on which the denial of the claim may have an impact; and

3.        whether the denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts. 

The Appellant further submitted that Patel represented a policy-based approach to the use of the illegality doctrine, which is more flexible than the rule-based approach in Gray. The Supreme Court should therefore adopt Patel because it allows for the court to consider the particular circumstances of the case, such as the degree of the Appellant’s personal responsibility.

In addition, the Appellant also argued that in fact she had no significant personal responsibility for the crime she committed because of her condition, and so the illegality doctrine should not be invoked when considering the blameworthiness of the Appellant.

The Supreme Court’s ruling

The Supreme Court rejected the appeal.

First and foremost, it ruled that Gray cannot be distinguished from the facts in the present case because both cases involved the same offence and the same sentence.

Next, the Supreme Court held that Gray in fact is consistent with the approach adopted in Patel, in that Gray also endorsed the use of policy considerations in the application of the illegality doctrine. The fundamental policy consideration relied upon in Gray was the need for consistency so as to maintain the integrity of the legal system, the very matter that was held in Patel to be the underlying policy question.

Additionally, the Supreme Court in fact stated that there will be a clear risk of inconsistent decisions being reached in the criminal and the civil courts, if the trial judge in the civil case is able to determine the degree of personal responsibility. Consistency between the criminal and civil courts remained vital in preserving the integrity of the legal system, and the civil court should not allow recovery if the counterpart criminal court in fact imposed punishment.

Another point made by the Supreme Court was that it did not agree with the Appellant’s argument that there was no significant personal responsibility for the crime she committed. A conviction for manslaughter by diminished responsibility did not, unlike for instance where insanity is involved, remove a person’s personal responsibility. Expert psychiatric evidence in fact provided that at the time of the offence, the Appellant still knew that her actions were wrong and therefore continued to hold some degree of responsibility. Thus, no significance could be attached to the fact that no penal sentence had been imposed by the criminal court.

Finally, the Supreme Court held that the killing is central to all heads of losses claimed and is the effective cause of such losses. Whilst the Appellant may not bear a significant degree of responsibility for what she did, she knew what she was doing and that it was morally and legally wrong. As such, the denial of the claim would not be disproportionate, given the illegality involved in the facts behind the present claim.

Takeaways

Going forward, we can still expect the civil court to not allow similar claims in negligence where the very facts underlying such claims involve criminal elements. The courts are minded to maintain consistency within the legal system and only in very rare circumstances that the illegality doctrine would not operate to preclude such claims in tort.