As was widely reported in the mainstream press, the Court of Appeal recently decided that a victim of the Ladbroke Grove rail crash in 1999, who suffered from consequent post traumatic stress disorder and went on to commit manslaughter in 2001, can nevertheless claim for loss of earnings both prior to and following the killing notwithstanding that he remains detained, following his conviction, in a secure hospital under the Mental Health Act.

The claim for loss of earnings after his conviction had been defeated on the grounds that it was contrary to the illegality defence since it was closely connected, or inextricably bound up, with the claimant's commission of manslaughter.

According to a clearly sympathetic Court of Appeal, however, the claimant was claiming for loss of earnings as a result of the accident, and not as a result of his detention, although it is not clear if this meant that the Court of Appeal considered that he would have suffered this loss of earnings whether or not he had committed the crime; the claimant had, in fact, been in work at the time of the manslaughter.

Comment

This case again raises questions on the application of the illegality defence. The Court of Appeal recently decided that a company cannot claim against its auditors for failure to detect and report the company's own fraud (for our LawNow on that case, please click here). In that case the Court of Appeal approved the reliance test: a claimant cannot bring a claim where it relies on its own illegal conduct. In this case, as noted above, where the claimant's cause of action arose out of the crash (rather than his own illegal act) the Court of Appeal adopted a wider test - namely, is the claimant's claim closely connected with or inextricably linked to his own criminal conduct? - but said that a judge would have to decide on the evidence whether the manslaughter broke the chain of causation in respect of the claimant's claim for loss of earnings after his detention.

One direct effect of this decision is to expose liability insurers to claims for damages by virtue of being liable to compensate victims of accidents for loss of earnings as a result of those accidents, even when they have gone on to commit crimes at least where those crimes can be said to be a direct result of injuries (most likely to be psychiatric or psychological conditions) caused by the accident.

The Court of Appeal also suggested that this exposure could go even further; they described a scenario in which an accident victim, suffering depression, commits suicide by jumping off a building, but pushes someone else off first; the Court of Appeal said that it was not clear why the dependents of both could not recover damages from whoever had caused the accident giving rise to the depression.

This area is undoubtedly a difficult one, especially since the Court of Appeal's rationale is not easy to discern, and this decision has attracted controversy. The Court of Appeal accepted that there was "something to be said" for public policy considerations "to be revisited" given that it was now conceivable from a clinical perspective that the consequences of an accident could cause a person to commit murder.

Given these two very recent decisions of the Court of Appeal it may well be that the time is right for the House of Lords to clarify this area of the law although as matters stand it appears that where a party voluntarily assumes the role of villain he will be caught by the illegality defence and any claim arising from the criminal act will be struck out. Where, however, a party commits a criminal act as a result of the fault of another, this decision suggests that damages suffered subsequent to that criminal act (subject to causation and other issues) may well be recoverable.

Further reading: Gray v Thames Trains Limited [2008] EWCA Civ 713

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 07/07/2008.