Claimants Behaving Badly

Does the illegality doctrine apply to tort

claims?

When might a defence based on the ex turpi or

illegality principle be successful in a tort case? The ex

turpi rule (or ex turpi causa non oritor actio, to

give the principle its full name) is that no legal action based on

illegality can succeed.

For many years, the courts adopted a flexible approach to the

principle in tort cases, as the seriousness of the illegality could

vary. A public conscience test was developed. In Tinsley v

Milligan (1993), the House of Lords applied a test based on

reliance: did the claimant have to rely on their own illegality in

order to pursue their claim? If so, the claim would fail.

Tinsley was a property rights case, though. Two recent

decisions have examined how far the Tinsley principle

applies to tort claims.

Gray v Thames Trains Ltd

The first case is the Court of Appeal decision in Gray v

Thames Trains Ltd (2008). Mr Gray was a victim of the Ladbroke

Grove rail crash in October 1999. Although he suffered fairly minor

physical injuries, the accident had a significant psychological

effect upon him – post-traumatic stress disorder (PTSD)

with a marked depressive component. The defendants admitted

liability.

Subsequently, on 19 August 2001, Mr Gray stabbed a stranger to

death – an act which was completely out of keeping with

his previous character. Mr Gray pleaded guilty to manslaughter on

the grounds of diminished responsibility and was detained under the

Mental Health Act 1983. He later claimed damages from the defendant

train companies, including loss of earnings arising from the rail

crash.

The defendants accepted they were liable for losses up to 19

August 2001. However, they denied liability for losses after that

date on the grounds of the claimant's illegal action. At trial,

Mr Justice Flaux rejected Mr Gray's claim. He ruled that a

claimant breaches the ex turpi principle if their claim is

closely connected to – or is inextricably bound up with

– their own criminal or illegal conduct. This was the

position in Mr Gray's case.

The Court of Appeal reversed Mr Justice Flaux's decision. It

said that if Mr Gray had been convicted of an offence unconnected

to the PTSD, the chain of causation would have been broken and the

defendants would have had a defence. The key question was whether a

claimant's loss was so closely connected to – or

inextricably bound up with – their criminal or illegal

conduct that the court could not allow them to recover damages

without appearing to condone their behaviour. If the manslaughter

did not break the chain of...