Loss of Earnings claim not defeated by Claimant’s subsequent Criminal Conduct – Kerrie Gray v Thames Trains (1) and Network Rail (2) CA 2008 EWCA Civ 713

The Claimant was a victim of the Ladbrooke Grove rail crash. He suffered minor physical injuries but developed Post Traumatic Stress Disorder. Approximately two years after the crash in August 2001 the Claimant stabbed a stranger to death. He pleaded guilty to manslaughter on the grounds of diminished responsibility and was detained under the Mental Health Act. The Claimant claimed loss of earnings both for the period between the accident and the manslaughter and for the period after the manslaughter.

Liability for the crash was admitted and the Defendants further admitted that they were liable in principle for the loss of earnings suffered by the Claimant up until he committed the manslaughter. However the Defendants denied liability for any loss of earnings that occurred after the manslaughter citing the doctrine of “ex turpi causa” (an action may not be founded upon illegality). The Judge at first instance found that the loss of earnings claim was precluded on grounds of public policy, as the claim was inextricably bound up with the Claimant’s criminal conduct. The Claimant was given leave to appeal and the matter came before the Court of Appeal on 25 June 2008.

The Court of Appeal accepted the Claimant’s case that he had suffered a loss, but for the Defendant’s negligence he would have earned money both before and after the manslaughter. As a result the Court of Appeal found that the manslaughter was not inextricably bound up with the loss of earnings claim.

The case could be distinguished from the decision in Clunis v Camden and Islington HA because in this case the loss of earnings was caused by the original accident and not (as in Clunis) by the commission of the criminal offence and the Claimant’s subsequent imprisonment. Consequently there were no public policy reasons why recovery should be prohibited.

As the issues of foreseeability, causation and contributory negligence had not been considered by the court below the matter was remitted to the High Court for further submissions on these points.

Comment

It is clear that a defence of ex turpi causa will rarely be available to Defendants. It will be confined to cases such as Clunis where the Claimant’s losses arise solely out of his own criminal conduct.

Whilst the Court of Appeal was not prepared to preclude the loss of earnings claim for public policy reasons, it deliberately left the door open for Defendants to raise alternative arguments particularly over Contributory Negligence. As such it mirrors the judgement given by the House of Lords in Corr v IBC Vehicles Ltd (2008) UKHL 13 (see the March edition of Claims on line).

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No Common Law duty to provide Cot-Sides - Sandford and Scherer v Waltham Forest London Borough Council

Mrs Sandford had suffered a fall in her home and had broken her leg. She remained in hospital for seven months and when she was discharged she became resident in a nursing home where she subsequently died..

At the time of the fall Mrs Sandford was aged 91 years and was in poor health. Her local council had already undertaken an assessment of her care needs and it had been recommended that the Local Council provide various aids and equipment, including cot sides. At the time the fall occurred (some two months after the assessment) the cot-sides had not been provided.

After her death Mrs Sandford’s executors brought a claim against the Local Authority in an attempt to recover the sums that she had contributed towards her nursing home costs and an amount for her pain and suffering. The executors claimed that she would not have fallen out of bed and suffered the fracture if cotsides had been provided.

The issue before the court was whether the executors had a cause of action against the Local Authority for failing to supply the cotsides.

The Court held that although the Local Authority had a duty to assess needs and provide aids and equipment, this did not give rise to any statutory duty that was actionable by a private individual. (Rowley v Secretary of State for Work and Pensions (2007) EWCA Civ 598, (2007) 1 WLR 2861). Further the Local Authority did not owe Mrs Stanford a common law duty of care as it would be ridiculous to hold that the statutory duty was not actionable by a private individual and then find that there was a duty of care at common law in precisely the same terms.

Comment

This decision must come as a considerable relief to Public Authorities and those who advise them. It endorses the approach that the courts have previously taken which is that although private individuals can bring an application for judicial review to force Authorities to provide services, they cannot claim damages for losses arising out of the failure to provide those services.

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Wrong to Strike out a claim on the basis that Public Authorities were exempt from Common Law liability

AK v Central & North West London Mental Health NHS Trust (1) and Kensington & Chelsea Royal London Borough Council (2008)

The Claimant had been admitted to a psychiatric facility and had been diagnosed with paranoid schizophrenia. Whilst in bed and breakfast accommodation he had jumped from a second floor window and suffered serious injuries.

One of the claims advanced by the Claimant was that the Local Authority had negligently failed to provide after-care services in accordance with their statutory duty under the Section 117 of the Mental Health Act 1983. He had further claimed that there had been a breach of his rights under Articles 2, 3 and 8 of the European Convention on Human Rights.

At an early stage the claim had been struck out by Master Eyre on the basis that there was no right of action for breach of a statutory duty to provide after-care under s.117 of the MHA.

On appeal the Claimant argued that: -

		the absolute exclusion of a common law duty of care in the exercise of the statutory duty under s117 of the Act was no longer tenable and the claim should not have been struck out without an investigation of the facts;
		there was an arguable case on Causation;
		the Human Rights Act was still a developing area of law and unless a claim was certain to fail, it should not be struck out.

The court found that the Master had been wrong to strike out the claim. It was at least arguable that the Defendants were directly responsible for aspects of the Claimant’s ongoing care and there was therefore at least some prospect that the claim might succeed, though the court accepted that it would be fraught with difficulties. The court further found that the Claimant’s case on causation was not hopelessly weak.

In relation to the Human Right Act claims, the court found that the Master had been right to strike out the article 2 claim. However there had been no reason not to allow the article 3 and article 8 claims to continue.

Comment

There are difficulties in reconciling this decision with the decision in Sandford v Waltham Forest London Borough Council (which is discussed elsewhere in this edition). In AK Mr Justice King, found that there was at least some prospect that a claim arising out of the Local Authority’s failure to provide after care in accordance with its statutory duty might succeed. By contrast in Sandford HHJ Seymour found that a statutory duty to supply aids and equipment did not give rise to a common law duty of care.

It should be noted that although the judgement in AK was handed after the decision in Sandford, AK had been heard several months before Sandford. The particular statutory duties in the two cases are also very different and it should be remembered that in AK to successfully appeal against the summary judgement the Claimant only had to show that he had some prospect of success. This remains a developing area of law and it is doubtful that the first instance decisions in these cases will be the final word.

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