UK: Claimants Behaving Badly

Last Updated: 4 March 2009
Article by Mark Dickson, Partner

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 causation between the tort and the loss of earnings, then any loss of earnings after 19 August 2001 was not inextricably bound up with Mr Gray's illegal killing of the stranger.

The court accepted that Mr Gray would not have committed manslaughter if he had not suffered the PTSD caused by the tort. Consequently, the illegal act did not break the chain and Mr Gray was entitled to recover loss of earnings. The test in Tinsley was too narrow to apply to a case in tort: the Court of Appeal preferred a broader principle.

The Court of Appeal distinguished two earlier Court of Appeal cases – Clunis and Worrall – on the grounds that the losses suffered in those cases were a direct result of crime, rather than a foreseeable result of a breach of duty of care owed by the defendant. Clunis and Worrall would certainly stop a claimant recovering losses caused by compulsory detention in prison or hospital. But neither decision had looked at the question of whether the loss of earnings was caused by a defendant's negligence rather than a claimant's commission of a criminal offence and subsequent imprisonment.

Corr v IBC Vehicles Ltd

After arguments had been heard in the Gray case, the House of Lords gave judgment in Corr v IBC Vehicles Ltd (2008). Although this was a suicide case, it raised questions that could be important in Gray. The Court of Appeal therefore invited the parties to make written submissions about the issues in the House of Lords' decision.

In the Corr case, it was decided that the claimant's widow was entitled to damages for loss of dependency, as her husband's suicide did not break the chain of causation. The claimant had suffered serious injury at work and became severely depressed before committing suicide. The House of Lords unanimously decided that the claimant's depression was a reasonably foreseeable consequence of IBC Vehicles' breach of duty. The claimant did not have to show that the suicide itself was foreseeable. There was no break in the chain of causation, as the claimant's decision to commit suicide was caused by the depression resulting from the breach of duty.

Contributory negligence

In Corr, the House of Lords unanimously held that suicide was "fault" within the meaning of section 1(1) of the Law Reform Miscellaneous Act 1945 (the Act) and therefore a finding of contributory negligence could be made. Although the law lords did not reduce the compensation payable in this particular instance, they agreed that it might sometimes be appropriate to cut down the damages payable in similar cases.

Following Corr, the Court of Appeal in Gray also considered the possibility of contributory negligence on the basis that the manslaughter was "fault" within the meaning of the Act. The loss of earnings was caused partly by the tort and partly by the claimant's deliberate act of stabbing a stranger. Therefore both parties were blameworthy. Rather than condoning the manslaughter, the court considered that apportionment would ensure the claimant only recovered losses for which the defendants were truly responsible. As the issues of foreseeability, causation and contributory negligence had not been pleaded or argued (only having been considered in the light of Corr), the Court of Appeal felt that the case ought to be remitted back to the High Court for consideration of these issues.


The Gray case did not involve a break in the chain of causation. On the evidence, the claimant would not have committed manslaughter without suffering from the PTSD caused by the defendant's negligence.

Both sides agreed that if the claimant had committed a crime that was unrelated to the PTSD and unconnected to the defendant's negligence, there would have been a complete defence to the claim for loss of earnings. However, as a matter of principle, if it is right to stop a claimant from recovering damages, the court should not decide that there was a break in the chain of causation. Instead, the court should say in clear terms that public policy requires that the claim should fail.

It is debatable whether the simple "but for" test of causation – tempered by apportionment of liability through contributory fault – is a good way of dealing with such extreme cases.

This point was considered by the New South Wales Court of Appeal in State Rail Authority of NSW v Wiegold (1991). This case decided that, where a claimant has been convicted of a crime, they should bear both the direct and indirect consequences. Consequently, damages could not possibly be recovered for a period of incarceration. The Australian court rightly pointed out the potential harm to the justice system if the law of negligence said that an offender:

  • should not be held responsible for their actions; and
  • (just to add injury to insult) should also be compensated by the defendant.

This would lead to a conflict between the civil and criminal law and bring the law into disrepute.

There is one other factor that the Court of Appeal appears to have ignored. There is a well-established principle (hallowed by previous House of Lords' decisions) that where the claimant experiences a change in circumstances since the cause of action arose – or the original act of negligence happened – the court will look at the actual position as known. It will not speculate about what might have happened if that change of circumstance had not taken place. In Gray, the Court of Appeal tackled the claim for continuing loss on the basis that the claimant would have been in employment both before and after commission of the offence and was therefore entitled to recover the whole of that loss. However, this approach looks little more than a way of ignoring the commission of a serious criminal offence when assessing damages.

Leave to appeal to the House of Lords has been granted to Thames Trains and their fellow defendants Network Rail Infrastructure Ltd (better known under their former name of Railtrack). Leave to cross-appeal has also been given to Mr Gray. It remains to be seen whether the House of Lords will choose to reassert the ex turpi principle, thereby limiting the loss that can be recovered in a personal injury action where the claimant has committed a serious criminal act for which he can fairly be held responsible.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.