Lindsey Connett, associate at Enable Law, examines the case of Henderson v Dorset Healthcare University NHS Foundation Trust, in which the court considered the precedent establishing that a claimant is barred from recovering compensation if the cause of the damage was their own criminal act.
Henderson (a protected party, by her Litigation Friend the Official Solicitor) v Dorset Healthcare University NHS Foundation Trust  EWCA Civ 1841
What are the practical implications of this case?
The findings of the courts in Clunis v Camden and Islington Health Authority  QB 978,  3 All ER 180 and Gray v Thames Trains Ltd  UKHL 33,  All ER (D) 162 (Jun) remain good law. A claimant is barred from recovering compensation if the cause of the damage was their own criminal act. The level of responsibility that a claimant may or may not have had at the time they committed the offence is immaterial. A defence of diminished responsibility accepts some level of responsibility, however small that level might be, and that will be sufficient to defeat the claim for damages on public policy grounds, even in cases where the defendant Trust has admitted liability. This therefore means that, on a practical level, cases for those individuals such as the claimant in this case (where the death of another person is involved) are unlikely to succeed because of public policy arguments.
What was the background of the case?
The claimant had a long history of mental health difficulties arising from her diagnosis of paranoid schizophrenia and had various admissions to hospitals—both as a voluntary and detained patient. Between April 2006 and June 2008, she was detained at a hospital operated by the defendant Trust pursuant to section 3 of the Mental Health Act 1983 (MeHA 1983). She was discharged in June 2008 (under MeHA 1983, s 17 leave) and placed on a community treatment order in January 2009.
In November 2009, she had moved to supported living and was under the care of the local community mental health team. On or around 13 August 2010, she began to experience a relapse in her condition and missed an appointment with her community nurse for her depot medication. On 20 August she failed to attend her voluntary work placement and on 23 August missed an occupational therapy appointment. Her housing support worker contacted the defendant Trust, stating that the claimant was agitated and unlike her normal self. The Trust indicated that the claimant could not be assessed until 25 August. On 24 August, the housing support worker called again as the claimant was deteriorating. She was told she would be updated in due course.
On 25 August, one of the claimant’s work colleagues attended at her home. A short while later the claimant’s mother arrived. She expressed concern about her daughter, who she had not been able to contact for a number of days. She was unable to convince her daughter to open the door to her flat, so went downstairs to make a call. The claimant then exited the block of flats and stabbed her mother 22 times. The claimant was then later detained by the police, having fled the scene with the knife.
The claimant was charged with the murder of her mother and pleaded guilty to manslaughter by reason of diminished responsibility. She was made the subject of a hospital order with an unlimited restriction. She remains in detention and is not expected to be released in the foreseeable future.
The claimant brought a claim against the defendant Trust for personal injury on the basis that had she been provided with adequate care and treatment, the death of her mother could have been avoided and she would not have been detained indefinitely. She claimed general damages for pain suffering and loss of amenity, as well as damages for loss of liberty, and special damages including future losses for psychotherapeutic treatment arising from the death of her mother.
The Trust admitted liability but disputed that the claimant was entitled to any damages by reason of illegality and/or public policy grounds.
What did the court decide?
At first instance, the court found in favour of the Trust, dismissing the claim for reasons of illegality and finding that the claimant was not able to succeed in a claim that arose from her illegal act and subsequent conviction. It was held that there was no reason to go behind the sentencing remarks of the criminal judge and it would be against public policy to allow the claimant to re-open the basis of her conviction by seeking to lay the full responsibility at the door of the Trust. It was also held that the binding authority of the Court of Appeal in Clunis v Camden and the House of Lords in Gray v Thames Trains Ltd remained good law when determining cases involving illegality.
The claimant (through her litigation friend) appealed on the basis that the judge at first instance had incorrectly applied Clunis and Gray by way of failing to take into account the findings in Patel v Mirza  UKSC 42,  All ER (D) 91 (Jul) and, in any event, had wrongly concluded that he had to be bound by Gray.
The claimant sought to distinguish her case from those of Clunis and Gray by arguing that it only applied to those who had significant responsibility for their actions. The claimant argued that her mental condition at the time of the offence meant that she had little or no responsibility for her actions. The Court of Appeal dismissed this argument by commenting that the defence of diminished responsibility acknowledges some level of responsibility, albeit covering a range of levels. If the claimant had sought to establish that she had no responsibility for her actions, then she should have utilised the defence of insanity—a complete defence. In pleading guilty by way of diminished responsibility, the claimant had accepted that she bore some responsibility—however small—for her actions in the death of her mother and she could not seek to change that through the civil courts.
The claimant also sought to establish that the precedent set in Patel applied to all cases of illegality. This too was dismissed by the Court of Appeal. It was held that Patel had not changed the precedent set in Clunis and Gray. While the court in Patel had considered both cases, there was no suggestion that either had been wrongly decided. They remain good law.
It was held that the claimant’s claim on all heads of damage would fail because of the doctrine of illegality and for public policy reasons:
If the tortious conduct of the defendant merely provided the occasion or opportunity for the killing, but (in causation terms) the immediate cause of the damage was the criminal act of the claimant, it is offensive to public notions of the fair distribution of resources that a claimant should be compensated (usually out of public funds) for such damage’.
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