No compensation for loss arising from a claimant's criminal activity - DAC Beachcroft

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No compensation for loss arising from a claimant's criminal activity

Published 19 diciembre 2016

DAC Beachcroft has successfully defended a clinical negligence claim where the Claimant's loss arose from her own criminal conduct. Conduct which, it is alleged, would not have occurred were it not for deficiencies in the psychiatric care provided by the Defendant.

The circumstances which led to the case of Ecila Henderson v Dorset Healthcare University NHS Foundation Trust [2016] EWHC 3275 (QB) are as harrowing as they are tragic. Miss Henderson had long been battling the effects of schizophrenia. She had been receiving care, both as an inpatient and in the community, from the Defendant NHS Trust. It was known to the Defendant that if Miss Henderson's condition should deteriorate then it should have a low threshold for recalling her to inpatient care. Her condition did deteriorate, and steps were taken to reassess Miss Henderson but (as was recognised in the report of an independent review) these steps were inadequate.

Tragically, several hours before the Defendant planned to reassess her, and while she was labouring under the effects of a psychotic episode, Miss Henderson stabbed her mother, resulting in death. As a result Miss Henderson was convicted of manslaughter by way of diminished responsibility. The psychiatrists in the criminal proceedings agreeing that she knew what she was doing and knew that it was wrong. Miss Henderson was held to have some responsibility for her mother's death and was remitted to a secure psychiatric hospital for treatment.

Miss Henderson then sought compensation from the Defendant for a range of losses including the loss of inheritance under her mother's will, and an award for the time spent incarcerated.

The case raised an important point of principle. If a person has some responsibility for their conduct, such that they are convicted of a very serious crime, should that person be compensated for the effects of their criminal conduct? Put another way, would it be right for the state with one hand to convict a person of a crime, but with the other hand to compensate them for the effects of that crime? Our case was that a long-standing legal principle known as illegality (or ex turpi causa) meant that the Court could not compensate a Claimant in circumstances such as this.

In a judgment handed down yesterday, Mr Justice Jay held that the High Court was bound to follow an earlier case from the Court of Appeal (Clunis v Camden & Islington Health Authority) where this firm had successfully defended a factually similar case which arose from the murder of Jonathan Zito. Miss Henderson had argued that Clunis was no longer good law because judicial attitudes to illegality had changed in recent years, but the Judge rejected that argument in full, noting that while Clunis' case had been considered by higher courts it had not been criticised by them.

This judgment illustrates that if harm arises from a Claimant's illegal act, then as long as the Claimant has some personal responsibility for their illegal act the law will not compensate them for the consequences of it. The Claimant intends to appeal.


Matthew McGrath

Matthew McGrath


+44 (0)1962 705 548

Mark Ashley

Mark Ashley

Bristol, Leeds

+44 (0) 117 918 2191

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