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July 30, 2008

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Rail-crash victim-turned-killer wins damages

A survivor of the Ladbroke Grive train crash, who claimed that the trauma he suffered after the incident led him to kill, has won an appeal against a court ruling that refused him damages for loss of earnings after committing the crime.

The landmark decision could see companies facing increased liabilities for psychological injuries caused by businesses to employees and third parties.

Kerrie Gray received only minor physical injuries in the October 1999 train crash in which 31 people died, but suffered severe post-traumatic stress disorder (PTSD). Described in court as someone who avoided confrontation whenever possible, the distress caused him to undergo a major personality change, culminating in him stabbing a stranger to death in August 2001. In April 2002, he admitted manslaughter, on grounds of diminished responsibility, and was ordered to be detained in a hospital under the Mental Health Act, where he remains to this day.

Gray brought a claim for damages against Thames Trains and Network Rail Infrastructure (formerly Railtrack) on the basis that his PTSD, which was caused by the companies’ negligence, prevented him from earning as much as he would have done had he not suffered the illness.

Thames Trains and Network Rail Infrastructure accepted liability for Gray’s loss of earnings up to when the killing occurred, but argued liability then stopped on the basis of ex turpi causa — the principle that no benefit can derive from an evil act. Their case was originally upheld by a hearing, which concluded that Gray’s claim was linked to his own criminal conduct. But this decision has now been overturned on the basis that Gray was simply seeking compensation for loss of earnings as a result of his illness, and that the manslaughter was unconnected.

Alison Newstead, a solicitor at Shook, Hardy & Bacon Int LLP, described the case as “a new chapter in the Courts’ recognition of responsibility for losses associated with mental-health issues”. She told SHP: “At its extreme, employers may be faced with a loss-of-earnings claim from a stressed employee who is imprisoned for a ‘road rage’ offence, and thus sees his or her chances of future employment — and thus, earning capacity — reduced.”

She said the decision in the Gray ruling has parallels with a recent case in which IBC Vehicles was found responsible for the suicide of an employee, Mr Corr, following a period of depression after an industrial accident.

Explained Newstead: “This trend in liability may be a stark warning that employers (and their insurers) could increasingly be held responsible for unforeseen consequences of the mental health problems of employees and accident victims.

As the Court stated in Gray, the medical profession’s understanding of clinical depression — and in particular PTSD — has developed considerably in the last few years. As a result, the traditional application of ex turpi causa is being reappraised.”

However, she warned that businesses should not be unduly alarmed, as “potential claimants will still need to establish causation based on medical evidence — a hurdle which is often difficult to overcome”, and that “any such a crime committed as a result of psychological injury would need to be direct and foreseeable”.

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