Gray v Thames Trains: another causation Dilemma

In the recent case of Gray v Thames Trains [2009] UKHL 33, the House of Lords again grappled with the difficult questions of causation and public policy in tort law, in the context of psychiatric illness. The case dealt in particular with the application of the doctrine commonly formulated in Latin as ex turpi causa non oritur actio: an action does not arise out of a dishonourable cause. The House of Lords held that the ex turpi causa doctrine would operate in the circumstances of the case to relieve the tortfeasor of liability. The plaintiff had committed manslaughter in the context of a psychiatric illness caused by the tortfeasor’s negligence. The House of Lords left open the possibility that there might be scope for a plaintiff to recover for such loss, in certain circumstances. It is instructive to compare the case with the decision of Hunter Area Health Service v Presland (2005) 63 NSWLR 22 in which a majority in the New South Wales Court of Appeal appeared to close off altogether the possibility of recovery by such a plaintiff.