The Court of Appeal has unanimously rejected a compensation claim brought by a schizophrenic woman who stabbed her mother to death.
Elicia Henderson, who is not expected to be released from mental hospital for “some significant time”, argued that Dorset Healthcare University NHS Foundation Trust should pay substantial damages for negligence.
In a joint ruling, the Master of the Rolls, Sir Terence Etherton, the Senior President of Tribunals, Sir Ernest Ryder, and Lady Justice Macur upheld the High Court’s ruling that the claim was barred for illegality.
The appeal judges said that following the mother’s death in 2010, an independent investigation found failings by the NHS trust in Ms Henderson’s care and treatment and that a “serious untoward incident” was foreseeable.
“It is, therefore, common ground between the parties that this tragic event would not have happened but for the trust’s breaches of duty in failing to respond in an appropriate way to Ms Henderson’s mental collapse.”
The Court of Appeal heard in Henderson v Dorset Healthcare University NHS Foundation Trust  EWCA Civ 1841 that Ms Henderson, who was born in 1971, began experiencing mental health problems in 1995.
She was charged with murdering her mother, but taking into account the opinions of two psychiatrists, the prosecution accepted a plea of manslaughter by reason of diminished responsibility.
Mr Justice Foskett, as he then was, made a hospital order under the Mental Health Act 1983.
Acting as litigation friend, the Official Solicitor issued proceedings on behalf of Ms Henderson in 2013, claiming damages under six heads.
These included general damages for personal injury, in the form of depression and post-traumatic stress disorder after killing her mother, along with damages for loss of liberty caused by her compulsory detention in a mental hospital.
A claim of just under £62,000 was made by Ms Henderson for not able to inherit a share in her mother’s estate.
The NHS trust accepted liability, but argued that the entirety of the claim should be defeated on illegality or public policy grounds.
Nicholas Bowne QC, counsel for Ms Henderson, argued that the trial judge, Mr Justice Jay, was wrong to conclude that he was bound by the leading Court of Appeal case of Clunis v Camden and Islington Health Authority and the ruling of the House of Lords in Gray v Thames Trains.
However, the appeal judges held that Clunis was “binding authority” for the proposition that the defence of illegality barred that part of Ms Henderson’s claim for damages relating to loss of liberty.
Turning to Gray, the judges said the law lords agreed that Clunis was correctly decided, and, in the context of a criminal conviction for unlawful killing, there was “a wider and a narrower form of public policy which precludes a claim by the killer from recovering damages in proceedings for negligence against the person whose act or omission is alleged to have been responsible for bringing about the claimant’s unlawful conduct in carrying out the killing”.
The appeal judges went on: “Third, the narrower form is that there can be no recovery for damage which flows from loss of liberty, a fine or other punishment lawfully imposed in consequence of the unlawful act since it is the law, as a matter of penal policy, which causes the damage and it would be inconsistent for the law to require compensation for that damage.
“Fourth, the wider form is a combination of public policy and causation. 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.
“The consequence of those principles, which bind this court, is that all the heads of loss claimed by Ms Henderson in the present case are barred as a matter of public policy.”
The appeal judges said it was clear that the law lords in Gray had “considered issues which might undermine the application of the rule of public policy applicable in situations such as that in Gray, Clunis and the present case”.
The law lords “considered the situation where the mental illness of a claimant in tort proceedings against a health authority meant that, despite the conviction for manslaughter which predicates that the claimant committed the offence with intent to kill or to cause grievous bodily harm, they bore no or insignificant responsibility for the killing”.
The Court of Appeal concluded: “As stated above, Lords Hoffmann, Roger and Scott were of the view that the claim against the health authority should, nevertheless, be barred on grounds of public policy. For those reasons, Gray remains binding on us and so does Clunis.”