Gray v Thames Trains Ltd

In October 1999, two trains collided during morning rush hour, killing 31 persons and injuring 417 others. Kerrie Gray, a passenger in the rail crash, sustained serious psychological injuries. Two years later, a pedestrian stepped into the path of his car and Mr Gray stabbed the pedestrian to death. This case considered the liability of the railway company in relation to the consequences of Mr Gray’s shocking act of violence.

The Ladbroke Grove Rail Disaster

On a sunny autumn morning in 1999, a First Great Western train ran along the Great Western Main Line. Connecting London’s Paddington Station with the city of Bristol to the west, the Great Western Main Line—opened in 1841—was the vision of merchants in Bristol who desired a railway connection with London. Their usual method of transporting merchandise between the two cities—via the rivers and canals—faced the dual challenges of drought in the summer and frost in the winter. As a result, Bristol’s manufacturers and merchants were frequently shut out of the most important markets for their products.¹ Railway technology was seen as a solution to this problem.² One hundred and fifty-eight years later, railway technology would play a key role in one of the worst railway disasters in British history.

It was supposed to be a regular October morning for passengers on the First Great Western train that rolled through the Berkshire countryside towards London. A regular commute to work, however, was not something that these passengers would experience on this fateful day. The first irregularity was a welcome one. As the train headed towards the city, passengers were able to gaze out their windows and enjoy the bright blue and cloudless sky which was a rarity for this time of year.³ The second irregularity was much more deadly. As the train approached London’s Paddington Station, unbeknownst to its driver and passengers, another train ran a red signal and proceeded the wrong way down the same line, destined for a head-on collision with the First Great Western train. The train travelling down the wrong line was a Thames Trains service that had departed Paddington Station and was headed to Great Bedwyn, Wiltshire. The two trains collided at Ladbroke Grove at a combined speed of approximately 210 km/h.⁴

One of the passengers on the First Great Western train, Pam Warren, heard the sound of screeching metal-on-metal and felt her carriage jerk violently. She watched in horror as briefcases and coats flew around her carriage as it ’left the tracks and took on the feeling of the most extremely sickening roller-coaster’.⁵ The collision caused a rapid turbulent combustion as airborne diesel fuel within the coach was ignited.⁶ Pam Warren witnessed a huge ball of fire roar down the aisle towards her, before it engulfed her body. She suffered severe facial burns and, following the disaster, became known as ’the lady in the mask’—a name given to her by the media because of the clear Perspex mask that doctors required her to wear for 18 months following the collision.⁷

Another passenger on the First Great Western train, Greg Treverton-Jones, was a barrister. By a bizarre happenstance, Mr Treverton-Jones was, at the time of the collision, representing Great Western Trains at a public inquiry into the Southall rail crash which had taken place just two years prior, killing seven persons. Recalling a conversation with a passenger from the Southall rail crash who had demonstrated to Mr Treverton-Jones how he had survived that collision, Mr Treverton-Jones, now finding himself in an almost identical train disaster, got out of his seat and half-crouched in the aisle, copying the position that had been demonstrated to him.⁸

For Karl Hackett, a computer graphics worker based in Essex, the Ladbroke Grove rail disaster provided him with an opportunity to fake his own death in a desperate attempt to escape his criminal record as a sex offender and assume a new identity. Believing that he had been killed in the disaster, Mr Hackett’s devastated family attended a memorial service at the crash site in the days following the collision.⁹ It was later revealed that Mr Hackett had not even been on the train. Rather, upon hearing news of the crash, Mr Hackett had phoned an emergency line set up by police and reported himself as a missing passenger. For fifteen years, Mr Hackett had been able to escape his criminal record by assuming the identity of his former flatmate who had committed suicide. This identity theft would likely have continued undetected if Mr Hackett had not decided to try and use the train crash as an opportunity to kill-off his true identity for good. When he rang the police, pretending to be his former flatmate, it was discovered that the flatmate was dead and Mr Hackett’s web of lies was finally untangled.¹⁰

For the actual passengers on the First Great Western train and Thames Trains service, the events of 5 October 1999 changed their lives forever. Whilst Pam Warren and Greg Treverton-Jones both survived the rail disaster, the drivers of both trains were killed, along with 29 passengers.

The Manslaughter

Kerrie Gray was a passenger on the Thames Trains service on that fateful October morning. The physical injuries he sustained in the crash were relatively minor, comprising of lacerations to his eyelid and hand. He also had difficulty walking and driving for a short period of time following the disaster. The psychological impact of the crash upon Mr Gray, however, was much more severe.

Prior to the rail disaster, Kerrie Gray had lived a law-abiding life. He was in a long-term relationship, held a steady job, and had no history of violent behaviour. Following the crash, however, Mr Gray suffered severe post-traumatic stress disorder (PTSD) which had a profound impact on his life. He underwent a significant personality change, becoming withdrawn and prone to angry outbursts. He began to drink heavily, became anxious and depressed, and was only capable of working sporadically.

In August 2001, 22 months after the rail disaster, Mr Gray was driving his car in Essex when a drunk pedestrian, Mr Boultwood, stumbled into the roadway and into the path of Mr Gray’s car. Mr Boultwood then proceeded to punch the windows of Mr Gray’s car. A scuffle between the two men ensued but was quickly brought to an end by concerned bystanders. Mr Gray got back into his car and drove to his girlfriend’s parents’ house where he obtained a knife. He drove off again to look for Mr Boultwood and, upon locating him, stabbed him to death.

Mr Gray was charged with murder, however, following expert opinion that he was suffering from PTSD at the time of the killing, the prosecution accepted Mr Gray’s plea of guilty to manslaughter on the basis of diminished responsibility. The judge sentenced Mr Gray to be detained in hospital indefinitely.

The Legal Action

Mr Gray commenced an action in negligence against Thames Trains and Network Rail Infrastructure (the company responsible for maintaining and operating the railway infrastructure). The case came before the House of Lords and Mr Gray sought damages for his loss of liberty, feelings of guilt and remorse following the killing of Mr Boultwood, and damage to his reputation. He also sought damages for his loss of earnings during his detention, and future loss of earnings (based on the assumption he would be unlikely to find employment if, and when, he was released). In addition, Mr Gray sought an indemnity in respect of any liability that he might incur to Mr Boultwood’s dependants.

At its simplest, Mr Gray’s argument was that a chain of causation could be established between the rail disaster and his claimed losses. The defendants’ negligence had caused him to suffer PTSD which, in turn, had caused him to commit manslaughter, leading to his detention, and causing him to suffer the claimed losses.

The defendants admitted that they had breached the duty of care they owed to Mr Gray. However, they disputed Mr Gray’s entitlement to an indemnity and to damages in respect of the losses claimed. It was the defendants’ case that the illegality defence (ex turpi causa non oritur actio) prevented Mr Gray from obtaining compensation for the consequences of his own criminal act. As summarised by Lord Phillips of Worth Matravers:

“The appellants have always accepted liability to Mr Gray for his physical and mental injuries and the legal consequences of the latter. The issue has related to the extent of those consequences. The appellants’ case has been that those consequences came to an end when Mr Gray killed Mr Boultwood. Thereafter he has experienced the consequences of his own criminal act, in respect of which he can bring no claim on grounds, inter alia, of public policy.”

The Judgments

Gray v Thames Trains Ltd marked the first time that the House of Lords directly addressed the defence of illegality in a tort law claim.¹¹ The House unanimously found in favour of Thames Trains and Network Rail Infrastructure. The principal judgment was delivered by Lord Hoffmann who summarised the issue before the House as follows:

“On the one hand, but for the accident and the stress disorder which it caused, Mr Gray would not have killed and would therefore not have suffered the consequences for which he seeks compensation. On the other hand, the killing was a voluntary and deliberate act. The stress disorder diminished Mr Gray’s responsibility but did not extinguish it. By reason of his own acknowledged responsibility, Mr Gray committed the serious crime of manslaughter and made himself liable to the sentence of the court.”

In finding against Mr Gray, Lord Hoffmann distinguished between a narrow version and a wide version of the illegality defence. In its narrow form, the defence prevents a person from recovering for damage which flows from a sentence that has been lawfully imposed upon the person in consequence of their own unlawful act. The justification for this narrow version of the defence lies in the importance of coherence in the law. It would frustrate the goals of criminal law if an offender could use tort law to gain compensation for the consequences of the criminal punishment imposed upon them.¹²

In laying down the narrow version of the illegality defence, Lord Hoffmann was heavily influenced by the Australian case of State Rail Authority (NSW) v Wiegold (1991).¹³ In that case, Mr Wiegold was employed as maintenance linesman by the State Rail Authority of New South Wales. He sustained serious injuries when he slipped and fell down a rail embankment while carrying out night-time maintenance work on overhead electrical lines. The State Rail Authority had not provided Mr Wiegold with a serviceable torch, and the trial judge accepted that the accident was brought about by this failure. Following the cessation of his workers’ compensation payments, Mr Wiegold resorted to growing Indian hemp, claiming that he needed the money to feed his family and clothe his children. He was convicted for this cultivation and imprisoned for eight months. He was also dismissed by the State Rail Authority on the basis that he was unable to attend work whilst in prison. Mr Wiegold brought a claim against the State Rail Authority for his loss of earnings whilst in prison and afterwards. The trial judge found in favour of Mr Wiegold on the basis that he was induced into a criminal enterprise by his impecuniosity which flowed from the accident that was caused by the State Rail Authority’s negligence. Put simply, if it were not for the accident, Mr Wiegold would not have committed the crime of cultivation and would therefore still be employed by the State Rail Authority. On appeal, Samuels JA doubted whether an urgent need to feed and clothe his family was the true reason for Mr Wiegold’s decision to turn to a life of crime, noting that he did not commence his criminal activity until a few months after the cessation of his workers’ compensation payments, with the crop then taking another three months to grow. Nevertheless, Samuels JA did not disturb the trial judge’s findings on this point. His Honour did, however, find that the trial judge was wrong to conclude that the State Rail Authority was liable for the consequences of Mr Wiegold’s conviction for cultivating Indian hemp:

“If the plaintiff has been convicted and sentenced for a crime, it means that the criminal law has taken him to be responsible for his actions and has imposed an appropriate penalty. He or she should therefore bear the consequences of the punishment, both direct and indirect. If the law of negligence were to say, in effect, that the offender was not responsible for his actions and should be compensated by the tortfeasor, it would set the determination of the criminal court at nought. It would generate the sort of clash between civil and criminal law that is apt to bring the law into disrepute.”

Let us now return to the case of Mr Gray. Following the approach of Samuel JA in the Wiegold case, Lord Hoffmann held that the narrow version of the illegality defence prevented Mr Gray from succeeding in his claim for damages for his loss of liberty, loss of earnings, and injury to his reputation, given that these losses all flowed from his sentence.

The wide version of the illegality defence is a question of causation. It provides that a person cannot recover compensation for loss which is the consequence of their own criminal act. The justification for the wide version of the defence is a simple one: it would be offensive to public notions of the fair distribution of resources if a person could be compensated for the consequences of their own criminal conduct.¹⁴ Whilst Mr Gray’s claim for compensation for his feelings of guilt and remorse following his killing of Mr Boultwood, and his claim for an indemnity in respect of any liability he might incur to Mr Boultwood’s dependants, did not fall within the narrow version of the illegality defence (given that they did not flow from his sentence), Lord Hoffmann concluded that these losses were caused by his criminal act and, as such, Thames Trains and Network Rail Infrastructure were able to rely upon the wide version of the illegality defence.

A Deeply Flawed and Dysfunctional Rail Industry Machine

In 2000, a public inquiry by Lord Cullen into the Ladbroke Grove rail disaster exposed deep failings in Britain’s privatised railway system which were largely responsible for the disaster. Lord Cullen’s report identified a ’lamentable failure’ on the part of Railtrack—the company created as part of the privatisation of British Rail that was responsible for track and signal infrastructure—to respond to recommendations of prior inquiries into two serious railway incidents.¹⁵

The report was also critical of the ‘slack’ safety culture and insufficient training given to drivers following privatisation.¹⁶ Michael Hodder—the driver of the Thames Trains service who ran the red signal—was inexperienced, having qualified as a driver just two weeks prior to the crash. Mr Hodder had not been instructed directly about the risks associated with proceeding through red signals without stopping. More shockingly, the red signal that Mr Hodder had proceeded through was a known risk. In the years prior to the accident, seven other train drivers had, just like Mr Hodder, failed to see the red light and bring their trains to a stop, however, no action had been taken in response this notorious signal.¹⁷

Lord Cullen’s report into the rail disaster also noted that it is ‘highly probable’ the collision would not have occurred if the Thames Trains service had been fitted with Automatic Train Protection technology—something that had been previously rejected by Thames Trains management following a cost-benefit analysis. The same technology would have prevented the Southall rail crash which had occurred on the Great Western Main Line two years prior.¹⁸

In 2004, Thames Trains was fined a record £2 million for violations of health and safety law in connection with the disaster.¹⁹ In 2007, Network Rail Infrastructure was fined £4 million.²⁰

Years after the Ladbroke Grove Rail Disaster, Pam Warren—the lady in the mask—described Michael Hodder as ‘a small cog in an already deeply flawed, dysfunctional rail industry machine’.²¹ It is difficult to disagree with this description. For Kerrie Gray, it was this dysfunctional rail industry machine which led to him to kill. In his judgment in Gray v Thames Trains Ltd, Lord Brown of Eaton-Under-Heywood acknowledges the tragic impact of the railway disaster on Mr Gray’s life:

“I have the greatest sympathy for [Mr Gray]. Truly his life has been a tragedy. For forty years a decent and law-abiding citizen, now, consequent on severe psychological trauma sustained in the Ladbroke Grove rail crash, subject to hospital and restraint orders following conviction for manslaughter. But for his injuries it is inconceivable that [Mr Gray] would ever have killed anyone”.