Incapacity and Illegality in the Personal Injury / Clinical Negligence context


By Nathaniel Caiden


Those dealing with personal injury and clinical negligence cases will often have dealt with claimants who lack capacity and the resulting costs in light of that lack of capacity.  The usual occurrence will be one where it was plainly the negligence or breach of statutory duty that caused this loss of capacity.

However, the recent case of AB v Royal Devon and Exeter NHS Foundation Trust [2016] EWHC 1024 (QB) Irwin J involves a different scenario that necessitates the interaction between incapacity and illegality in the personal injury / clinical negligence context where it is clear that incapacity was not caused by any negligence.

Background facts and relevant findings

Prior to the act of clinical negligence, the Claimant had a long history of drug abuse and an extensive criminal record (often related to drugs and involving custodial sentences).

The claim was for clinical negligence, namely, the Claimant was admitted to the Defendant hospital who missed several signs that he had developing spinal abscess.  The ensuing injury to the spinal cord left the Claimant paraplegic and liability was settled 60% in favour of the Claimant.

After the start of the action the Claimant was found to lack capacity and so became aprotected party.  The lack of capacity it was agreed was not attributed to any of the clinical negligence at any time (judgment at [6] and [71]).  The judge concluded that an earlier order was correct to find that the Claimant lacked capacity and further it was appropriate for the Claimant’s representatives to have continued within the confines of the order despite drug treatment meaning the Claimant actually regained capacity (judgment at [66]-[67]).  This capacity would be lost however if he returned to drug use (judgment at [70]).

In relation to a large financial award, it was found that, even if the Claimant remained off hard drugs, he lacked capacity to make the relevant decisions and manage his affairs (in particular dealing with a large award he would receive as a result of the litigation); judgment at [68]-[69].  This lack of capacity would last a year and, assuming he did not return to drug use, thereafter it was likely that the Claimant would regain capacity (judgment at [72]-[73]).

The issue in terms of illegality was that the Defendant alleged that as the lack of capacity derived from abuse of illegal drugs, it could not be liable for any consequential losses, due to the doctrine of ‘ex turpi causa’ (illegality)

As a matter of fact the judge found that the Claimant was unlikely to avoid future drug use entirely (judgment at [27]) and found that it was probable that he would revert and abuse hard drugs once more (judgment at [38]).

Illegality principles and conclusions

The judgment at [75]-[88] deals with the principles and conclusions in respect of illegality, and seeks to apply these to the incapacity of the Claimant.  It sets out the recent cases on illegality and candidly admits the application of these principles are difficult.  In my opinion the following general points of general application emerge however:

  • Cases such as the present are concerned with illegality in the broader sense; that is, one is not forced to rely upon any illegality to prove one’s claim but, as stated in Gray v Thames Trains Limited [2009] UKHL 33; [2009] 1 AC 1339 at [32] “The wider and simpler version is that which is applied by Flaux J: you cannot recover for damage which is the consequence of your own criminal act”.
  • The argument that one is dealing with an alleged break in the chain of causation, in this case the alleged ‘voluntary’ drug taking, does not take the situation further and is not a separate principle it appears as in Irwin J’s view, that this is part of the wider principle in any event (judgment at [84]-[85]).
  • A Defendant can still be liable for costs flowing from lack of capacity even if the incapacity does not flow from the negligence / breach of duty.  In this case, the Defendant was liable for one year’s worth of incapacity (judgment at [68]-[73], [87] and [188]).
  • Capacity is not a once and for all decision; a Claimant, as in this case, may lack capacity but later be deemed to have sufficient capacity in the future (judgment at [88]).  It seems that in large financial award cases this is something that may be particularly prevalent, as one may not be able to manage the initial large and most complicated aspect of the award.
  • Drug misuse cases are unlikely to fall within an exceptional category; one cannot argue that the abuser of drugs has no significant responsibility as “the law cannot be seen to remove responsibility for such future offending in the way suggested” (judgment at [83]).
  • It seems unlikely that pleading points taken by the Claimant on such an issue are going to be successful. The rule that one must plead and particularise illegality was not rejected in principle, but failed for two reasons (which are likely to apply in such damages/quantum contexts as across the board) i) if illegality is obvious the court is obliged to take the point ii) a counter-schedule of loss is likely to be sufficient to raise the issue (judgment at [81]-[82]).