It was argued by Gray that he had been beset by these ills, as a consequence of the post traumatic stress disorder engendered by the negligence of the defendants2.
Gray’s claim was that in the absence of the defendants’ tort, he would not have been deprived of his earnings. Therefore, he contended that he had been put to a loss. Moreover, Gray claimed damages for the loss of earnings, prior to and subsequent to his killing of the pedestrian3.
The legal doctrine of ex turpi causa oritur actio implies that an illegal or immoral act cannot constitute the basis for a cause of action4. The courts are required to adopt a non rigid stance, whilst effecting the doctrine of ex turpi causa oritur action. As such, it is essential for the court to apply the test of public conscience. Hence, it should arrive at a judicious balance between the negative outcomes of granting relief against those arising from the refusal to grant relief5.
In Gray v Thames Trains Ltd, Lord Hoffmann stated that the maxim ex turpi causa was more of a policy than a principle. Moreover, such policy depends on a combination of several factors. which could vary, in accordance with the situation obtaining, in a specific instance6. Therefore, the court does not encourage a plaintiff to recover some benefit out of his own illegal act.
Gray’s capacity to earn had been rescinded, due to the imposition of the hospital orders. The House of Lords, opined that the award of damages to the claimant, in respect of the loss of earnings, for the period, during which, the latter had been subjected to the orders of the civil court. would be at variance with the policy, on which these orders had been made7. In this case the House of Lords analysed the issues relating to causation and public policy, with regard to psychiatric illness.
Lord Phillips had opined that

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