PARTICIPATION IN AN ILLEGAL JOINT ENTERPRISE IS NOT A BAR TO RECOVERY: Court of Appeal revisits the defence of ex turpi causa in McCracken (A protected party by his litigation friend) v Smith, MIB and others  EWCA Civ 380
Personal injury arises out of criminal acts as well as legal ones. The good news is this is not a bar to recovery…
The claimant, a 16 year old was riding pillion on stolen trials bike, driven by the first defendant, an insured unlicenced driver. Notwithstanding that the design of the bike was such that it was not safe on roads, or to carry passengers, the First Defendant, with the Claimant behind him drove it dangerously along a cycle path and collided with a minibus. The minibus was driven by the Third Defendant. The Claimant sustained serious brain injuries and claimed damages in negligence against the defendants.
The defence of ex turpi cause may be long forgotten to many of us in those terms. However in modern English it is rather more familiar. It predicates from the concept that a person should not be able to found an action arising out of on his own moral/illegal conduct which, these days we would more commonly refer to as illegal conduct/activity and is recognised legal doctrine.
The Court had to consider:-
1) Did the Claimant’s participation in the First Defendant’s conduct amount to joint enterprise, the essence of which was that the bike to be ridden dangerously.
2) If so , did his conduct amount to ‘turpitude’ (ie participation in illegal/immoral activity)for the purposes of the defence?
3) If so, was the Claimant’s claim against the third Defendant (the minibus driver) founded in his illegal act so as to debar a claim against the third Defendant
COURT OF APPEAL’S CONCLUSIONS
1) In this instance, the character of the joint enterprise was such that it was foreseeable that a party might be subject to unusual or increased risks of harm as a consequence of the activities of the party in pursuance of their criminal objective. When the risk materialised, the injury can be said to be caused by the criminal act of the Claimant, whether or not it in fact resulted from the negligence of intentional act of another party to the illegal enterprise. So as to the claim against the First Defendant and therefore the MIB, the court at first instance was wrong to reject the ‘illegality’ defence as against the First and Second Defendant. This was not however the subject of the appeal.
2) The Claimants injury however was not caused just by the illegal enterprise. The third Defendant drove negligently and as a result contributed to the accident. To find that the third Defendant should escape liability on the basis of the First’s Defendant’s illegal act would have significant ramifications and would be capable of affecting any driver who was committing any road traffic offence serious enough to amount to an illegal act. There was no reason why the court should hold apply a judicial rule of abstention by applying the ex turpi causa principle and withholding a remedy altogether.
3) The right approach was to give effect to both causes of action by allowing the Claimant to recover in negligence against the third defendant but, if negligence was established, to reduce any recoverable damages in accordance with the principles of contributory negligence so as to reflect the claimant’s own fault and responsibility for the accident.
- Don’t be put off/intimidated by this defence – its common sense wrapped up in vintage paper
- Make sure you have a dictionary nearby!
LINK TO: full case report http://www.bailii.org/ew/cases/EWCA/Civ/2015/380.html