Ex Turpi Causa and the MIB

By Justin Crossley

 

Smith (by his mother and Litigation Friend Bonner)

v

Stratton and the MIB (CA) (Civ Div ) 08/12/2/015

 

Smith appealed against the decision of the MIB not to meet his personal injury claim when it was discovered that the First Defendant was an uninsured driver.

Smith had been one of three passengers in a car driven by Stratton. The vehicle had been involved in a collision following a police chase and Smith had suffered a severe brain injury.  He claimed damages from Stratton, who’s insurer  had been found to be entitled to avoid the policy for non-disclosure and misrepresentation.  This meant that Stratton was uninsured and prima facie the MIB were liable to meet any unsatisfied judgement against him.

The MIB claimed that Smith had been involved in joint enterprise to supply drugs at the time of the accident and therefore sought to avoid liability under clause 6 of the MIB Compensation of Uninsured Drivers Agreement 1998, which allowed them to avoid liability where a Claimant had voluntarily allowed themselves to be carried in a vehicle used in the course of a crime or to avoid lawful apprehension. Further the MIB sought to rely on the defence of “Ex Turpi Causa non oritur actio”, which effectively prohibits actions which are founded on illegality.

Smith did not give evidence on the basis that he had no memory of the accident or events surrounding it. Stratton who was then imprisoned did not give oral evidence at the trial but the MIB had secured witness statements from him stating that he and the car’s passengers had been dropping off drugs when they spotted by the police and tried to escape.

The trail judge took account of evidence and that all 4 of the car’s occupants had drug convictions, all were unemployed but two were carrying a total of £365 in cash and that Stratton had driven off at speed after seeing the police. The judge held that the cumulative effect of the evidence was enough to satisfy him that the MIB had proven to the relevant standard that the appellant had been involved in drug dealing on the evening of the accident so as to engage the exclusion of clause 6 of the agreement.

The trial judge went on to formulate the test for the application of ex turpi causa as meaning that where the character of the joint criminal enterprise was such that it was foreseeable that a party could be subject to increased risk of harm as a consequence of criminal activity, any injuries sustained were probably said to be caused by the criminal act even if the act was unintentional. The judge concluded that the maximum was applicable since the purpose of joint enterprise had been to supply drugs and the use of the car was integral to that purpose.  He went on to find that efforts to avoid apprehension gave rise to an obvious risk of injury so that the accident had been caused by the criminal act, rather than being incidental to it.   As a consequence the trial judge ruled that the MIB were not liable to meet any judgement against Stratton.

The appellant contended that the findings involved in supplying drugs was not open to the judge on the basis that it was limited to hearsay evidence from Stratton and also that the judge had wrongly applied ex turpi causa.

The Court of Appeal rejected the appeal and said in effect that the judge had arrived at the only conclusion that was open to him. In particular he was wholly entitled to attach weight to the Stratton statement and that the factual conclusion which he had arrived was correct.  Further that the judge had correctly cited and applied the Ex Turpi Causa.

It was held obiter that although the exclusion of clause 6 of the agreement had been held to be incompatible with European law it did not assist the appellant although it might give rise to damages claimed against a member state under EU law but it did not touch on the issues in these proceedings.

Comment

This case is further reminder of the courts reluctance to find for any Claimant when they are believed to have suffered injury when engaged in a criminal activity. Further it provides authority for the court to make findings of criminal activity in the absence of convictions and where there is only hearsay evidence to rely on.