In the case of Kelly Wallett (on her own behalf and on behalf of the dependants of Ian Hill (Deceased)) v Vickers [2018] EWHC 3088 (QB) the High Court considered (heard on 14.11.2018) issues of joint criminal enterprise in the context of the ex turpi causadefence.

Two motorists drove alongside each other on a dual carriageway at speeds approaching twice the speed limit, each determined to be the first to reach the point where the road narrows to a single lane and refusing to give way to the other. As the road began to narrow, the motorist in the inner lane lost control of his vehicle and collided with other vehicles on the opposite carriageway, sustaining fatal injuries. His partner brought a claim for damages under the Fatal Accidents Act 1976. In order to succeed it had to be shown that the deceased would himself have been entitled to succeed in a claim for damages for negligence against the other driver. Issues of causation, ex turpi causa and contributory negligence arose.

At first instance, the claim was dismissed because the defence of ex turpi causa was made out due to a finding that the two drivers were engaged in joint criminal enterprise of dangerous driving on a public road. No conclusions were reached on contributory negligence as the claim was dismissed.

The claimant appealed, contending that a joint criminal enterprise requires not only encouragement or assistance by one defendant in the commission of an offence by the other, but also an intention to encourage or assist, and that there was no valid basis on which the Recorder could conclude that the deceased intended to encourage the defendant to drive dangerously. C argued that the Recorder was therefore wrong to hold that the claim was barred by the ex turpi causa principle; instead he should have held that the deceased’s own fault could properly be taken into account by a substantial reduction for contributory negligence.

In giving permission to appeal Langstaff J observed that the case raised a serious issue of law, “whether in circumstances in which, without any pre-arrangement, two car drivers attempt each to outdo the other by driving faster than the other along a stretch of dual carriageway, at speeds which are dangerous, with a view to reaching an area of single carriageway first, it can be said that the fatal loss of control of the one (in the absence of contact with the other) is an event for which the other is in law responsible”.

At paragraph 40, Mr Justice Males said as follows:

40. The question whether dangerous driving should amount to turpitude for the purpose of the ex turpi causa defence was considered in McCracken v Smith [2015] EWCA Civ 380, [2015] PIQR 19. The claimant (Daniel) was the pillion passenger of a 16-year-old boy (Damian) riding a stolen trials bike at excessive speed when it crashed into a minibus negligently driven by Mr Bell. The case is important for the determination of the present appeal and I shall return to it when dealing with the issue of joint enterprise. Its relevance for present purposes is that Richards LJ considered whether dangerous driving by Damian, the rider of the bike, would engage the ex turpi causa principle so as to bar a claim against Bell. He recognised at [49] that this was a question of wide importance:

“Since Daniel was jointly responsible for the dangerous driving, he is in the same position as Damian, the actual rider of the bike, as regards a claim in negligence against Mr Bell. The question in each case is whether the fact that the bike was being ridden dangerously provides a defence to the claim. The answer to that question is one with potentially wide ramifications, capable of affecting any driver involved in an accident with a negligent third party in  circumstances where he or she is driving dangerously or is committing any other road traffic offence of sufficient seriousness to amount to turpitude for the purposes of the ex turpi causa defence.”

41.The answer to the question was that the claim was not barred. Viewing the issue in terms of a duty of care, “the dangerous driving of the bike had no effect whatsoever on Mr Bell’s duty of care or on the standard of care reasonably to be expected of him” (see [50]). Viewing it in terms of causation, there were two causes of the accident, the dangerous driving of the bike and the negligent driving of the minibus (see [51]). The fact that one of those causes was the criminal conduct of the notional claimant (i.e. Damian, the rider of the bike) was not a sufficient reason to bar the claim. …’

Mr Justice Males then went on to make the point that cases of joint criminal enterprise were materially different but there needs to be proof of a mental element in order to establish joint enterprise.

Crucially, there was no evidence in this case of a joint enterprise because the mental element could not be established and it was not clear how the Recorder at first instance came to that conclusion or that he in fact considered the mental element in any great detail. At paragraph 59, Mr Justice Males made the following comment: ‘Rather than working together or encouraging each other to achieve a shared objective, each man was seeking to achieve his own objective which would necessarily mean frustrating the other.’ There was therefore no evidence of criminal joint enterprise.

For that reason, the decision was reversed and a finding of primary liability on the part of the other driver made to the extent of 40% with the deceased being found as having contributed to the accident in the order of 60% because of his own dangerous driving. The other driver drove dangerously but at least was able to maintain control of his car; the deceased chose to drive as he did and lost control of his car.

At paragraphs 44 to 53 of the judgment, there is a very useful summary of the law relating to joint enterprise and the mental elements of establishing the offence.

There were attempts to run the appeal point on the basis that the ex turpi causa defence applied to defeat the claim not just on the basis of the joint criminal enterprise but on the basis that the deceased’s own dangerous driving was criminal, and it was argued that this was in fact the basis on which the case had been defended at first instance. The Court found that that was not the case and did not allow this new argument to be advanced on appeal for the first time. The decision at first instance was clearly based on a finding of joint criminal enterprise and the effect on the defence of ex turpi causa in those circumstances was made clear by the decision of the Court of Appeal in McCracken. Different considerations would apply, including policy issues, when looking at the criminality of the deceased’s own dangerous driving.

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