Ashton v Turner
| Jurisdiction | England & Wales |
| Year | 1980 |
| Date | 1980 |
| Court | Queen's Bench Division |
Negligence - Duty of care to whom? - Participants in criminal offence - Drunken burglar driving get-away vehicle - Passenger injured in escape - Whether driver owing duty of care to passenger - Defence of volenti non fit injuria
After an evening's drinking by three young men, two of them committed a burglary and sought to escape from the scene of their crime in a car belonging to the third. There was an accident in which the passenger was badly hurt. He claimed damages alleging negligence against the driver, the first defendant, who had pleaded guilty to driving in a manner dangerous and driving with blood-alcohol above the prescribed limit, and against the car owner, the second defendant, who was alleged to have permitted the first defendant to use the car without insurance
On the question of the liability of the defendants for the plaintiff's injuries: —
Held, dismissing the plaintiff's claim, that, in certain circumstances, as a matter of public policy, the law might not recognise that a duty of care was owed by one participant in a crime to another in relation to an act done in the course of the commission of the crime and that, on the facts, the defendants did not owe a duty of care to the plaintiff during the burglary or the subsequent flight from the scene of the crime (post, p. 745B–C).
Per curiam. The first defendant could successfully plead volenti non fit injuria to a claim by the plaintiff based on injuries sustained after they had been drinking and inflicted in the course of fleeing together in the get-away car (post, P. 747D–E).
The following cases are referred to in the judgment:
Dann v. Hamilton [
Godbolt v. Fittock (
Gregory v. Kelly [
Hardy v. Motor Insurers' Bureau [
Murphy v. Culhane [
National Co(ll Board v. England [
Nettleship v. Weston [
Owens v. Brimmell [
Slater v. Clay Cross Co. Ltd. [
Smith v. Jenkins (
The following additional case was cited in argument:
Donoghue v. Stevenson [
ACTION
In his statement of claim dated September 13, 1978, the plaintiff Philip Ashton, averred that on December 18, 1976, he was a passenger in a motor vehicle driven by the first defendant, Kevin Turner, with the permission of its owner the second defendant, Peter McLune, that the first defendant drove the motor vehicle into collision with a traffic island as a result of negligence and/or breach of duty and therefore was convicted on January 27, 1977, of (1) driving in a manner dangerous to the public, and (2) driving with blood-alcohol above the prescribed limit, and that the first defendant was caused or permitted by the second defendant to use the motor vehicle without insurance.
The second defendant's defence served in October 1978, averred that the plaintiff knew or ought to have known that the motor car was being driven without the consent of its owner, that the plaintiff impliedly consented to running a risk of injury in allowing himself to be driven by the first defendant in an attempt to escape arrest when the ability of the first defendant was impaired by alcohol, and that the plaintiff's injuries were the result of his own negligence therein and in failing to wear a seat belt.
The facts are stated in the judgment.
G. P. Crowe Q.C. and David Lynch for the plaintiff.
Michael Morland Q.C. and R. J. D. Livesey for the second defendant
EWBANK J. The plaintiff, Philip Ashton, is now aged 24. On December 18, 1976, when he was 20, in the early hours of the morning he was a passenger in a car being driven by his friend Kevin Turner, the first defendant. The car was owned by another friend of theirs called Peter McLune, who is the second defendant. There was a serious accident with the car and Philip Ashton now claims against Kevin Turner and Peter McLune. Philip Ashton was badly hurt in the accident and the damages have been agreed, subject to liability, at £70,000.
The issue before me has been the liability of the first or second defendant to pay damages to the plaintiff. The first defendant has taken no part in the action; he entered no appearance and has not been represented. The second defendant has filed a defence. The case against the first defendant made by the plaintiff is one of negligence. The plaintiff relies on, among other things, two convictions recorded against the first defendant: on January 28, 1977 (although it is pleaded as January 27), the defendant was charged before a magistrates' court with driving dangerously and with driving over the limit of alcohol; he pleaded guilty to both these offences and was sentenced.
The case against the second defendant is that the second defendant consented to or permitted the use of the car by the first defendant. The second defendant, in his defence, asserts that he gave no such consent or permission. He relies, among other things, upon another conviction recorded against the first defendant, also on January 28, for taking a car without the consent of the owner, for which he was also sentenced. Secondly, the second defendant says that the plaintiff and the first defendant were burglars and that the car was used by them as a get-away car. As against the first defendant, he re es on a further conviction of the same date (although the memorandum is wrongly dated) for burglary, for which he was also sentenced. The second defendant asserts that the plaintiff, as a matter of public policy, has no right of action against him. As an alternative, he asserts that the maxim volenti non fit injuria applies, and, in any event, he says that if he fails on these points the plaintiff was guilty of contributory negligence.
The plaintiff was badly hurt in this accident. He is partly crippled; he has a defect of speech; he has loss of memory for many of the relevant matters. I heard him in the witness box and I found myself unable to rely on his evidence. Several witnesses saw the first defendant drive the second defendant's car on other occasions and it is accepted by the first defendant that he had done so. The plaintiff told me that on the night in question the first defendant had asked the second defendant if he could drive the car home, and the second defendant had replied: “If you get caught say you pinched it,” meaning that the second defendant was not insured and that the first defendant should say that if he got caught. I find myself unable to accept that that was said by these two on that occasion.
I have allowed, during the course of the trial, several written statements to be put in, on the ground that the witnesses were missing. In particular, statements of Mr. Fenelly and Mr. McQueen, who were two taxi drivers. I have no particular reason to doubt what they say in their statements, but in view of the other evidence which I have had I do not attach any particular weight to their evidence. I have also had a statement from the owner of the shop, and from the police, and basically the same considerations apply. I allowed in evidence also, two statements by the second defendant — they are contradictory as to times. He asserts in both statements that he gave no permission to the first defendant. The plaintiff has not had an opportunity of cross-examining him and I attach no weight to these two statements. I was asked to allow in a statement by the first defendant. The application was made by the second defendant on the basis that the first defendant was an opposing party. I refused that application and the first defendant was accordingly called by the second defendant, and I have seen him in the witness box. I have heard his evidence and I accept his evidence as a true account of what happened that night.
A summary of his evidence is as follows. The three men all live fairly close together. The first defendant knows the second defendant and he knows the plaintiff because they went to school together. On the night before the accident he met them. The three of them were in the Railway Hotel, where they were drinking. They were drinking “brown” and “bitter” and might have had some whisky as well. Then they went to the Kirklands Wine Bar in the second defendant's car which the second defendant drove. There they drank Sangria. They had one or two jugs of that. Then they went on to the Hanover, where they were drinking pints and shorts, buying rounds for each other. And then to the Flintlock Club, where they were drinking the same. The first defendant told me he had no check on what they had. The bar closed at two o'clock in the morning. By the time the bar closed the second defendant was drunk and staggering and said to the...
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