David Michael Joyce (by his Litigation Friend Stephanie Tarrant) v (1) Edward Gerald O'Brien (First Respondent) (2) Tradex Insurance Company Ltd (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lady Justice Rafferty,Mr Justice Ryder |
| Judgment Date | 17 May 2013 |
| Neutral Citation | [2013] EWCA Civ 546 |
| Docket Number | Case No: B3/2012/1350/QBENF |
| Court | Court of Appeal (Civil Division) |
| Date | 17 May 2013 |
[2013] EWCA Civ 546
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
THE HONOURABLE MR JUSTICE COOKE
HQ11X01433
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Elias
Lady Justice Rafferty
and
Mr Justice Ryder
Case No: B3/2012/1350/QBENF
and
Mr Christopher Melton QC and Mr Richard Baker (instructed by Messrs Fentons) for the Appellant
Mr Richard Lynagh QC and Ms Suzanne Chalmers (instructed by Messrs Blake Turner) for the Second Respondent
Hearing date: 21 March 2013
Approved Judgment
This appeal concerns the ambit of the common law doctrine of ex turpi causanon oritur actio in its application to a case of a joint criminal enterprise.
The appellant was very seriously injured when he fell from the back of a van which was being driven by his uncle, the first respondent. (I shall refer to them as the claimant and first defendant, as they were below). The first defendant subsequently pleaded guilty to the offence of dangerous driving, admitting that it was a serious mis-judgment to drive with his nephew travelling in the manner he was. The first defendant's insurance company, the second respondent to this appeal, contends that although the first defendant was driving without proper care, he is not liable in tort to the claimant because both men were at the time involved in a common criminal enterprise. They had stolen some ladders and were seeking to make a speedy escape from the scene of the crime. The submission is that in these circumstances public policy reflected in the ex turpi principle provided him with a complete defence. These submissions were sustained by Mr Justice Cooke following a two day trial, and the claimant now appeals against his decision.
The legal principles.
Before analysing the facts, I will consider the authorities establishing the relevant principles of law when a claimant seeks to recover damages for injuries sustained in the course of criminal behaviour.
In Gray v Thames Trains Ltd [2009] UKHL 33; [2009] 1 AC 1319 Lord Hoffmann, with whose speech Lords Phillips, Scott and Rodger agreed, described the ex turpi concept in the following terms (para 30):
"The maxim ex turpi causa expresses not so much a principle as a policy. Furthermore that policy is not based upon a single justification but on a group of reasons, which vary in different situations."
The concept applies generally when a claimant is injured whilst committing a criminal offence. We are concerned in this case with its application in one particular context, namely where one criminal is injured by the negligence of another when they are both engaged in a criminal enterprise. The authorities demonstrate that whilst it is widely recognised that the ex turpi principle will often apply to deny the claimant the right to damages in such cases, the jurisprudential basis for reaching that conclusion is a matter of some dispute. I will first consider the principles which have been developed in the context of injuries incurred in the course of joint criminal enterprises, then focus on the distinct principles which apply where the criminal is injured by a third party unconnected to the criminal activity, and then suggest how the two strands of authority may be integrated.
Criminal joint enterprise.
Almost two centuries ago Lord Lyndhurst CB said in the case of Colburn v Patmore (1834) 1 Crop. M & R 73, 83:
"I know of no case in which a person who has committed an act, declared by the law to be criminal, has been permitted to recover compensation against a person who has acted jointly with him in the commission of the crime. It is not necessary to give opinion on the point; but I entertain little doubt that a person who is declared by the law to be guilty of a crime cannot be allowed to recover damages against another who has participated in its commission."
Lord Asquith observed in National CoalBoard v England [1954] AC 403, 428–429 that cases where the ex turpi principle had defeated a claim for damages were rare. He did not think that a plaintiff would be precluded from suing simply by virtue of the fact that a wrongful act is committed after the illegal agreement; the relevant wrongful act "must, I should have supposed, at least be a step in the execution of the common illegal purpose." He gave the example of someone injured in an illegal prize fight.
Both these observations were cited by Windeyer J giving judgment in the High Court of Australia in Smith v Jenkins (1970) 119 CLR 397. A passenger was injured by the driver of a stolen car which he and the driver had stolen as part of a joint enterprise. The High Court was unanimous in concluding that the plaintiff could not recover. Windeyer J, giving a judgment which was approved by a majority of the other judges in the Court, formulated the relevant principle as follows:
"If two or more persons participate in the commission of a crime, each takes the risk of the negligence of the other or others in the actual performance of the criminal act. That formulation can be regarded as founded on the negation of duty, or on some extension of the rule volenti non fit injuria, or simply on the refusal of the courts to aid wrongdoers. How it be analysed and explained matters not."
In fact the majority preferred to base the principle upon the notion that there was no duty of care as between the parties. Kitto J succinctly summarised why this was the case:
".. in such a case the law regards the joint illegal conduct as the commission of a single wrong of which, as a whole, each participant is guilty."
Both Smith v Jenkins and Lord Asquith's observations were relied on by Ewbank J in Ashton v Turner [1981] QB 137, a case whose facts are analogous to the present one. Two men committed a burglary and then sought to escape from the scene driving a car belonging to a third. They had been drinking heavily. The driver was driving very dangerously in order to avoid their arrest after two taxi drivers had tried to block the car. The passenger was very badly hurt and sought damages in negligence against the driver, who as in this case had pleaded guilty to dangerous driving. After citing various authorities and quoting copiously from each of the judgments in Smith v Jenkins, the judge concluded that no damages could be recovered because the relevant principle, based on public policy, was that in the circumstances
"a duty of care did not exist between the first defendant and the plaintiff during the course of the burglary and during the course of the subsequent flight in the get-away car." (p.146C)
(The judge also found that the claim failed on the volenti non fit injuria principle, but as later courts have recognised, that is not a sustainable defence in a road traffic accident because of the effect of section 148(3) of the Road Traffic Act 1972).
There were in fact two other decisions of the Australian High Court which were not drawn to the attention of Ewbank J. The first was Progress and Properties Ltd v Craft (1976) 135 C.L.R. 651. Craft was a workman on a building site who allowed himself to be carried to the top floor of a building under construction by a goods hoist. He fell and was injured when the operator's foot slipped. The High Court held, again by a majority, that he could recover damages against the employers, who were liable for the negligent operator. Jacobs J, with whose judgment Stephen, Mason and Murphy JJ agreed, held that the workman could recover. He distinguished Smith v Jenkins in the following way:
"A plea of illegality in answer to a claim of negligence is a denial that in the circumstances a duty of care was owed to the injured person. A duty of care arises out of the relationship of particular persons one to another. An illegal activity adds a factor to the relationship which may either extinguish or modify the duty of care otherwise owed. A joint illegal activity may absolve the one party from the duty towards the other to perform the activity with care for the safety of that other. That, it seems to me, is the effect of Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397. Where there is a joint illegal activity the actual act of which the plaintiff in a civil action may be complaining as done without care may itself be a criminal act of a kind in respect of which a court is not prepared to hear evidence for the purpose of establishing the standard of care which was reasonable in the circumstances. A court will not hear evidence nor will it determine a standard of care owing by a safe blower to his accomplice in respect of the explosive device. This is an example which gives no difficulty, but other cases can give difficulty in classification. (at p.668)"
This involves a marked shift in the explanation as to why the duty of care may be negated in the case of joint illegal activity. The formulation is no longer premised on the basis that each participant is equally responsible for the acts of each other thereby necessarily negating a duty of care one to another. Rather the assumption is that sometimes the duty of care may remain intact even where the conduct causing the injury is in pursuance of the illegal joint enterprise. The nature of the illegal activity might be such as to extinguish that duty but not necessarily. It will do so only where the character of the activity is such that the claimant cannot expect the defendant to...
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