Murphy v Culhane
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ORR,MR. JUSTICE WALLER |
| Judgment Date | 10 June 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0610-2 |
| Docket Number | 1975 M. No. 4942 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 June 1976 |
[1976] EWCA Civ J0610-2
The Master of the Rolls
Lord Justice Orr and
Mr. Justice Waller
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice Queen's Bench Division Judge in Chambers
MR. N. MURRAY (instructed by Messrs. Jack Bernstein & Co. Solicitors, London) appeared on behalf of the Plaintiff (Respondent).
MR. S. BROWN (instructed by Messrs. Woodbridge & Sons, Solicitors, Uxbridge) appeared on behalf of the Defendant (Appellant).
In this case we do not know the true facts. We only know the allegations in the pleadings. According to them Timothy Murphy was a man of 29. He was a self-employed builder, that is, on the "lump" earning between £60 and £70 a week. On the 19th September, 1974 he, with some other men, made a wicked plot together. They decided to beat up another man called John Joseph Culhane. They went to an address at 20 Grove Place in Greater London. We do not know anything of what took place except that there was a "criminal affray". During it John Culhane is said to have struck Timothy Murphy on the head with a plank, and killed him. John Culhane was charged with murder. He was tried at the Central Criminal Court on the 25th April, 1975. At first, he pleaded not guilty, but after the case had been opened and some evidence heard, he changed his plea to Guilty of manslaughter. He was sentenced to eight years which was reduced to five years by the Court of Appeal.
Timothy Murphy's widow now brings an action against John Culhane for damages under the Fatal Accidents Act, claiming damages on behalf of herself and her baby daughter. I do not suppose he has any money to pay any damages as he is still in prison. But legal aid has, I believe, been granted to both sides.
The question is whether or not Mrs. Murphy is entitled to judgment on the pleadings without any trial. The statement of claim says: "0n or about the nineteenth day of September, 1974, near Grove Place, in the Area of Greater London, the Defendant assaulted and beat the Deceased by striking him on the head with a plank. The said assault was unlawful. The Plaintiff intends to adduce evidence pursuant to Section 11 of the Civil Evidence Act, 1968, that the Defendant was on the25th day of April, 1975, convicted on his own plea of guilty before the Central Criminal Court of manslaughter of the Deceased".
The Defence admits those allegations and further admits that, by reason of the assault, the deceased was killed. It then says: "The said assault occurred during and as part of a criminal affray which was initiated by the Deceased and others who had together come to 20 Grove Place on the occasion in question with the joint criminal intent of assaulting and beating the Defendant".
That is followed by legal contentions of ex turpi causa non oritur actio, volenti non fit injuria, and that the deceased's said death was caused in part by his own aforesaid fault.
On those pleadings the plaintiff applied for judgment under Order 27 Rule 3 which gives the court power to give judgment on admissions. The Master and the Judge both felt that, on the state of the authorities, they were bound to give judgment for Mrs. Murphy and shut out these defences of Mr. Culhane. Judgment was given for damages to be assessed. I gather that the Judge felt most unwilling to do this, but felt he was bound by the cases. So I must deal with them.
There are two cases which seem to...
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Standard Chartered Bank v Pakistan National Shipping Corporation and Others
...wrong is something more than mere negligence – when it involves an intent to cause harm – contributory negligence is no defense." 45 In Murphy v Culhane [1977] QB 94, an interlocutory decision, Lord Denning MR said that a widow's claim for damages for the death of her husband might fall to ......
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Pritchard v Co-operative Group
...v EB Savory &Co [1933] AC 201 at 229. In Lumsden &Co v London Trustee Savings Bank [1971] 1 Lloyd's Rep 114Lane v Holloway5 and Murphy v Culhane. 6 He concluded that he was bound by Lane v Holloway to reject the defence of contributory negligence on the facts of this case. He distin......
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Trespass to a burglar's person: tort defences
...Coal Board v. England 37 to the effect that "cases where an action in tort has been defeated by the [ex turpi causa] maxim are 33 [1976] 3 All E.R. 533, at 536. 34 See the observations of Windeyer J. in Smith v. Jenkins (1969) 119 CLR 397, at410-417. 35 Periodical literature on the topic in......