Pitts v Hunt
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BELDAM,LORD JUSTICE BALCOMBE,LORD JUSTICE DILLON |
| Judgment Date | 04 April 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0404-7 |
| Docket Number | 90/0356 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 April 1990 |
[1990] EWCA Civ J0404-7
Lord Justice Dillon
Lord Justice Balcombe
and
Lord Justice Beldam
90/0356
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
WINCHESTER DISTRICT REGISTRY
(His Honour Judge Fallon, QC)
Royal Courts of Justice
MR. JOHN PEPPITT, Q.C. and MR. ANTHONY COLEMAN (instructed by Messrs Kenwright & Cox, London Agents for Messrs Talbot Davies & Copner, Andover) appeared on behalf of the Appellant/Plaintiff.
MR. WILLIAM BARNETT, Q.C. and MR. RICHARD METHUEN (instructed by Messrs Lamport Bassitt, Southampton) appeared on behalf of the Respondents/First Defendants.
The appellant, Andrew James Pitts, appeals against the judgment of His Honour Judge Fallon sitting as a Judge of the High Court at Bristol on 1st December 1988. The appellant claimed damages for personal injuries received when he was travelling as a pillion passenger on a motor cycle ridden by the deceased, Mark Hunt, which was in collision with a car driven by the second defendant on 10th September 1983. The question of liability had been ordered to be tried as a preliminary issue. Having heard evidence on Wednesday 26th to Friday 28th October 1988, the learned judge dismissed the appellant's case against both defendants. From his dismissal of the claim against the first defendants, the appellant now appeals.
The facts as found by the learned judge are not challenged.
The appellant at the time of the accident was eighteen years old. He himself owned a motor bicycle and was licensed to ride it. Mark Hunt, the deceased, whose personal representatives are the respondents to the appeal, was sixteen years of age. He was the owner of a 250 cc Suzuki motor bicycle which he used as a trail bike. He was not, however, the holder of a licence, nor was he insured to use the motor bicycle on a road. The appellant and the deceased were friends and used to go trail biking together. The appellant knew that the deceased was not the holder of a licence and that he was not insured to use the Suzuki motor cycle on the road. Together these two young men went to a disco at the Boot Inn at Shipton on 10th September 1983. They arrived there at about 7.30 pm and stayed until 11.15 pm. During that time they each drank far more than was good for them. After the accident samples taken from the deceased showed that the concentration of alcohol in his blood was over twice the permitted limit. In spite of this, the two young men set off together on the deceased's motor bicycle with the deceased driving. Their journey home took them along the A338 road which leads from Shipton Bellinger to Tidworth. They were travelling in a northerly direction towards Tidworth along a stretch of road which is approximately 8 metres wide and which passes the Tidworth Garrison Cricket Ground. The centre of the road is marked by painted hazard lines and cat's eye studs. There is no street lighting on this section of the road and traffic is restricted to a speed of 60 mph. It is an "A" class road with a good surface which was wet at the time. Approaching the scene of the accident when travelling towards Tidworth, as the motor cycle was, the road is virtually straight for 200 yards. It then rises to a crest and starts to bear to the left.
As these two young men rode home, no doubt in high spirits, the effects of intoxication began to exert themselves, and as is too frequently the case it caused them to throw caution to the wind; they began to behave in a reckless, irresponsible and idiotic way.
Two Army non-commissioned officers whose car had broken down were walking towards Shipton Belinger along the right-hand side of the road facing oncoming traffic when they heard the motor cycle approaching. They then saw its light and it was clearly in the middle of the road. The driver and pillion passenger were shouting as if they were having a good time and the horn was being blown. It then appeared to be driven straight towards them and passed them so closely that they moved onto the verge to get out of its way. They noticed then that it was being driven from side to side of the road, weaving in and out of the white hazard lines. It was travelling at about 50 mph as it did so. They heard both the rider and pillion passenger shouting "Hooray" and "Yippee", as if enjoying the experience. They were clearly showing no concern for other users of the road and the judge drew the inference that they were deliberately riding in a way calculated to frighten others. The evidence of these two pedestrians clearly supported that inference.
The second defendant, a young man of twenty-six, was driving his girlfriend home in his parents' Renault motor car. He was also giving a lift home to his brother's girlfriend. He was approaching the scene of the accident, travelling in a southerly direction at a reasonable speed, on his own side of the road. He was about to negotiate the bend in the road when he saw the motor cycle coming towards him on its wrong side of the road and travelling directly towards him in his path. Instinctively he moved to his offside in the hope that he would avoid a collision but, no doubt because the motor cycle was weaving down the centre of the road, it then seemed as if it swerved back onto its own side. So in response the second defendant steered towards his nearside but in the time available he was unable to avoid a collision. The motor cycle struck the Renault a severe but glancing blow on the front offside corner and then careered back onto its nearside verge for a distance of about 35 metres beyond the point of impact which appears to have been on or near the crown of the road. Tragically the injuries received by Mark Hunt were fatal. The appellant sustained injuries which have left him permanently partially disabled.
Such were the primary facts as the judge found them. He acquitted the second defendant of all blame and dismissed the appellant's claim against the first defendant on a number of grounds. Before considering them, it is necessary to state some further findings which the learned judge made. He found that the deceased had drunk so much that he was obviously unfit to drive and that if the appellant had been in a proper state he would have realised that. He found that the deceased, very much aided and abetted by the plaintiff, was deliberately trying to frighten others who were on the road. No doubt because they had drunk so much, they viewed it as a joke or a game but it was certainly reckless driving. He found that the appellant had supported or encouraged the deceased whom he knew was under age, drunk and uninsured, and he added:
"On my findings the deceased was riding this motor cycle recklessly and dangerously and at the very least the plaintiff was aiding and abetting that driving. He was not manipulating the controls of the machine but he was fully in agreement with and was encouraging the way in which the deceased was manipulating the controls. Indeed the eye-witness accounts which I have accepted demonstrate that both the plaintiff and the deceased were actually enjoying their experience, partly, if not largely as a result of the very large amount they had drunk that night."
The learned judge then considered the various defences which had been raised by the first defendants. Firstly he held that the plaintiff could not maintain an action which was based on or arose out of criminal conduct on his part, " ex turpi causa non oritur actio. Secondly that on the grounds of public policy the law would not recognise in the circumstances of this claim that a duty of care was owed by the deceased to the appellant. Thirdly that, even if the appellant would ordinarily have been owed the normal duty of care, the risk of injury was so glaring and obvious that by the act of travelling as a pillion passenger on a motor bicycle ridden by the deceased in a state of intoxication and in the manner which he himself encouraged and enjoyed, he must be taken to have willingly accepted any risk of injury involved, " violenti non fit injuria". It had, however, been argued on the plaintiff's behalf that the provisions of section 148 (3) of the Road Traffic Act 1972 precluded the first defendant from relying upon such a defence.
Holding that the section did in fact have that effect, the learned judge then considered whether if there had been a breach of duty by the deceased the damages recoverable by him should be reduced having regard to his own fault and if so to what extent. On this basis he concluded that as the appellant was equally responsible for what had happened and was in effect a partner in a joint enterprise of stupidity with the deceased, that it would defy commonsense to find that the appellant was not himself wholly to blame for his own injuries. Accordingly he held the appellant was not entitled to recover any damages even on that basis.
The first two grounds on which the learned judge rejected the plaintiff's claim arose from the first defendant's reliance upon public policy and, in particular, the policy expressed in the Latin maxim " ex turpi causa non oritur actio".
Since the days of Lord Mansfield it has been a rule of public policy that a court will not lend its aid to a man who founds his cause of action on an illegal or immoral act: Holman v. Johnson [1775] 1 Cowp 341. The question there arose in an action for goods sold and delivered which it was alleged were supplied in the knowledge that they were to be...
To continue reading
Request your trial
-
Rashid Osman bin Abdul Razak v Abdul Muhaimin bin Khairuddin and another
...of negligence on the part of the user shall not be treated as negativing any such liability of the user. [emphasis added] In Pitts v Hunt [1991] 1 QB 24 (“Pitts v Hunt”), the English Court of Appeal considered the effect of the corresponding English statutory provisions. Beldam LJ opined th......
- Bee Hua Meng; Ooi Han Sun and Another
- Kewangan Bersatu Bhd; Tay Kian Hock (t/a Hock Yen Co)
-
Marc Traylor v Kent and Medway NHS Social Care Partnership Trust
... ... [1971] 2 QB 554 , Lord Denning MR said (at 558): “If his conduct is wilful and culpable, he is not entitled to recover.” (5) In Pitts v Hunt [1991] 2 QB 24 at 39G it was said that there is a clear distinction between “deliberate intentional acts and those which are ... ...
-
CONTRACTUAL ILLEGALITY AND CONFLICT OF LAWS
...at 698. 286 [1993] 3 W.L.R. 126. It was Dillon L.J. who first questioned the correctness of the public conscience test in Pitts v. Hunt[1990] 3 W.L.R. 542. 287 It was Hutchison J. in Thackwell v. Barclays Bank Plc. [1986] 1 All E.R. 676 who is credited with first having applied the public c......
-
Contributory Negligence in the Twenty‐First Century: An Empirical Study of First Instance Decisions
...848-849 (Croom-Johnson LJ) (cf Charlesworth & Percy on Negligence (London: Sweet& Maxwell, 13th ed, 2014) para 4-30).135 See Pitts vHunt [1991] 1 QB 24, 48 per Beldam LJ, 51 per Balcombe LJ; Brumder vMotornet Serviceand Repairs Ltd [2013] EWCA Civ 195, [2013] ICR 1069 at [4] per Beatson LJ;......
-
REFORMING ILLEGALITY IN PRIVATE LAW
...of England and Wales, The Illegality Defence in Tort (Consultation Paper No 160, 2001) at paras 2.3—2.10. 23 See, eg, Pitts v Hunt[1991] 1 QB 24; Ashton v Turner[1981] QB 137. 24 See, eg, Cross v Kirby, The Times (5 April 2000); Revill v Newbery[1996] QB 567. 25 See, eg, Meah v McCreamer[19......
-
The defence of joint illegal enterprise.
...and Ireland have broadly accepted the law on this point as stated by the High Court: Ashton v Turner [1981] 1 QB 137; Pitts v Hunt [1991] 1 QB 24; Lindsay v Poole 1984 SLT 269; Ashcroft's Curator Bonis v Stewart 1988 SLT 163; Wilson v Price 1989 SLT 484; Winnik v Dick 1984 SC 48; Weir v Wyp......