The Sale of Stolen Goods: A Dilemma for the Law
| DOI | http://doi.org/10.1111/j.1468-2230.1991.tb02669.x |
| Author | Graham Battersby |
| Published date | 01 September 1991 |
| Date | 01 September 1991 |
The
Modertt
Lclw
Review
[Vol.
54
app0rtionment.~3
In
Morris,
the trial judge had rejected the
volenti
plea and
reduced the plaintiff‘s damages by only
20
per cent for contributory negligence.
The Court of Appeal considered this was too low, the majority suggesting that
50
per
cent was more appr0priate.4~
Conclusion
Had
vulenti
not been available
in
Morris,
the logic of
Pitts
suggests that the
passenger’s claim could have been defeated by alleging
ex
turpi
cuusu.
Stripped
of technicality,
in
each case the defendant’s plea was that the plaintiff had willingly
and culpably encouraged him to act
in
a dangerous manner, and that when the
inevitable risk materialised the passenger’s claim should fail because he got no more
than he deserved. Where parties can be portrayed as being complicit
in
dangerously
drunken driving
or,
it seems,
in
other illegal (still to be defined) activities where
personal injury is highly likely,
it
must frequently be possible to argue that
the
injured
party has not just assumed the risk but has foregone the right to compensation by
virtue of his participation
in
the illegality.
No
doubt where a passenger does no
more than passively accept a
lift
with a driver who is obviously intoxicated, then
apportionment
will.
continue to be the appropriate solution. But where the argument
is accepted, its effect for the particular plaintiff
will
be to return tort to the days
when fault on his part constituted a complete bar to an action notwithstanding equal
or greater fault by the defendant.
It
is highly questionable whether courts should
allow unmeritorious defendants to treat the foolhardy participation of their passengers
as a
rurpis
cuusu
in
this way
so
as to turn the flank
of
contributory negligence and
side-step the statutory prohibition against volenti.
The Sale
of
Stolen
Goods:
A
Dilemma
for
the
Law
Graham
Battersby
*
It
is a commonplace, but
it
is worth repeating, that one of the central problems
of
the law of property concerns the tension between ease of transfer and security
of ownership. Ease
of
transfer requires that a purchaser
of
property should not run
an unfair risk that the title
will
prove defective, but equally the purchaser should
not be compelled,
in
order
to
avoid that risk, to make unduly onerous inquiries
about the vendor’s title. On the other hand, making matters easy for the purchaser
is
prejudicial to the original owner, whose title may then be weakened or defeated
by the transfer to the purchaser. The law tackles this problem
in
different ways
43
;hid
at 560, 558 and 560 respectively.
In
Ashrorr
v
Trtrrrer
[I9811
QB
137, riding in
a
get-away ca;
and failing to wear
il
scat belt wcrc similarly considered
as
constituting driver and passenger equally
to blame.
;OM
Stocker
LJ
at 819 and Sir George Waller
at
820.
Fox
W
at 809, while agreeing that 20% was
too low, said that an increase to 50% would ‘substantially penalise’ both sides and that he would
prefer
to
leave the
loss
‘where
it
falls.’ Judge Rice
in
Morris
had purported
to
follow
Owerrs
v
Brirfirne/l
[
19771
QB
859 where
a
20%
discount was applied to
a
passcngcr who had set
out
on
a
pub crawl
with thc drivcr, 8 or 9 pints apiece having been drunk. Arguably, the result there was too generous
to
the passenger. For
a
discussion of the difficulties
of
evaluating comparative fault in such cases,
scc
Symrnons
(1977)
40
MLR
350.
*Faculty of taw. University
of
Shcffield
44
752
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