Ex turpi causa defence tested in RTA context

Flint v (1) Tittensor (2) MIB[2015] EWHC 466 (QB)

The facts

The Claimant brought a claim in trespass against the person, for damages for personal injury following being thrown from the bonnet of a car being driven by the Defendant (an actor best known for the television series Shameless).

The Claimant had been out with friends but had become separated from the group. His mobile phone was out of charge so he approached the Defendant’s vehicle and asked the Defendant if he could borrow his phone.

The Defendant refused the request in aggressive terms prompting the Claimant to slam his hand down on the bonnet of the Defendant’s vehicle causing a dent.

The Claimant alleged that the Defendant drove his vehicle towards the Claimant forcing him onto the bonnet, before reversing and driving forwards again, causing the Claimant to fall to the ground and sustain injuries.

Held

Although the Judge was critical of both parties evidence, his findings were much closer to the Claimant’s account.

Although the Claimant was drunk and disorderly and had caused criminal damage to the car, the Defendant overstated the effect that the Claimant’s behaviour had had on him and had not behaved in a way that caused the Defendant to fear for his life.

When the Defendant drove at the Claimant and swerved so that the Claimant would be thrown off, the Claimant was in more danger than the Defendant.

The conduct of the Defendant satisfied the elements of the tort of battery, which requires a deliberate act, whether or not intended to cause harm. Moreover the Defendant’s actions could not be considered to be self-defence (a defence to battery) as the use of potential lethal force was not proportionate to the criminal threat the Claimant objectively posed.

Where a Claimant who had committed criminal conduct, nevertheless sustained injuries because a third party voluntarily committed a different serious crime against him, the claimant’s conduct did not in law cause those injuries for the purpose of the particular rule of causation applicable to self-defence. The Defendant’s actions in using his vehicle as a weapon had therefore broken the chain of causation.

What can we learn?

  • Where an individual responds to provocation in a manner which exceeds that which was reasonable and the level of that response is a serious crime he will not be absolved from liability on public policy grounds or be able to argue self-defence
  • Interestingly, it may be that this case prompts further pleadings in trespass as opposed to negligence. In trespass, once an intentional act which interferes with the claimant’s person has been actioned, the burden of proof passes to the defendant to prove the trespass was lawful, i.e. that it was self-defence. However in negligence, the burden of proof rests with the claimant throughout the claim. Accordingly, whilst the claimant may fail to prove negligence ending his claim, if trespass is pleaded, the defendant may fail to prove self-defence and thus be liable in trespass
  • Additionally, contributory negligence is not available to trespass against the person. It seems likely that if this claim had been brought in negligence, the Claimant’s damages would have been reduced due to his own conduct. Of course, it will still be open to defendant’s to argue that the case should be pleaded in negligence,not trespass and any damages reduced for contributory negligence, although as in this case, such a pleading may fail