Sean Delaney awoke from a nine-week coma to find himself severely injured as a result of a car accident, with ‘bleak’ prospects for future employment. He naturally decided to sue Shane Pickett, the driver of the car in which he had been the passenger. The fly in the ointment was that when Delaney was pulled out of the car wreck, he was found to have a 240-gram bag of cannabis (rather a lot) inside his jacket.

Pickett had a further 34 grams stuffed down his sock. Delaney had no recollection of even getting into the car with Pickett, who was ‘more an acquaintance than a close friend’.

At trial, the judge held that Delaney could not recover from either Pickett or under uninsured motorist coverage on the grounds that Delaney, like Pickett, must have been in possession of the pot with intent to traffic in it. The quantities in question did not support Pickett’s contention that it was for personal use. Delaney had no real explanation for the bag in his jacket, although the evidence suggested that that he knew about it once he got in the car.

The majority of the English Court of Appeal agreed that the claim against the insurer failed because the policy excluded coverage for acts in furtherance of a crime. The trial judge was incorrect, however, that the ex turpi causa defence precluded recovery from Pickett, who owed a duty of care to his passenger regardless of the purpose of their journey. Delaney’s injury was not an essential consequence of his illegal act. Not much comfort to Delaney, however: Pickett’s own insurance had been avoided for material non-disclosure, making reliance on uninsured coverage necessary – but, as we have seen, this was unavailable. Ward LJ, dissenting, thought the trial judge made unfair inferences from the facts and would have allowed recovery against both Pickett and the insurer.

Delaney v Pickett, [2011] EWCA Civ 1532

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