Clarke v Clarke and Another [30.03.12]
Claimant unable to recover damages from Motor Insurance Bureau following accident on private land; Court rejects defence of ex turpi causa.
 
Comment
 
This case confirms that liability for injury must be insured against if such injury is caused by or arises out of a vehicle on a road or other public place. Further clarification has, therefore, been provided for the motor insurer as to what does or does not constitute a public place. Here, a gravelled area at the entrance to a farm and which was available to the general public was considered to be public, whereas a paddock on the other side of the fence was determined as being private. This must be right – there being no public access to the paddock.

With regard to considering an ex turpi defence, the criminal act has to be related to the injuries sustained and not just a part of the facts leading up to injury.

Background

On 12 July 2004 the Claimant and the First Defendant were involved in a family feud. Having encountered each other on a narrow country lane, they parked their vehicles in a gravelled area at the entrance to a farm and the Claimant exited his vehicle. The First Defendant drove through a post and rail fence into an adjoining privately owned paddock, where the Claimant was struck by the vehicle. The Claimant was left paraplegic as a result of his injuries.

The First Defendant was acquitted of all criminal charges brought against him. There being no insurance policy in respect of the First defendant’s vehicle, the Motor Insurance Bureau (MIB) was joined as the Second Defendant.

The Second Defendant raised four defences:

  1. Any liability of the First Defendant was not a relevant liability under section 145(3) of the Road Traffic Act 1988 (the 1988 Act) to obligate it to meet any judgment as the accident occurred on private land (and, therefore, not on a public road or other public place as defined)
  2. Ex turpi causa - providing that compensation cannot be recovered as a result of the claimant’s criminal act
  3. That the collision was not intentional nor the result of lack of care on the part of the First Defendant
  4. That the First Defendant was acting in reasonable self defence

Decision

Entering judgment against the First Defendant, Mr Justice McKenna dismissed the claim against the Second Defendant.

McKenna J accepted that "relevant liability" was the best defence – namely that the Claimant’s injuries were not sustained on a road or other public place (as required by s.145(3) of the 1988 Act). Accepting that the gravel area was a public place and the paddock was private land, McKenna J was satisfied that it was what the First Defendant chose to do in the paddock that inevitably caused the accident – rather than his use of the vehicle in the gravelled area.

With regard to the remaining defences, McKenna J applied the House of Lords’ decision in Gray v Thames Trains [2009] and rejected ex turpi causa. He was satisfied it was the First Defendant’s driving that was "the proximate cause of the Claimant’s injury", as opposed to the Claimant’s own criminal conduct.

In addition, McKenna J held that whilst the Claimant had used a machete on the First Defendant’s vehicle whilst in the gravelled area, he had been followed into the paddock where he was hit by the front of the First Defendant’s vehicle. Satisfied that the incident had, therefore, been caused by the negligence of the First Defendant, McKenna J dismissed the last two defences.

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