The Court of Appeal upheld the ruling at first instance: the claimant who fell off the back of a van in the course of a getaway while trying to make off with stolen ladders could not claim for the serious injuries he suffered. The case of Joyce v O’Brien & Tradex Insurance7 is an interesting addition to the ex turpi causa non oritur actio lexicon: he who acts illegally cannot benefit from that action.
The facts of the case are these. The claimant and his uncle stole a set of extending ladders. Such was the length of the ladders that they put them into the rear of a Ford transit van but were unable to shut the doors. The claimant was standing at the back of the van which had one door open and hung on to the back of the van and the ladders while the uncle drove off to evade capture. He was being followed. Such was Mr O’Brien’s dangerous driving that, on sharply rounding a corner first to the right then left, he flung the claimant from the van who consequently suffered serious head injury.
A witness described Mr O’Brien’s driving as reckless and “an accident waiting to happen.” Mr O’Brien drove off, unloaded and hid the ladders at speed and then returned to help his nephew. It was held at first instance, and affirmed by the Court of Appeal that the two men were in the process of committing a crime, a joint enterprise, at the time of the accident and that the claim was barred by the ex turpi causa doctrine.
Of wider interest, however, is the Court of Appeal’s enunciation of the test for ex turpi causa doctrine particularly in joint enterprise cases. Giving the only reasoned judgment, Elias LJ noted the statement of Lord Hoffman in Gray v Thames Trains Ltd8 that the maxim is not so much a principle as a policy based on a group of reasons which vary depending on the situation. Lord Hoffman described a narrow manifestation of the ex turpi causa principle: the civil court would not award damages to compensate a criminal for the injury or disadvantage which a criminal court had imposed on him by way of punishment for a criminal act. Thus in Gray itself, a claimant who committed manslaughter in part because of the psychiatric injury he had suffered in a train crash caused by the defendant’s negligence could not recover damages arising from his imprisonment. Lord Hoffman distinguished this from the wider version of the concept: the principle that you cannot recover for damage which is the consequence of your own criminal act. Lord Hoffman determined that the application of the doctrine was achieved by an analysis of causation. Therefore, while there was a criminal activity taking place, was it this criminal activity that caused the harm? So a pillion passenger who encouraged the motorcyclist to drive recklessly and was injured in the ensuing accident fell within the doctrine.9 However, a passenger engaged in delivering drugs injured by the dangerous driving of his companion was able to recover – the illegal act was incidental to the circumstance of the accident.10
Elias LJ drew the authorities together and stated the principle for joint enterprise cases as follows:
“where the character of the joint criminal enterprise is such that it is foreseeable that a party or parties may be subject to unusual or increased risks of harm as a consequence of the activities of the parties in pursuance of their criminal objectives, and the risk materialises, the injury can properly be said to be caused by the criminal act of the claimant even if it results from the negligent or intentional act of another party to the illegal enterprise.”
The doctrine is ultimately one of public policy, so there will be flexibility in its application. A claim arising from a relatively trivial offence would be unlikely to trigger the doctrine. The theft of the ladders, potentially attracting a seven year sentence, was clearly on the other side of the line.