Court of Appeal confirms Claimant not entitled to damages when he fell off the back of a van being driven at speed following theft of ladders.

Implications

  • This decision perhaps helps a little in defining which dubious civil claims might fall foul of the ex turpi causa doctrine (that no cause of action can arise from illegal conduct). However, there is undoubtedly a rather large grey area in relation to this principle as applied in civil motor claims.
  • Evidence of joint enterprise and, to a greater extent, evidence of encouragement to bad driving may prove very difficult to establish in the average civil motor claim.
  • The temptation to run an ex turpi causa argument where the claimant’s driver has been convicted of a minor road traffic offence should be avoided, almost always.

Background

For the detailed background, see our review of the High Court decision.

In summary, the Claimant was holding on to the back of a van being driven by the First Defendant. They were making their escape having stolen some ladders. The Claimant fell off at a sharp junction. He claimed damages from the First Defendant. The High Court dismissed the claim.

The appeal concerned the ambit of the ex turpi causa doctrine in its application to a case of a joint criminal enterprise.

Decision

Lord Justice Elias dismissed the Claimant’s appeal:

  • Ex turpi causa - the authoritative statement of the relevant principles for determining when this doctrine will apply is still contained in the House of Lords’ decision in Gray v Thames Trains Ltd [2009] Joint criminal enterprise - where the character of the enterprise is such that it is foreseeable that a party may be subject to unusual or increased risks of harm, an 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 enterprise.
  • Application to this case – the evidence of joint enterprise and implicit encouragement to bad driving was plain, even in the absence of active encouragement. Whilst there should be some flexibility in the application of the ex turpi causa doctrine, this case fell clearly on the side where it applied.