Court of Appeal considers the ex turpi causa defence

The claimant was injured when the trials bike on which he was a pillion passenger collided with a minibus. The bike had been stolen (although it was not proven at trial that the claimant knew that) and was not allowed on normal roads. The rider of the bike was uninsured and did not have a licence and the bike was being ridden at dangerous speeds on a cycle path. At first instance, the judge rejected the Motor Insurer's Bureau's defence of ex turpi causa (ie the principle that no action can arise from the claimant's own illegal act). However, the MIB was not liable because the claimant knew the bike was being used without insurance. The driver of the minibus was found to have been negligent and he challenged the finding that ex turpi causa did not succeed here.

The Court of Appeal has now held that although the rider of the bike (and hence the MIB too) could rely on a defence of ex turpi causa, the driver of the minibus could not.

Reference was made to the earlier Court of Appeal decision in Joyce v O'Brien (see Weekly Update 19/13). There, the Court of Appeal held the defence could not apply where a claimant was engaged in a joint criminal enterprise such that it was foreseeable that the enterprise would be subject to unusual or increased risks of harm – if the risk materialised, the injury will have been caused by the criminal act (even if it results from the negligence of a third party). In this case, the Court of Appeal found that that test was satisfied as against the bike rider. There had been a joint enterprise between the claimant and the bike rider to ride the bike dangerously and such conduct amounted to turpitude. The Court of Appeal left open the question, though, of what constitutes a "minor traffic offence" (Elias LJ having said in Joyce v O'Brien that the ex turpi causa defence did not apply to such offences).

However, the accident had had two causes: the claimant's own criminal conduct and the minibus driver's negligence: "I do not think that the fact that the criminal conduct was one of the two causes is a sufficient basis for the ex turpi causa defence to succeed....for reasons I have explained, cases involving a claim by one party to a criminal joint enterprise against another party to that joint enterprise are materially different. In my judgment, the right approach is to give effect to both causes by allowing [the claimant] to claim in negligence against [the minibus driver] but, if negligence is established, by reducing any recoverable damages in accordance with the principles of contributory negligence so as to reflect [the claimant]'s own fault and responsibility for the accident".