Is it strictly legal – ex turpi causa non oritur actioSimon Anderson
It is with starry-eyed nostalgia that lawyers recall undergraduate law questions. I was recently presented with the following set of facts that resembled an examination paper on the topic of ex turpi causa non oritur action.
Master Dennis sustained a significant subdural haematoma in a motorcycle accident when he was aged 16. He owned a trials bike, although it had no number plates, lights or road fund licence. Unsurprisingly, Dennis had not yet obtained his motorcycle licence, and was uninsured.
Whilst riding at about 20 mph on a public highway with his best friend, Gnasher, riding as pillion, Dennis was passed by two police officers on motorcycles. Dennis was wearing a crash helmet and goggles, which he removed as the police approached. Neither officer was sounding sirens, displaying lights or making hand gestures. Unfortunately for Dennis and Gnasher one of the police officers kicked the wheel of their motorcycle and they fell off. Dennis was knocked unconscious and immediately taken to hospital.
Dennis was later prosecuted for offences relating to his absent tax, licence and insurance. He was not, however, prosecuted in respect of any other driving offence. Discuss the liability of the police (15 marks). What if Dennis had been riding dangerously? (5 marks)
Assuming Dennis not to have been driving dangerously, then the present facts can be distinguished from the Court of Appeal judgment in Vellino v Chief Constable of Greater Manchester Police  1 WLR 218. There the claimant was injured in consequence of jumping from a second-ﬂoor window to escape from the custody of the police. He sued the police for damages, claiming that they had not taken reasonable care to prevent him from escaping. Attempting to escape from lawful custody is a criminal offence. The Court of Appeal held that, assuming the police to have been negligent, recovery was precluded because the injury was the consequence of his own unlawful act.
The facts of Dennis’ case have clear parallels with McCracken v Smith & Ors  EWCA Civ 380. The claimant was a 16 year-old pillion passenger on a stolen trials bike ridden by his uninsured friend. The accident occurred when the bike collided with a minibus driven by Mr Bell. The bike was being ridden on a cycle path that crossed the entrance to a community centre and where there were double broken white lines informing cyclists that they had to give way to other traffic. The minibus was turning right into the community centre when the bike collided with its offside. At first instance Mr Bell was found 55% liable for the accident. In not wearing a helmet the claimant was held to have contributed to his own injuries by 15%. The MIB’s ex turpi causa defence was rejected, (although it escaped liability as the claimant knew the bike to be being used without insurance). The judge found that it was not the claimant’s presence on the bike that was the most proximate cause of his injuries, but the way in which it was driven.
Mr Bell appealed, arguing firstly that the MIB’s ex turpi causa defence should have succeeded, and secondly, had it done so then he would not have been held liable. The second argument was easily dismissed – the public interest did not require the court to abstain from affording the claimant a remedy on account of the carelessness of Mr Bell. The answer to the first point, however, requires closer scrutiny of the authorities.
In Gray v Thames Trains Ltd  1 AC 1339 Lord Hoffmann set down the following test:
“Can one say that, although the damage would not have happened but for the tortious act of the defendant, it was caused by the criminal act of the claimant? (Vellino v Chief Constable of the Greater Manchester Police  1 WLR 218). Or is the position that although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant? (Revill v Newbery  QB 567).”
In Revill v Newbery  QB 567 the claim was brought by a man who was shot and injured by the occupier of land in the course of an attempted burglary on the property. The Court of Appeal held that the liability of the occupier depended on ordinary principles of negligence at common law and that he had been negligent in ﬁring the shot.
Lord Hoffmann’s test was applied in Delaney v Pickett  EWCA Civ 1532 where the claimant was injured in a collision while couriering cannabis – the damage suffered by the claimant was not caused by his or her criminal activity, which was regarded as incidental.
The contrary view was taken in Joyce v O’Brien  EWCA Civ 546. The claimant stole a set of ladders, which were placed in the back of a van for the purposes of making a getaway. The driver of the vehicle sped off with the back doors of the van open and the claimant inside. The claimant fell out and suffered serious injury. The driver subsequently pleaded guilty to dangerous driving. Applying the causation test set out in Gray Elias J considered that:
“the injury will be caused by, rather than occasioned by, the criminal activity of the claimant where the joint criminal illegality affects the standard of care which the claimant is reasonably entitled to expect from his partner in crime;…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 broad scope of the defence was tempered by the observation that the doctrine is one of public policy, and therefore inherently flexible. It does not apply, for example, to minor traffic offences; this also reflects the speech of Lord Rodger in Gray, where at paragraph 83 he suggested that some offences are too trivial to engage the defence.
The Supreme Court in Les Laboratoires Servier v Apotex Inc  UKSC 55 was also alive to the possible draconian consequences of the widening of the application of the principle. Lord Sumption specifically cautioned against a discretionary fact sensitive approach, and called for the application of principles based on rules of law. He set about by stating that the ex turpi causa principle commonly raises three questions: (i) what acts constitute turpitude for the purposes of the defence? (ii) what relationship must the turpitude have to the claim? (iii) on what principles should the turpitude of an agent be attributed to his principal, especially when the principal is a corporation? The first two questions are relevant for present purposes.
As to the first question, Lord Sumption was clear that it requires acts which engage the public interest. The illegality defence, where it arises, arises in the public interest, irrespective of the interests or rights of the parities. He also pointed out that, although described as a defence, it is in reality a rule of judicial abstention. In effect, it is in the public interest that the state denies the individual a remedy. It is difficult to imagine how this is anything other than broadly discretionary and fact sensitive approach.
In his application of the law as set out above, Richards LJ has no difficulty in finding that the claimant in McCracken was guilty of an offence of dangerous driving on the basis of a joint enterprise. The second question posited by Lord Sumption in Les Laboratoires Servier v Apotex Inc could be answered by reference to the test set out by Elias J in Joyce v O’Brian: was it foreseeable that the claimant and his friend may be subject to unusual or increased risks of harm as a consequence of their dangerous driving? On this analysis the Court of Appeal was bound to conclude that it should abstain from providing Mr McCracken with a remedy against the rider of the motorbike.
Applying the law to the facts of Dennis’ possible claim against the police, it is necessary first to ask: what acts constitute turpitude for the purposes of the defence? The answer appears to be largely motoring document offences. Looking at these through the public policy prism, it is clear that his lack of motor insurance is a grave concern, especially given the fact that he was transporting Gnasher at the material time. There are overwhelming public policy reasons for society’s insistence that all motorist should be covered against third party risks. Indeed, the MIB would argue that there is a powerful moral obligation on society to be adequately insured while driving on the highway. Nevertheless, this category of strict liability minor offence appears to have been what Elias J in Joyce, Lord Rodger in Gray and Lord Sumption in Les Laboratoires Servier had in mind as being too trivial, and if caught by the rule, too draconian.
If the event of a finding of fact that Dennis’ driving fell far below that expected of a competent and careful driver then, applying Joyce and McCraken, the balance is tipped against him on the issue of whether his actions are sufficient to set up the defence. The second of Lord Sumption’s questions therefore falls to be determined.
What was the relationship of the turpitude to the claim? The answer to this question lies both in the motives of the police officer, and the details of Dennis’ riding. If, for example, the officer was demonstrating excessive zeal in kicking out at the front wheel of the motorbike, and had no reason to suppose that it would not be brought to a safe halt, then the fact of Dennis’ dangerous driving offence would appear to be incidental, as opposed to causative.
The police may wish to argue that it was foreseeable that the standard of Dennis’ riding would subject him to unusual or increased risks of harm. That the risk happened to materialised means that the injury can properly be said to have been caused by the criminal act of the claimant. Whilst this is the effect of Joyce, it is distinguishable on the obvious and possibly paradoxical basis that Dennis is in the position of principal offender, as distinguishable from his co-conspirator, Gnasher. Furthermore, Lord Hoffmann’s speech in Grey should be recalled: although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant. It is therefore submitted that unless there were clear and pressing reasons for kicking Dennis from his trials bike, for example he was riding on the pavement in the vicinity of pedestrians, or he was reasonably likely to evade lawful arrest, then the greater probability is that the defence of ex turpi causa will fail.
Simon Anderson is a member of Park Square Barrister’s Personal Injury, Employment and Commercial teams. He is regarded as “very persuasive and effective” (Legal 500, 2015).