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Joyce v O'Brien & Tradex Insurance Company Ltd, Court of Appeal, 17 May 2013

10 June 2013
The issues

Ex turpi causa non oritur action – Gray v Thames Trains Ltd – where the claimant is entitled to recover if engaged in joint criminal enterprise

The facts

The claimant was seriously injured when he fell from the back of a van being driven by his uncle, Mr O’Brien. Mr O’Brien pleaded guilty to the offence of dangerous driving. The first defendant’s insurer argued that although the first defendant was driving without proper care he was not liable to the claimant because both men were involved in a common criminal enterprise having stolen some ladders and being in the act of making a speedy escape from the scene of the crime.

The decision

The authoritative statement of the relevant principles for determining when the doctrine of ex turpi will apply is contained in the speech of Lord Hoffman in Gray v Thames Trains Ltd. Lord Hoffman described, as the wider version of the ex turpi concept, the principle that “you cannot recover for damages which are the consequence of your own criminal act”. He noted that the wider rule had to be justified on the ground that it was offensive to public notions of the fair distribution of resources that a claimant should be compensated for the consequences of his own criminal conduct. Secondly, he noted that the wider rule might raise problems of causation.

In determining whether the ex turpi principle should apply he concluded that the ordinary test of causation should be adopted. In Gray Lord Hoffman was considering a case where the issue was simply whether the claimant had brought the injury on himself. Subsequently in Delaney v Pickett, the Court of Appeal had applied the same causation principle to a case of joint enterprise such as was the case for the Court of Appeal in this case. That case had been badly ended when a motor car driven by the first defendant was negligently driven. Subsequently packets of herbal cannabis were found on both claimant and defendant. The judge found that the purpose of the car journey had been to transport illegal drugs and applied the ex turpi principle. The Court of Appeal disagreed finding that as a matter of causation the damage suffered by the claimant was not caused by his criminal activity but was caused by the tortious act of the defendant by driving in a negligent way. The illegal acts were incidental to those to the criminal acts.

The Court of Appeal in Joyce took the view that the court should recognise the wider public policy considerations which had led them to deny liability in joint enterprise cases. The principle should be formulated as follows:

Where the character of the joint criminal enterprise was such that it was foreseeable that a party or parties might be subject to unusual or increased risks of harm as a consequence of the activities of the parties pursuant to their criminal objectives, and the risk materialised, the injury could properly have been said to be caused by the criminal act of the claimant even if it resulted from the negligent or intentional act of another party to the illegal enterprise.

There was no sensible basis for asserting that the very act which naturally arose in a quick getaway, namely, driving too fast for the nature of the road, took the case outside the scope of the joint enterprise. Indeed, the accident which occurred was precisely the kind of accident which might have been foreseen as a result of a particular getaway arrangement, even if the uncle had not been driving so dangerously. Applying therefore the principles set out by Lord Hoffman in Gray and having regard to the joint nature of the criminal enterprise, the judge had been plainly entitled to conclude that although the damage might not have occurred but for the negligent driving of the first defendant, it was caused by the criminal activity in which the claimant was engaged.

Given that the doctrine was one of public policy, the Court of Appeal accepted that there should be some flexibility in its operation. The doctrine would not apply, for example, to minor traffic offences. In this case however, wherever the precise line was to be drawn, the theft of the ladders would fall clearly on the side where the doctrine applied. It was not merely an imprisonable offence but carried a seven year maximum sentence and was not a strict liability offence which might be committed without any real moral culpability.

Appeal dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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