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Joyce v O'Brien & Tradex Insurance Co Ltd: Richard Lynagh QC and Suzanne Chalmers successfully defend the claim in the Court of Appeal

Summary

This case involved consideration of the scope and application of the maxim ex turpi causa non oritur actio in the context of a road traffic accident.  Richard Lynagh QC and Suzanne Chalmers successfully represented the Second Defendant insurance company at the trial of this matter before Mr. Justice Cooke.  On appeal by the Claimant, the Court of Appeal unanimously dismissed the appeal, holding that the maxim ex turpi causa applied.

In this case, the Court of Appeal has clarified and refined the law of ex turpi causa, as applied in cases involving joint criminal enterprise.


Material Facts

The Claimant unfortunately suffered a very serious head injury when he fell from the back of a Ford Transit van driven by the First Defendant who held a policy of insurance issued by Tradex Insurance Company Limited, the Second Defendant. The accident occurred as the van negotiated a sharp turn at speed in a residential area.

Tradex had declined indemnity under the policy on the grounds that the van was being used for a purpose outside the scope of the cover.  However, Tradex accepted that, in the event that the First Defendant was found liable to the Claimant, they would be liable to satisfy the judgment by virtue of Article 75.


The trial before Cooke J

The First Defendant did not appear at, or take any part in, the trial.  Tradex alleged that at the time of the accident the Claimant and the First Defendant were jointly engaged in the theft of a pair of ladders from outside a nearby house.  It was contended by Tradex that the reason that the van was being driven quickly was to escape from the scene of the theft and that the Claimant was standing on the rear step or bumper of the van in order to hold onto the ladders because they were too long to fit inside the van.  The Judge found that such allegation was made out on the evidence.

The trial Judge examined in detail the basis and development of the law relating to the maxim ex turpi causa non oritur actio and cases such as Ashton v Turner [1981] 1 QB 137, Pitts v Hunt [1991] 2 QB 24,  Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218 and Gray v Thames Trains [2009] 3 WLR 167 were examined.

The trial Judge dismissed the Claimant’s claim was dismissed against both Defendants. The Judge ruled that as a matter of public policy a participant in a joint enterprise of theft which involves dangerous driving in order to escape the scene cannot recover for injuries suffered in the course of that enterprise. The Judge also held that where the Claimant and the Defendant are jointly engaged in a criminal enterprise such as the one in question the Defendant does not owe a duty of care to the Claimant.

Having considered the test of causation suggested by Lord Hoffmann in Gray v Thames Trains the Judge further ruled that the unlawful activity of the Claimant in the theft and getaway was as directly causative as the driving of the First Defendant whereby the Claimant was precluded from recovering for the consequences of his own criminal conduct.


The appeal

The appeal was heard on 21 March 2013 and Judgment was handed down on 17 May 2013.  The leading Judgment, with which Rafferty LJ and Ryder J agreed, was given by Elias LJ.  In his judgment, Elias LJ first considered both English and Australian cases in order to examine the principles which had been developed in the context of injuries incurred in the course of joint criminal enterprises.  He then focussed upon the distinct principles which apply where the criminal is injured by a third party unconnected to the criminal activity before suggesting how the two stands of authority might be integrated.

In his judgment, in applying the causation principle developed in Gray, the Courts should recognise the wider public policy considerations which have led them to refuse a remedy in joint enterprise cases.  He formulated the principle to be applied 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.”

He stated that, whilst this principle did not necessarily exhaust all situations where the ex turpi principle applies in joint enterprise cases, he would expect it to cater for the overwhelming majority of cases. 

The Court of Appeal held that, although the applicable principle had been drawn more widely in the Court below, the trial Judge had correctly recognised that there were enhanced risks inherent in the enterprise and that the injury resulted from such a risk being realised and thus the injury was caused by the criminal conduct of the claimant.


Proportionality

In reaching its decision, the Court of Appeal rejected the submission of the Claimant that the trial Judge was wrong to hold that there was no room for the principle of proportionality in the operation of the ex turpi principle.  Elias LJ recognised that, given that the doctrine was one of public policy, there should be some flexibility in its application (the doctrine would not apply, for example, to minor traffic offences).  He also accepted that, in certain cases, there may be a problem in determining whether the offence attracts the application of the doctrine.  However, the theft of the ladders clearly fell on the side where the doctrine applies.  It was not merely an imprisonable offence but carried a seven year maximum sentence; it was not a strict liability offence which could be committed without any real moral culpability.


Click here for the judgment.


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