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PI and Civil Litigation

Law - practice - procedure

03 JUL 2013

Joyce v (1) O’Brien and (2) Tradex Insurance Company Ltd [2013] EWCA Civ 546

Liability - criminal acts - ex turpi causa

17 May 2013

Court of Appeal

Elias, Rafferty LLJ and Ryder J

The appellant and the first respondent are nephew and uncle respectively. The second respondent is the first respondent's insurer. On 21 April 2009, the appellant and first respondent stole a set of extendable ladders from a front garden. They fled the scene in the first respondent's van. In so doing, the appellant fell from the van and sustained a serious head injury. The first respondent subsequently pleaded guilty to dangerous driving.

The appellant brought proceedings against the first and second respondents in negligence. The second respondent submitted that neither respondent was liable in tort as at the time of the accident, the appellant and first respondent were involved in a joint criminal enterprise and the common law doctrine of ex turpi causa non oritur actio applied. At first instance, the trial judge found that the appellant and first respondent were involved in a joint criminal enterprise. Leave to appeal this finding was refused.

The trial judge continued to find in favour of the second respondent and ruled that (i) there is no duty of care between criminal participants to a crime in respect of an act done in connection with the commission of that crime; and, (ii) public policy dictates that the appellant could not recover compensation as a consequence of his criminal conduct [36]. The judge further ruled that the injury was caused by the appellant [38].

On appeal, the decision was upheld although the reasoning was slightly modified. The Court of Appeal (Elias LJ giving the judgment of the court) found that in principle a duty of care can exist between participants to a crime. However, where injury arises in the course of criminal conduct, liability should focus on causation rather than duty [28] and [37]. Elias LJ held at [29]:

‘[W]here 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.'

In turn, although the injury would not have arisen but for the first respondent's negligent driving, the injury was nonetheless caused by the appellant's engagement in a criminal activity [47]. Elias LJ concluded by stating that as the doctrine of ex turpi is one of public policy, there is "some flexibility" in its application. However, the offence of theft is clearly one of moral culpability falling within the doctrine [51]-[52].

Appeal dismissed

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