MIB’s ex turpi defence fails

The Motor Insurer’s Bureau (MIB) failed to succeed in a defence of ex turpi causa non oritur actio in the sad case of Liam Clark v Darren Farley, MIB and Ryan Edmonds which came before Mrs Justice Yip in the High Court in April 2018.

The claimant, Liam Clark, suffered a severe traumatic brain injury as a result of a road traffic accident on 16 September 2012. Liam was 15 years old when he was riding as a pillion passenger on a motorcycle driven by the third defendant, Ryan Edmonds.

Liam had been out with friends when he had found himself at Bold Forest Park near St Helens, Merseyside. There was a pathway in the park which ran adjacent to the M62 motorway and had become a regular haunt for motorcycle riders. The path had been nicknamed the “Mad Mile”.

Liam, for whatever reason, agreed to ride as a pillion passenger on Mr Edmond’s motorcycle and was driven along the “Mad Mile” during which time they were involved in a head on collision with a motorcycle ridden by the first defendant, Darren Farley. Liam was thrown from the motorcycle.  He was not wearing a helmet and suffered life changing injuries. Both Farley and Edmonds were riding without insurance or an appropriate licence.Liam made a claim for damages by way of his mother as litigation friend. He issued proceedings against Farley, Edmonds and the MIB under the Uninsured Drivers’ Agreement.

The MIB defended the claim in its entirety relying on an ex turpi defence. They stated that Liam was involved in a joint illegal enterprise with Farley and Edmonds by encouraging or assisting the offence of dangerous driving. If that defence failed, they alleged contributory negligence against Liam on two grounds:

1. That he was to blame allowing himself to be carried on a motorcycle in such circumstances;
2. That he was to blame for failing to wear a helmet.

Liam contested the first ground for contributory negligence but accepted the second regarding the helmet. The parties had agreed before trial that an appropriate reduction for failure to wear a helmet was 12.5%. That reduction was approved by Mrs Justice Yip.

In her judgment Mrs Justice Yip accepted that the riding of both Edmunds and Farley would meet the threshold for the offence of dangerous driving. She considered the Court of Appeal case of McCracken v Smith, MIB and Bell 2015 EXCA Civ 380. This involved a claimant injured whilst riding as a pillion passenger on a stolen motorcycle when it collided with a minibus. The case put forward a two-stage test in cases involving an ex turpi defence (1) consideration of whether the claimant’s conduct amounted to “turpitude” and (2) if so, whether the claim against each party involved is founded on that turpitude.

In Liam’s case, the alleged “turpitude” was the offence of joint enterprise in respect of the dangerous driving of the respective riders. Mrs Justice Yip considered the case of R v Jogee 2016 UKSC 8 which set down evidential burden to be satisfied in a case involving joint enterprise of dangerous driving. The test was effectively did Liam encourage or assist the rider in his dangerous riding. The test had to be applied to the case against each rider separately.

Mrs Justice Yip considered the facts of the case when applying the legal test. There was no evidence that Liam had been to the Mad Mile before and in fact Farley did not recall ever seeing him there before. She also found that whilst the path was referred to as the Mad Mile, that there was no evidence that it was used as a race track. The witness evidence indicated it was just a place where people would ride motorcycles up and down. She also rejected evidence from Farley that he had seen Liam riding a motorcycle on many occasions around a local housing state. Liam’s mother stated this was not true and Mrs Justice Yip preferred her evidence describing her as a “patently honest witness”.

After reaching those findings of fact, Mrs Justice Yip rejected the MIB’s ex turpi defence. She did not believe that Liam must have known that the motorcycle he was riding on was going to be ridden dangerously. She found no evidence that he encouraged or assisted Edmonds to drive dangerously. He was not a party to a criminal joint enterprise of dangerous driving and that also applied to the dangerous driving of Farley. She considered the respective blameworthiness of Farley and Edmonds and found that they shared responsibility for Liam’s accident on a 50/50 basis.

After rejecting the MIB’s defence, Mrs Justice Yip went on to consider the issue of contributory negligence. She found that Liam should have foreseen the inherent risk in riding as a pillion passenger along the path. Whilst he was young, he was old enough to be conscious of the general risks of motorcycles. She considered the relative blameworthiness of Liam and the causative potency of Liam’s actions The MIB contended for an overall finding of contribution including the failure to wear a helmet of 50%. Mrs Justice Yip rejected this saying she did not believe Liam’s responsibility was equal to the defendants (50% each) and made a total finding of 40%. Liam will now receive 60% of the total value of his claim and damages will be assessed at a later stage.

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