Injury claims and the defence of “ex turpi causa”
“Ex turpi causa” is a legal doctrine which states that a claim will not succeed if it arises in connection with the claimant’s own illegal act. It is not uncommon for insurers to raise this at the slightest opportunity in order to avoid a claim.
In the recent case of Liam Clark (a protected party suing by his mother and litigation friend, Nicola Woods) v (1) Darren Lee Farley (2) Motor Insurers’ Bureau and (3) Ryan Edmonds , the court explored the circumstances in which the defence of ex turpi causa could reasonably be upheld.
The claimant in this case was a fifteen year old at the time of the accident in 2012 and aged 21 at the date of the trial on liability. He had suffered catastrophic injuries following a collision between the motorcycle on which he was a pillion passenger and another motorcycle. They were travelling in opposite directions on a path known as the “Mad Mile” which was popular with motorcyclists when the collision occurred. Neither motorcyclist was insured and the claim was initially commenced against the rider of the other motorcycle (the first defendant) and the Motor Insurers Bureau (MIB), which covers claims against uninsured drivers. However, the MIB required the rider of the motorcycle on which the claimant was travelling to be joined as the third defendant before raising the defence of ex turpi causa. Their positon was that the claim was barred on the basis that the claimant was involved in a joint illegal enterprise with the first and third defendants, in that he knowingly engaged in dangerous riding on a path that was narrow and where there was potential for an accident.
Neither motorcycle was roadworthy and both were in a dangerous condition but this did not cause or contribute to the accident. The third defendant’s motorcycle was not suitable for carrying a pillion passenger and the frame was broken but it was established the claimant could not have known that.
There were suggestions the claimant was familiar with the path and had been there before, but nothing was conclusive.
In the alternative, the MIB invited the court to make a finding of contributory negligence against the claimant if their primary defence was rejected.
The claimant was not wearing a helmet and the parties agreed that the appropriate reduction to apply for contributory negligence would be 12.5% if the helmet issue stood alone.
The first and third defendants were unrepresented and whilst the first defendant did not make any submissions, the court found the third defendant to be less than a convincing witness.
In order to determine whether the MIB could succeed with its primary defence, it was agreed that a two-stage test applied involving :-
- consideration of whether the claimant’s conduct amounted to “turpitude” and
- if so, whether the claim against each rider was founded on that turpitude.
A number of case authorities, including McCracken v Smith, MIB and Bell were considered. In that case the conduct of claimant who had been injured whilst travelling as a pillion passenger on a stolen off-road motorcycle did amount to turpitude. He had known the motorcycle was stolen and that the rider had intended to ride it dangerously. His claim against the rider failed because the claimant was jointly responsible in law for the rider’s negligence and could not bring a claim for his own negligent act. However, the ex turpi causa defence failed in the claim against Bell, the driver of the minibus which collided with the motorcycle. There were two causes of the accident, the dangerous riding of the motorcycle and the careless driving of the minibus. As the claimant was not a party to Bell’s careless driving, he could recover against Bell subject to a reduction for contributory negligence for his actions.
The question of joint enterprise was considered in light of the Supreme Court decision in R v Jogee where it was accepted that the claimant must have intended to “encourage or assist the perpetrator to do the prohibited act with knowledge of any facts and circumstances necessary for it to be a prohibited act”.
In McCracken, it was concluded that the very presence of the claimant knowingly being on a stolen bike “must have been, and have been intended to be an encouragement to [the rider] to ride as he did”.
In this case it was not obvious that the claimant intended to encourage or assist the rider to ride dangerously. Mere foresight was not enough.
In distinguishing the cases of McCracken and Jogee, the court found the claimant, whilst intending to be carried on the motorcycle, had not known the motorcycle was to be ridden dangerously. He had not encouraged the third defendant to drive dangerously “with knowledge of the facts and circumstances necessary for it to be dangerous”. As the claimant was not found to be party to a joint enterprise in respect of the third defendant’s driving, it could not be logically held that he was party to a joint enterprise in relation to the first defendant’s driving. The claimant had no previous connections with either of the riders at the time of accident.
The MIB’s defence of ex turpi causa failed, however, there was no doubt that the claimant contributed to the causing of the accident. Whilst it was suggested that any finding of contribution in respect of the blameworthiness should be added to the reduction for the claimant’s failure to wear a helmet, that was rejected. The court found the claimant 40% to blame overall with the first and third defendants being equally culpable for the accident.
This is a helpful case which summarises the legal position in relation to the ex turpi causa defence. However, it is, of course, fact sensitive.
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