A recent Court of Appeal case in England has considered the application of the legal principle of ex turpi causa non oritur causa (also applicable in Scotland) which prevents legal claims for compensation being founded on illegal or immoral conduct.
The case of Daniel McCracken v Damian Smith, Motor Insurers’ Bureau & Darren Bell [2015] EWCA Civ 380 involved two 16 year olds joy-riding on a stolen trial bike on a public cycle-path. Damian Smith was driving the motor-bike (without a licence or insurance) and Daniel McCracken was his pillion passenger. Neither was wearing a helmet. The bike was not designed to carry a pillion passenger. Damian Smith, whilst driving the trial bike too fast along a path intended for bicycles, collided with a minibus being driven by Darren Bell. Mr Bell was also found to have been driving negligently when he turned, without due care and attention, from the road across the path of the bike into a local community centre.
Daniel McCracken suffered serious injuries and claimed compensation from Damian Smith, Darren Bell and the Motor Insurers’ Bureau (who will often have to pay compensation on behalf of non-insured drivers, such as Damian Smith, who have no assets to meet any decree that might pass against them).
Against Daniel McCracken, it was argued that his participation in the driver, Damian Smith’s wrong-doing should disentitle him from being compensated for his injuries or, at the very least, he should be found to have been contributorily negligent for his own injuries.
The English Court of Appeal found that Daniel’s participation with Damian Smith in a joint enterprise to ride the bike dangerously was conduct amounting to “turpitude” for the purposes of the “ex turpi causa” defence. It agreed that the defence applied in relation to Daniel’s claims against Damian and the MIB. Effectively, he was found to be jointly responsible for the dangerous driving with Damian and he was prevented from claiming damages against him and the MIB.
However, Damian’s claim against the minibus-driver was treated differently. Daniel’s injuries were caused by (1) the negligence of Damian Smith and (2) separately, the negligence of Darren Bell. It could not be said that, but for Daniel’s participation in wrong-doing with Damian, the accident would not have occurred. Darren Bell was found to have been driving negligently when he collided with the trial bike.
The court considered that the right approach, which would serve the public interest, was to allow Daniel to claim in negligence against Darren Bell but to reduce any recoverable damages in accordance with the principles of contributory negligence, so as to reflect Daniel’s own fault and responsibility for the accident. This approach, it said, took into account both the negligent driving for which Mr Bell was responsible and the dangerous driving for which Daniel was responsible. This meant that Daniel could recover damages for the negligence of Mr Bell but not for Daniel’s own criminal conduct with Damian.
The causal contribution of the dangerous riding of the bike for which Daniel was responsible can and should be taken into account in the assessment of his contributory negligence. The court held that Daniel’s fault went beyond allowing himself to be a pillion passenger on the bike. It extended to his participation with Damian in a criminal joint enterprise to ride the bike dangerously. He was the author of his own misfortune.
The court found that a fair reflection of the greater degree of blameworthiness and causative potency of Daniel’s conduct would be an overall deduction of 65% (50% plus the already agreed deduction of 15% for the fact that Daniel was not wearing a helmet that could have limited his injuries). Accordingly, Daniel was only able to recover from Mr Bell, the minibus driver, 35% of the damages he might have otherwise recovered.
Take the next step
- Call us on 0131 226 5151