JOYCE V O'BRIEN AND ANOTHER

[2013] EWCA Civ 546, Court of Appeal, Lady Justice Rafferty, Lord Justice Elias and Mr Justice Ryder, 17 May 2013

Insurance (motor) - Duty of care - Ex turpi causa - Claimant injured while leaving scene of a theft in a van driven by the defendant - Whether claimant could recover from defendant for negligent driving

The claimant and defendant were respectively nephew and uncle who on occasion worked together in gardening/labouring work. The parties had together stolen some extending ladders and had loaded them onto the defendant's Ford Transit van. The ladders were too long to fit inside the van with the doors closed, and so the back rear door was left open with the ladders protruding. The claimant stood on the rear foot plate of the van, holding onto the van with his left hand and the ladders with his right hand. As the van negotiated, at some speed, a sharp left turn at a road junction, the claimant lost his grip and fell off. The defendant subsequently pleaded guilty to a charge of dangerous driving, in that although he was not exceeding the speed limit he was driving at a speed which was unsafe in the circumstances. The claimant commenced proceedings against the defendant. The claim was defended by the defendant's liability insurers. They pleaded two defences. First, there was no duty of care owed to the claimant, in that it was impossible for the law to lay down an appropriate standard of care in such circumstances. Secondly, even if there was a duty of care and it had been broken, the claimant was precluded by his own conduct from recovery, on the basis of the maxim ex turpi causa non oritur actio. Cooke J held that both defences succeeded, and that in cases such as the present the defences were interchangeable. He rejected the claimant's argument that the defence did not apply where the criminality and the injury were disproportionate. On appeal, the Court of Appeal upheld the ruling, but only on the basis of causation: where the character of the joint criminal enterprise was such that it was foreseeable that the claimant might 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 materialised, the injury could properly be said to be caused by the criminal act of the claimant. That was the case on the facts