Factual and Procedural Background
The case arises from an accident on 31 January 2007 involving a stolen trials bike being ridden dangerously on a cycle path by a 16-year-old boy (the Defendant) without a driving licence or insurance. The Defendant was carrying a pillion passenger, another 16-year-old boy (the Plaintiff), who suffered serious injuries. The Plaintiff brings the claim through his mother and litigation friend.
The Defendant was uninsured and lacked assets, so the Motor Insurers' Bureau (MIB) was joined as a second defendant. The third defendant was the driver of a minibus involved in the collision, who denied negligence. The MIB resisted liability on grounds including the Plaintiff's contributory fault and knowledge of the bike’s uninsured and stolen status. The trial judge found the Defendant liable in negligence, rejected the MIB’s ex turpi causa defence, but held the MIB’s liability was excluded due to the Plaintiff’s knowledge of the uninsured use. The minibus driver was found negligent, and the Plaintiff’s damages were reduced by 45% for contributory negligence, including 15% agreed for failure to wear a helmet. Liability was apportioned 80% to the Defendant and 20% to the minibus driver, with costs awarded largely to the MIB to be paid by the minibus driver.
The minibus driver appeals against the rejection of the ex turpi causa defence, the finding of negligence against him, the quantum of contributory negligence, and the costs order.
Legal Issues Presented
- Whether the defence of ex turpi causa applies to bar the Plaintiff’s claim against the minibus driver, given the Plaintiff’s participation in the dangerous riding of the stolen trials bike.
- Whether the minibus driver was negligent in the circumstances of the collision.
- Whether the reduction of damages for the Plaintiff’s contributory negligence was appropriate and if the percentage should be increased.
- Whether the costs order requiring the minibus driver to pay the MIB’s recoverable costs was appropriate.
Arguments of the Parties
Appellant's Arguments
- The judge erred in characterising the Plaintiff’s role as merely “going for a ride” rather than participation in a joint enterprise involving dangerous riding.
- The Plaintiff was a willing participant in a joint criminal enterprise with the Defendant, thus barring recovery under ex turpi causa.
- The Plaintiff’s injuries were caused by his participation in the joint enterprise, so the defence should succeed.
- The apportionment for contributory negligence was too low and should be increased to reflect the Plaintiff’s blameworthiness, suggesting a total reduction of 65%.
- The costs order was wrong; the Plaintiff should bear the MIB’s costs alone, as the claim against the MIB was dishonest and unreasonable.
Appellee's Arguments
- The trial judge’s findings of fact and inferences should be given deference, particularly regarding the Plaintiff’s role.
- The Plaintiff was not actively encouraging the dangerous riding but was simply a passenger, so the ex turpi causa defence should not bar recovery against the minibus driver.
- The contributory negligence reduction was appropriate and should not exceed one third.
- The claim against the MIB was reasonable given the factual uncertainties and the denial of negligence by the minibus driver.
- The costs order was within the judge’s discretion and should not be disturbed.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Pitts v Hunt [1991] 2 QB 24 |
Application of ex turpi causa to bar recovery where claimant was a participant in a joint criminal enterprise involving dangerous driving. |
The court found that the Plaintiff and Defendant were joint participants in dangerous riding, so the Plaintiff could not recover against the Defendant. |
| Gray v Thames Trains Ltd [2009] 1 AC 1339 |
Clarification of the ex turpi causa defence focusing on causation and public policy, distinguishing between damage caused by criminal acts and tortious acts. |
Applied to emphasize causation analysis in determining whether recovery is barred by the claimant’s own criminal conduct. |
| Joyce v O'Brien [2013] EWCA Civ 546 |
Integration of joint criminal enterprise principles with causation-based ex turpi causa defence. |
The court held that injury caused by a co-participant’s negligence in a joint criminal enterprise is treated as caused by the claimant’s own criminal conduct, barring recovery. |
| Delaney v Pickett [2011] EWCA Civ 1532 |
Application of causation test in ex turpi causa defence where claimant’s criminal activity merely gave occasion for tortious act. |
Held that damage was caused by negligent driving, not the claimant’s criminal activity, so the defence failed. |
| Les Laboratoires Servier v Apotex Inc [2014] UKSC 55 |
Framework for ex turpi causa defence emphasizing it as a rule of law based on public policy, not discretionary or fact-based. |
Guided the court’s principled approach to determining what constitutes turpitude and the relationship to the claim. |
| Jackson v Murray [2015] UKSC 5 |
Standards for appellate review of contributory negligence apportionment. |
Supported the court’s adjustment of contributory negligence apportionment where the lower court’s figure was outside the ambit of reasonable disagreement. |
| Revill v Newbery [1996] QB 567 |
Assessment of liability and contributory negligence where claimant engaged in criminal activity but was injured by defendant’s negligence. |
Held that claimant was not barred by ex turpi causa but damages were reduced for contributory negligence. |
| R v Baldessare (1931) 22 Cr App R 70 |
Joint criminal enterprise liability for consequences of reckless driving. |
Provided precedent for imputing responsibility to passengers in joint criminal driving enterprises. |
| R v Mahmood (Asaf) [1995] RTR 48 |
Limits on joint enterprise liability in road traffic offences. |
Distinguished cases where joint enterprise was not established, but affirmed principle where it was. |
| Irvine v Commissioner of Police for the Metropolis [2005] EWCA Civ 129 |
Guidance on costs orders involving multiple defendants. |
Informed the court’s discretion in ordering costs payable by unsuccessful defendants to successful defendants. |
Court's Reasoning and Analysis
The court carefully examined the factual findings that the Plaintiff and Defendant were close friends and jointly participated in a ride on a stolen trials bike, which was known to be ridden dangerously. The Plaintiff’s presence on the bike was not passive; it implied encouragement to the Defendant’s dangerous driving. The court found that the Plaintiff’s conduct amounted to participation in a joint criminal enterprise involving dangerous driving, which constituted turpitude for the purposes of the ex turpi causa defence.
Applying the principles from relevant authorities, especially Joyce v O'Brien, the court determined that the Plaintiff’s injury was caused by his own criminal conduct in conjunction with the Defendant’s negligence. Consequently, the Plaintiff’s claim against the Defendant and the MIB was barred by the ex turpi causa principle.
However, the court distinguished the Plaintiff’s claim against the minibus driver. The minibus driver owed a duty of care unaffected by the Plaintiff’s criminal conduct. The accident was caused by both the Plaintiff’s and the minibus driver’s negligence. The court rejected the ex turpi causa defence as a complete bar in this context, reasoning that the injury resulted from two causes and that the criminal conduct was only one cause.
Instead, the Plaintiff’s contributory negligence should be assessed to reflect his responsibility for the accident. The court held that the appropriate remedy was to allow the claim against the minibus driver but reduce damages to reflect the Plaintiff’s contributory fault.
On the negligence of the minibus driver, the court upheld the trial judge’s findings that the driver was negligent in failing to check the cycle path adequately, especially given prior awareness of trials bikes being ridden dangerously in the area.
Regarding contributory negligence, the court found the trial judge’s 45% reduction too low. Given the Plaintiff’s participation in the joint criminal enterprise and his awareness of the risks, the court increased the reduction to 65% (including the agreed 15% for failure to wear a helmet), reflecting a greater share of responsibility.
On costs, the court upheld the trial judge’s discretion in ordering the minibus driver to pay 90% of the MIB’s costs. The judge considered the reasonableness of the Plaintiff’s claim against the MIB and the minibus driver’s refusal to accept negligence, which necessitated the MIB’s involvement. The court rejected the submission that the Plaintiff’s claim was dishonest and confirmed that the costs order did not work injustice.
Holding and Implications
The court’s final decision was as follows:
- The appeal on liability is allowed in part: The reduction for the Plaintiff’s contributory negligence is increased from 45% to 65%.
- The appeal is dismissed in all other respects: The rejection of the ex turpi causa defence against the minibus driver is upheld; the finding of the minibus driver’s negligence is upheld; and the costs order requiring the minibus driver to pay the MIB’s costs is upheld.
The implications are that a claimant who participates in a joint criminal enterprise involving dangerous driving cannot recover against co-participants but may recover against third parties whose negligence contributes to the injury, subject to appropriate contributory negligence deductions. The ex turpi causa defence is applied with a focus on causation and public policy, balancing denial of recovery against fairness to negligent third parties. The court also affirms the discretion to make costs orders protecting successful defendants from bearing the costs of unsuccessful co-defendants where claims are reasonably brought.