Ladder thief who fell off getaway van loses compensation battle

A thief who fell off a van being driven at high speed by his uncle as they escaped with some stolen ladders cannot sue the uncle's insurer, the Court of Appeal has ruled.

The court heard that David Joyce was seriously injured when he fell off the back of the van, being driven by his uncle, Edward O'Brien, who later pleaded guilty to dangerous driving.

In the High Court, Mr Justice Cooke said: "The insurers say that the claimant and/or the first defendant had placed the ladders in the back of the van but, because of their length, they could not fit inside it with the doors closed.

"They protruded out of the back, with the right hand door open. In consequence the first defendant stood on the rear foot plate, holding onto the back of the van by the closed left hand door or the roof, with the ladders held under or over his right arm while the right hand door flapped as the van travelled down the road."

Cooke J said he was "entirely satisfied" that both nephew and uncle played their part in the theft, which was a 'joint enterprise'.

Delivering judgment at the Court of Appeal in Joyce v O'Brien and Tradex Insurance [2013] EWCA Civ 546, Lord Justice Elias said the insurer argued that O'Brien was not liable in tort because both men were involved in a common criminal enterprise.

"They had stolen some ladders and were seeking to make a speedy escape from the scene of the crime. The submission is that in these circumstances public policy reflected in the ex turpi principle provided him with a complete defence."

Elias LJ said the principle applied generally when a claimant was injured while committing a criminal offence.

However, the authorities demonstrated that while it was widely recognised that the ex turpi principle would often apply to deny the claimant the right to damages in such cases, "the jurisprudential basis for reaching that conclusion is a matter of some dispute".

Elias LJ said counsel for the claimant accepted that the men wanted to make a "speedy getaway" and that a degree of careless driving was "inevitably envisaged" by the nephew.

Lord Justice Elias went on: "His submission is that the claimant never contemplated that the first defendant would drive in as reckless a manner as he did.

"This was something that was not anticipated and fell outwith the terms of any joint enterprise; it constituted an intervening act which broke the chain of causation between the claimant's criminality and his injuries."

Elias LJ said there was "no sensible basis for asserting that the very act which naturally arises in a quick getaway, namely driving too fast for the nature of the road" took the case outside the scope of the joint enterprise.

"Indeed, the accident which occurred was precisely the kind of accident which might have been foreseen as the result of the particular getaway arrangements even if the uncle had not been driving so dangerously."

The lord justice rejected the claimant's second grounds of appeal, that there was "room for the principle of proportionality" in ex turpi causa non oritur actio.

He said that, while there may be "some flexibility" and the doctrine would not apply to minor traffic offences, "wherever the precise line is to be drawn, the theft of these ladders would fall clearly on the side where the doctrine applies".

He added: "It is not merely an imprisonable offence but carries a seven year maximum sentence; it is not a strict liability offence which may be committed without any real moral culpability."

Elias LJ dismissed the claimant's appeal. Lady Justice Rafferty and Mr Justice Ryder agreed.