Thief cannot sue uncle who injured him during getaway

Applying the principle of ex turpi causa non oritur actio, Mr Justice Cooke said a claimant was not entitled to succeed in a claim where he had been involved in criminal conduct.

Delivering judgment in Joyce v O’Brien and Tradex Insurance [2012] EWHC 1324 (QB), Cooke J said the claimant was hanging onto the back of a Ford transit van when he fell off, as the van negotiated a sharp turn.

The judge said the uncle played no part in the case, but his insurer defended it, on the grounds that the men had stolen an extendable ladder from a nearby garden and were making their getaway.

“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,” Cooke J said.

“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 it was suggested that he could not be sure of the claimant’s involvement in the theft.

“It could be, it was said, that he was duped by his uncle into thinking that there was authority to remove the ladders from 17 Coniston Road.

“That, to my mind, is fanciful, given the knocking on the door, the taking of the ladders, the failure to secure them or the door and the claimant’s part in holding on to the ladders while standing on the rear step, with the first defendant driving off at speed.”

Cooke J said he was “entirely satisfied” that this was a theft in which each of the men played their part. “It was in criminal parlance a joint enterprise.”

The judge said it did not matter “which test or formulation” of ex turpi causa was applied, the result was that the claim must fail.

“As a matter of general public policy, a participant in a joint enterprise theft which involves a speedy getaway in a van, with one participant driving and the other clinging dangerously onto the stolen items and the rear of a semi-open van, with a door swinging, cannot recover for injuries suffered in the course of that enterprise.
“The driver cannot owe a duty of care to his co-conspirator and it is not possible to set a standard of care as to how fast the van should be driven, in circumstances where speed is necessary to get away and there is a need for the other co-conspirator to hang on desperately to the stolen items and the back of the open van in order to effect their joint objective of a speedy escape.

“Risk and danger were inherent in the enterprise itself. Furthermore, for the reasons I have already given, the unlawful activity of the claimant in the theft and getaway was as directly causative as the driving of the first defendant.

“The claimant is thus precluded from recovery for the consequences of his own criminal conduct.”