Update | Road traffic: illegality as a defence

If an individual embarks on a criminal enterprise and in the process sustains injury as a result of the wrongdoing of another, it may seem repugnant to any sense of justice that such a criminal should recover compensation in respect of such injury. Surely the policy of the law would prevent recovery of compensation in such cases involving illegality on the part of the claimant?

Psychiatric injuries

On the morning of 5 October 1999 Mr Kerrie Gray was a passenger on a train which collided with a high speed train outside Paddington station. The accident caused the death of 31 people and over 500 were injured. Gray only sustained minor injuries but he went on to develop post traumatic stress disorder and depression. In August 2001 while still suffering from his psychiatric injuries and while driving Gray became involved in an altercation with a drunken pedestrian, whom he stabbed and killed. ?He pleaded guilty to manslaughter on grounds of diminished responsibility and an order was made for his detention in a psychiatric hospital.

The original rail accident had been caused by the admitted negligence of Thames Trains and Gray brought an action in respect of his injuries, including a claim for the loss of earnings, following his arrest and custody for the manslaughter of the pedestrian. Gray's action also included a claim for indemnity in respect of any claims brought against him on behalf of the pedestrian's family.

Thames Trains relied on the public policy defence that an action cannot be founded ?on a criminal or immoral act - the ex turpi causa rule.

When Gray's cause of action came into existence, on the date of the Paddington rail crash, there was nothing criminal, base or immoral about the cause of action. He was the innocent victim of a rail crash and he had led a normal life up to that point and he had not exhibited any violent tendencies. It was as a result of his psychiatric injuries that he found himself committing the offence of manslaughter. Nevertheless, by his plea in the Crown Court, he had acknowledged that he had a responsibility for the deliberate stabbing of the pedestrian.

The case came before the House of Lords where Lord Hoffmann observed that the defence of illegality has two formulations: a narrow formulation and a wider one (Gray v Thames Trains [2009] UKHL 33). In the narrow formulation a claim cannot be brought in respect of the direct consequences of the sentence of a criminal court; in the wider formulation the defence acts to deny a claim where the tortious act of the defendant arises out of criminal activity on the part of the claimant. In respect of the claim for Gray's loss of earnings from the date of his arrest and custody, the narrow form of the rule clearly caught the situation and no claim could be brought. The claim for indemnity was not caught by the narrow form and consideration had to be given as to whether this too should be barred on grounds of policy. In the wider formulation the principle applies when the civil claim is based upon the claimant's own criminal act and the facts giving rise to the claim must be inextricably linked to the criminal activity; it is not sufficient if the criminal activity merely gives occasion for the wrongful conduct of the defendant. Thus there must be a causative nexus between the criminality and the injury or head of loss giving rise to the civil claim. Applying the wider formulation of the rule Gray's claim for indemnity was defeated.

Bound up with tort

The application of ex turpi causa is not straightforward and the courts have to determine the line between criminality which merely sets the background in which a tort is committed and criminality which is bound up with the tortious act. In Pickett v Delaney [2011] EWCA Civ 1532 the claimant was travelling in the defendant's car jointly in possession of a large quantity of cannabis and the purpose of the journey was the transportation and re-sale of the cannabis. The defendant, who was uninsured, negligently crashed the vehicle and the claimant brought an action in respect of his severe injuries. The trial judge found against the claimant on the grounds of his illegality.

The Court of Appeal reversed the judge's finding on this point indicating that the matter was one of causation. The injury to the claimant was not caused by his participation in a criminal, drug-dealing enterprise but because of the negligent driving of the defendant. Nevertheless the judgment obtained against the uninsured defendant could not be enforced against the Motor Insurers Bureau (MIB) because of the exception set out in clause 6 of the 1999 Uninsured Drivers' Agreement whereby the MIB does not have to meet a judgment where the claimant was being carried in the vehicle and he knew or ought to have known that the vehicle was being used in the furtherance of a crime.

Private land

Another unsuccessful attempt was made to deny a claim on the grounds of illegality in Clarke v Clarke [2012] EWHC 2118 (QB). A family feud came to its culmination when two vehicles met on a gravel farm track. The claimant and the defendant and other members of the family had arrived at the scene armed with a variety of home-made weapons. A fight ensued during which the claimant, armed with a rusty machete, smashed a passenger side window of a Jeep being driven by his sister in law, the defendant. A little later the defendant drove the Jeep through a rail and post fence and into a paddock. It was while the vehicle was being driven in the paddock that it swerved and struck the claimant causing him severe injury. The judge found that ex turpi causa did not apply because although the claimant's participation in the violence was clearly reprehensible, it was not the proximate cause his injuries, which in fact had been caused by the negligent driving of the defendant. Again, however, the defendant was not insured to drive the Jeep and because the accident occurred on the paddock which was private land the MIB was not liable to meet the judgment because the use of the vehicle giving rise to the liability did not occur on a road or other public place and so it did not have to be covered by a motor insurance policy.

Assuming that Clarke's sister had deliberately driven the car to injure him then any claim for criminal injuries compensation would be likely to fail or any award would be reduced substantially under paragraph 13(1)(d) of the criminal injuries compensation scheme, which allows the applicant's conduct before, during or after the infliction of the criminal injury to be taken into account as appropriate.

Thus in the context of criminal injuries compensation it is not necessary to establish a causative nexus between the reprehensible behaviour of the applicant and the infliction of the injury in respect of which he seeks compensation in order for the claim to be reduced or defeated whereas in the civil court such a causative nexus is a necessary condition for the application of the policy of ex turpi causa.

Duty of care undermined

The defence of illegality did apply in Joyce v O'Brien [2012] EWHC 1324 (QB) where two men stole a set of ladders and placed them in a van without securing them. The claimant stood on the tailgate of the van with the doors open and the ladders sticking out while the defendant drove the van in an attempt to ensure their getaway. The van negotiated a corner too quickly and the claimant was flung from the van sustaining severe injuries. Rather than attending to the claimant's injuries, the defendant made off with the ladders and deposited them in a nearby alley in an attempt to avoid being apprehended for the theft of the ladders.

The judge found that ex turpi causa applied so as to undermine the existence of a duty of care between the co-conspirators committing the joint enterprise of theft and the claim was defeated. Here the vehicle ?was being driven in the course of the criminal enterprise and it was not possible to determine the standard of care to be adopted between the parties in such an enterprise.

The application of ex turpi causa so as to undermine the existence of a duty of care is in distinction to Gray v Thames Trains where the original cause of action was not affected be illegality because at that stage ?no illegal act had been committed and so the principle there only acted so as to negative the recovery of heads of loss as opposed to acting to negative the existence of a duty of care.

The defence of illegality is a powerful defence which acts to defeat a claim completely and so it is an attractive defence for defendants and their insurers to consider. It is surprisingly limited by the need to establish that the illegal or immoral act, no matter how reprehensible, must have been the proximate cause of the injury and did not merely present the occasion on which the tort was committed. Accordingly if a terrorist was driving carefully in order to deliver a bomb and in the course of his journey he was injured by a negligent, insured motorist then the terrorist's illegal conduct, no matter how reprehensible, would not prevent him from recovering damages on account of his injuries because the criminality merely gave rise to the occasion of the accident and was not the cause of it.