Wednesday, 11 July 2012

Ex Turpi Causa in RTA Cases: about as clear as mud


Should a thief who is injured in the course of a burglary be able to sue a house-owner if, say, a creaking and rotten floorboard collapsed as he was tiptoeing around the house, causing him to fall and break his arm?

Many of us will unhesitatingly say ‘no, of course not’. Others might go further and say that if the home-owner went on to injure the burglar, rather than help him, he should not, in law, be liable. After all, as the tabloid press like to remind us, an Englishman’s home is his castle.

But what of a burglar injured by the negligent driving of a co-conspirator while making a getaway? This scenario was recently before the court in the case of Joyce v O’Brien and Tradex. Mr O’Brien stole a pair of ladders from the front garden of a house and put them in the back of a Ford Transit van. He sped off, with his nephew (Mr Joyce) standing on a footplate at the rear of the van, holding onto the ladders. Having careered around a couple of corners, Joyce lost his grip, fell and sustained a serious head injury.

Joyce went to law.  He argued that O’Brien’s insurer, Tradex, should pay him compensation, which raised an interesting point of law: given that both men were engaged in a joint criminal enterprise, did the ex turpi causa principle apply? Latin scholars will recall the maxim in full – it is ‘ex turpi causa non oritur actio’. In plain English, it means one cannot seek redress where one has first acted dishonourably. 

The court held that Joyce’s injuries were caused not just by O’Brien’s driving but by his nephew’s precarious position on the footplate, where he was attempting to secure the ladder as well as himself. There was therefore a causation problem with Joyce’s claim, but it also failed as a matter of general public policy. As Richard Lynagh QC and Suzanne Chalmers, who represented Tradex, have it here: “a participant in a joint enterprise of theft which involves dangerous driving in order to escape the scene cannot recover for injuries suffered in the course of that enterprise.” Moreover, a driver could not owe a duty of care to his co-conspirator in a joint enterprise of theft.

The case is interesting in its own right, and it put me in mind of two recent Court of Appeal decisions. The first is Churchill Insurance v Wilkinson [2010]. Here, the passengers, who were insured, allowed an uninsured driver behind the wheel. The second case is Delaney v Pickett, heard in 2011. This case involved a reckless driver who was found to be a habitual cannabis user who was convicted of dangerous driving. In both cases, the insurers argued that the accident victims had breached their policy terms and were therefore not entitled to compensation.

There is an important backdrop to both cases – section 158 (1) of the Road Traffic Act, which gives an insurer the right to recover any outlay from their insured where their insured has allowed the use of a vehicle by an uninsured driver. There is also a related case, namely Cockayne v Evans, in which Ms Evans gave permission to Adam Cockayne to drive her motorcycle without giving any thought to whether he was insured or not (he wasn’t).

Taken as a whole, the three cases are complicated. The facts differ in each, and it would be inappropriate to rehearse them all here. However, suffice to say that Wilkinson V Churchill ultimately went to the European Court of Justice, which decided that section 151 (8) does not accord with European Directives on the harmonisation of motor insurance. In other words, it cannot operate to prevent a claimant from a right of entitlement to damages, where the claimant is a victim, albeit that the claimant permitted the use of a vehicle by an uninsured person.

Despite this, the Court of Appeal decided not to consider the Wilkinson case when it came to decide the Delaney v Pickett appeal. This, too, visited ex turpi causa territory, because the vehicle being driven was being used to buy and then resell cannabis. The Court of Appeal opted to treat the claim as an uninsured driver claim pursuant to section 143 of the RTA (which governs Motor Insurance Bureau claims) but concluded that it could be legitimately excluded.

Confused? Don’t worry – everyone in the PI sector is too. The bottom line is that while each case should be treated on its own facts, there is an absence of congruity between domestic law and European Directives on motor insurance. Watch this space: just as thieves will continue to bungle their getaways, it’s a certainty that the law here will soon be tested again at ECJ level.