On appeal, Suzanne Chalmers upholds trial Judge’s application of the ‘ex turpi causa’ maxim…
The decision of the Court of Appeal in Beaumont and O’Neill v Ferrer reinforces the application of the existing law on ex turpi causa non oritur actio to personal injury claims where the defendant is not a party to a criminal joint enterprise.
The Claimants both suffered serious head injuries when they jumped from a moving taxi driven by the Defendant. They were part of a group of six young men who decided to take a minicab into Manchester city centre and ‘jump’ the taxi without paying the fare. As the taxi neared its destination, the Defendant stopped the vehicle. Three of the passengers immediately got out and ran off. The Defendant then drove off with one rear door open and the three remaining occupants in the taxi.
Suzanne Chalmers successfully represented the Defendant at the trial before Mr Justice Kenneth Parker ([2014] EWHC 2398 reported at [2015] PIQR P2). The trial Judge found that the two Claimants deliberately jumped from the taxi in furtherance of their joint criminal enterprise to evade payment of the fare. He held that, even if the Defendant was in breach of his duty of care in driving on as he did, that breach did not cause the Claimants’ injuries. In any event, the Claimants were barred from recovery by the maxim ex turpi causa non oritur actio.
On appeal by the Claimants, the Court of Appeal unanimously dismissed the appeal, holding that the doctrine ex turpi causa applied. The leading Judgment, with which Moore-Bick LJ and Beatson LJ agreed, was given by Longmore LJ. In his judgment, he examined the application of the doctrine in the cases of Sacco v Chief Constable of South Wales Constabulary (CA) (Unrep.) 15 May 1998, Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218, Gray v Thames Trains [2009] 3 WLR 167 and Joyce v O’Brien [2014] 1 WLR 70. He concluded that the Defendant, who was not a partner in the Claimants’ crime, should be in a stronger case for the application of the doctrine. Furthermore, the crime of making away without payment was far from incidental, indeed it was integral both to the claim itself and any negligence on the part of the driver.
As Longmore LJ noted, there is currently some disagreement in the Supreme Court as to the terms in which the principle behind the ex turpi causa maxim should be stated (see the cases of Hounga v Allen [2014] 1 WLR 2889, Les Laboratoires Serviers v Apotex Inc [2015] AC 430 and R (Best) v Chief Land Registrar [2016] QB 23). However, that divergence of opinion did not affect the outcome of the appeal. There were no other public policies which outweighed the principle that those engaged in the commission of a crime should not be able to recover for the consequences of their criminal conduct.
In the light of the application of the doctrine ex turpi causa, their Lordships did not consider whether the Judge was also correct to dismiss the claim on causation grounds. Accordingly, further clarification by the higher courts of the principles of causation and ‘novus actus interveniens’ must await future decisions.
