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Richard Lynagh KC & Suzanne Chalmers successfully rely upon ‘ex turpi causa’ to defeat claim

Joyce v O’Brien & Tradex Insurance Co Ltd [2012] EWHC 1234 (QB)

Richard Lynagh KC and Suzanne Chalmers successfully represented the Insurer Defendants at the trial of this matter before Mr Justice Cooke. The case involved consideration of the scope and application of the maxim ex turpi causa non oritur actio in the context of a road accident.

The Claimant unfortunately suffered a very serious head injury when he fell from the back of a Ford Transit van driven by the First Defendant who held a policy of insurance issued by Tradex Insurance, the Second Defendant. The accident occurred as the van negotiated a sharp turn at speed in a residential area.

Tradex had declined indemnity under the policy on the grounds that the van was being used for a purpose outside the scope of the cover.  However, Tradex accepted that, in the event that the First Defendant was found liable to the Claimant, they would be liable to satisfy the judgment by virtue of Article 75.

The First Defendant did not appear at, or take any part in, the trial.

The matter was heard on 14 and 15 May with judgment being delivered on 17 May 2012.

Tradex alleged that at the time of the accident the Claimant and the First Defendant were jointly engaged in the theft of a pair of ladders from outside a nearby house. It was contended by Tradex that the reason that the van was being driven quickly was to escape from the scene of the theft and that the Claimant was standing on the rear step or bumper of the van in order to hold onto the ladders because they were too long to fit inside the van.

The Judge found that such allegation was made out on the evidence.

The basis and development of the law relating to the maxim ex turpi causa non oritur actio were considered in detail and cases such as Ashton v Turner [1981] 1 QB 137, Pitts v Hunt [1991] 2 QB 24, Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218 and Gray v Thames Trains [2009] 3 WLR 167 were examined.

The Claimant’s claim was dismissed against both Defendants. The Judge ruled that as a matter of public policy 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. The Judge also held that where the Claimant and the Defendant are jointly engaged in a criminal enterprise such as the one in question the Defendant does not owe a duty of care to the Claimant.

Having considered the test of causation suggested by Lord Hoffmann in Gray v Thames Trains the Judge further ruled that the unlawful activity of the Claimant in the theft and getaway was as directly causative as the driving of the First Defendant whereby the Claimant was precluded from recovering for the consequences of his own criminal conduct.

Click here for the judgment.

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