Plaintiff's illegality as a bar to recovery of personal injury damages*
Published online by Cambridge University Press: 02 January 2018
Despite recent attempts at judicial reformulation, the question of the effect of a plaintiffs illegal conduct on his right to pursue a common law negligence action for personal injury damages remains largely unsettled, and on an uncertain policy and doctrinal foundation. There is a continued obsession with public policy, whether expressed, as it is in England, as a matter of public conscience, or in Australia, as a proximity consideration preventing the finding of a duty of care. However formulated, public policy, in particular the public conscience, as an ad hoc means of determining the effect of a plaintiff's illegality, is unsatisfactory for this purpose, and has proved problematic and unmanageable for the courts. It is here submitted that personal injury negligence law, properly understood and deployed, does not require, nor is served by, the continued application of the illegality defence.
- Research Article
- Legal Studies , Volume 19 , Issue 1 , March 1999 , pp. 6 - 23
- Copyright © Society of Legal Scholars 1999
I wish to thank Tony Dugdale and Jill Cottrell for their helpful comments on the first draft of this article, and Jim Emptage, who, through our early discussion sessions, contributed to the formulation of the basic argument.
1. (1996) 1 All ER 291.
2. Plaintiff found two-thirds negligent, and damages reduced accordingly.
3. ‘Shotgun old-age pensioner wearies of fame’ The Times, 4 December 1994, p 1; ‘Were damages justified for injured allotment intruder?’ (letter) The Times, 13 December 1994, p 21; ‘Heroes who fell foul of the law’ The Times, 4 October 1995, p 11.
4. Canadian courts favour treating the illegality argument as a defence: see Hall v Hebert (1993) 101 DLR (4th) 129, discussed below. The current English Court of Appeal position is mixed: in Reeves v Commissioner of Police of the Metropolis (1998) 2 All ER 381, it was treated as a defence; but see the different views expressed in Pitts v Hunt (1991) 2 QB 24, discussed below.
5. The Australian courts favour this approach: see Gala v Preston (1990-91) 172 CLR 243, discussed below. For the implications of treating illegality as a duty issue, see B MacDougall ‘Ex Turpi Causa: Should a Defence Arise from a Base Cause?’ (1991) 55 Sask L Rev 1 at 3, and the judgment of McLachlin J in Hall v Hebert (1993) 101 DLR (4th) 129 at 168.
6. The term ‘illegality’ is slightly inaccurate. The defence can arise not only in cases of plaintiffs criminal conduct but also in cases of legal but morally objectionable conduct, the principal examples being suicide and attempted suicide: see Yim Tat-fai v A-G of Hong Kong (1986) HKLR 873; Kirkham v Chief Constable of Greater Manchester Police (1990) 2 QB 283; and Reeves v Commissioner of Police of the Metropolis (1998) 2 All ER 381.
7. ‘Out of a base cause there arises no action’.
8. See Holmes v Johnson (1775) 1 Cowp 341 at 343, per Lord Mansfield CJ for one of the earliest applications of the principle in contract.
9. In National Coal Board v England (1954) AC 403, where the defence was rejected, Lord Porter remarked that ‘the adage itself is generally applied to a question of contract and I am by no means prepared to concede where concession is not required that it applies also to the case of a tort’ (at 419).
10. Ashton v Turner (1981) QB 137 would appear to mark its entry into the English law of torts. See generally C De Battista ‘Ex Turpi Causa Returns to the English Law of Torts: Taking Advantage of a Wrong Way Out’ (1984) 13 Anglo Am Law Rev 15, for doubts about the correctness of the application of the illegality defence to Ashton v Turner.
11. For instance, almost no one would suggest that trivial offenders such as a jaywalking pedestrian, or an automobile passenger who fails to buckle up, should be deprived of a damages claim. Certainly, such plaintiffs routinely succeed in their personal injury actions.
12. Per Bingham LJ in Saunders v Edwards (1987) 2 ALL ER 651.
13. Above n 9.
14. The court unanimously held that the defence did not apply to mere breach of statutory duty concerned with a safe working method, particularly in view of the express inclusion of breach of statutory duty in the definition of ‘fault’ in the Law Reform (Contributory Negligence) Act 1945. Lord Porter doubted whether the defence would ever apply to tort ((1954) AC 403 at 419).
15. [19541 AC 403 at 429.
16. (1981) QB 137.
17. (1981) QB 137 at 146.
18. Euro-Diam Ltd v Bathursr (1990) 1 QB 1 at 35, per Kerr LJ.
19. Eg Pitts v Hunt (1991) 2 QB 24; Gala v Preston (1990) 172 CLR 243; and Hall v Heberr (1993) 101 DLR (4th) 129; all discussed below.
20. Eg Revill v Newbery (1996) 1 ALL ER 291. See also Kirkham v Chief Constable of Greater Manchester Police [19 90] 2 QB 283; Yim Tat-fai v A-G of Hong Kong (1986) HKLR 873; and Reeves v Commissioner of Police of the Metropolis (1998) 2 ALL ER 381.
21. (1991) 2 QB 24.
22. (1991) 2 QB 24 at 46.
23. (1991) 2 QB 24 at 56.
24. See eg Kirkham v Chief Constable of Greater Manchester Police (1990) 2 QB 283; Yim Tat-fai v A-G of Hong Kong (1986) HKLR 873; and Reeves v Commissioner of Police of the Metropolis (1998) 2 ALL ER 381.
25. (1991) 2 QB 24 at 56.
26. See Progress and Properties Ltd v Craft (1976) 135 CLR 65 1, and Henwood v Municipal Tramways Trust (SA) (1981) QB 137 for examples of the last. See also National Coal Board v England (1954) AC 403.
27. In Revill v Newbery (1996) 1 ALL ER 291 the plaintiff was shot and wounded by the defendant while attempting a burglary on the defendant's premises. This would seem to be a case of injury arising directly ex turpi causa if ever there was one. None the less, the trial judge rejected the application of ex turpi causa, on the footing that the injury was not ‘so closely interwoven in the illegal or criminal act as to be virtually a part of it…’ (at 293). Even the result in Ashton v Turner (1981) QB 137, superficially appealing on the facts, does not lead to a workable general principle. For instance, what of the burglar fleeing the scene of the crime who, in the escape, is injured through the negligent driving of a third party? Since the connection between the tortious act and the crime is not as close, the plaintiff is likely to succeed in his action, but there seems to be little to distinguish the merits of his claim from those of the plaintiff in Ashton v Turner.
28. (1978) 138 CLR 438.
29. (1978) 138 CLR 438 at 455-456, per Mason J.
30. (1991) 2 QB 24 at 50-51.
31. (1971) 2 QB 691.
32. The adoption by Balcombe LJ of the Jackson v Harrison approach into English law is perhaps inherently flawed. The court in Jackson v Harrison presumed the acceptability in Australian law of a variable standard of care, a view later affirmed in Cook v Cook (1986) 162 CLR 376. This being so, a difficulty may arise as to how to vary the standard in the circumstances of joint criminal enterprise. Therefore, the court in Jackson v Harrison could come to the conclusion that it could not do so, reluctant as it was to engage in a consideration of the nature of the criminal activity. However, a variable standard of care is not permissible in English law. The standard is quite simply that of the reasonable person performing the particular activity: Nettleship v Weston (1971) 2 QB 691.
33. (1971) 2 QB 691.
34. That this is so was acknowledged by Murphy J in Jackson v Harrison itself, with specific reference to the safe-cracker hypothetical: (1978) 138 CLR 438 at 463–464.
35. See Arthur Guinness, Son & Co (Dublin) Ltd v The Freshfield (Owners): The Lady Gwendolen (1965) P 294. Nettleship v Weston (1971) 2 QB 691 can be cited for the same proposition.
36. Discussed below.
37. (1990-91) 172 CLR 243.
38. (1990-91) 172 CLR 243 at 279.
39. A principle established as long ago as Jones v Boyce (1816) 1 Stark 493.
40. (1990-91) 172 CLR 243 at 247.
41. See further criticisms of this approach in the judgment of Brennan J in Gala v Preston (1990-91) 172 CLR 243 at 268–270.
42. (1990-91) 172 CLR 243 at 254.
43. See Brennan and Dawson JJ's criticisms of this approach in Gala v Preston (1990-91) 172 CLR 243 at 259-263 and 276-277. See also McLachlin J in Hall v Hebert (1993) 101 DLR (4th) 129 at 160): ‘We would be trading one label for another without coming to grips with the fundamental problem.’
44. Mason CJ could only say that it would be grotesque for a court to find a duty of care owed by one safe-cracker to another, whereas it would be unjust and wrong to deny the existence of a duty of care owed by a driver to a passenger who has agreed to drive in a prohibited driving lane. But it is not clear, and he does not say, why this is so (1990-91) 172 CLR 243 at 253.
45. Moreover, the point should not be missed that formulating the issue in terms of duty of care has implications for the burden of proof. The effect is to shift the burden of proof on illegality to the plaintiff, rather than leaving it as a defence for the defendant, where it belongs.
46. (1990-91) 172 CLR 243 at 273.
47. (1990-91) 172 CLR 243 at 243.
48. (1970) 119 CLR 397.
49. The list includes the gravity of the offence, the threat to public order, the penalties prescribed etc: (1990-91) 172 CLR 243 at 272.
50. (1986) 162 CLR 376.
51. See Nettleship v Weston (1971) 2 QB 691.
52. (1993) 101 DLR (4th) 129.
53. (1990-91) 172 CLR 243.
54. (1991) 2 QB 24.
55. Only Sopinka J dissented, not for reasons of plaintiff's illegality (he agreed that ex turpi causa had no application), but because, as a matter of precedent and principle, an owner of a car does not owe a duty to prevent a willing driver from driving. To ‘extend a duty would not amount to the incremental extension of liability but rather a quantum leap’: (1993) 101 DLR (4th) 129 at 134.
56. (1993) 101 DLR (4th) 129 at 168.
57. McLachlin J cited as examples a claim for loss of future earnings based on an illegal occupation, and a claim for exemplary damages: (1993) 101 DLR (4th) 129 at 164.
58. As where a criminal, caught due to his partner's negligence and required to pay a fine, seeks to recover the amount of the fine from his partner in a negligence action: (1993) 101 DLR (4th) 129 at 166.
59. (1990-91) 172 CLR 243.
60. Of the other members of the court, Gonthier J agreed with McLachlin and Cory JJ. Cory J took an approach similar to that of the majority in Gala v Preston, treating the issue as one of duty of care, specifically, whether or not, in circumstances of illegality, policy considerations required a finding of no duty. On the facts he found that policy considerations did not so require: (1993) 101 DLR (4th) 129 at 158. His approach was roundly criticised by McLachlin J in the same case as being unhelpful, failing as it does to indicate any clear or workable criteria for the application of the principle (at 168–171).
61. See R W Kostal ‘Currents in the Counter-Reformation: Illegality and Duty of Care in Canada and Australia’ (1995) 3 Tort LR 100.
62. See Jaensch v Coffey (1984) 155 CLR 549 and Sutherland Shire Council v Heyman (1985) 157 CLR 424.
63. See Kerr LJ in Euro Diam Ltd v Bathurst (1990) 1 QB 1 at 35; generally, see Chitty on Contracts (London: Sweet & Maxwell, 27th edn, 1994) vol 1, 16-001-16-173.
64. Thackwell v Barclays Bank plc (1986) 1 ALL ER 676 is an example.
65. (1993) 101 DLR (4th) 129 at 166. Askey v Golden Wine Co Ltd (1948) 2 ALL ER 35 is an example. Equally, if the plaintiff had been incarcerated and then wished to claim damages in negligence from his partner, by analogy to McLachlin J's point, he would be undermining the integrity of the legal system.
66. (1993) 101 DLR (4th) 129 at 164. However, this situation will not arise in those jurisdictions which follow Rookes v Barnard (1964) AC 1129, since, after that decision, a punitive damages award is simply not possible in a negligence action: see AB v South West Water Services Ltd (1993) 1 ALL ER 609.
67. See Burns v Edman (1970) 2 QB 541.
68. Examples include Kirkham v Chief Constable of Greater Manchester (1990) 2 QB 283; Yim Tat-fai v A-G of Hong Kong (1986) HKLR 873; Reeves v Commissioner of Police of the Metropolis (1998) 2 ALL ER 381; and Revill v Newbey (1996) 1 ALL ER 291, where in the result the issue was skirted by the Court of Appeal.
69. Examples include Pitts v Hunt (1991) 2 QB 24; Hall v Hebert (1993) 101 DLR (4th) 129; and Gala v Preston (1990-91) 172 CLR 243.
70. Defined by Honoré as requiring ‘those who have without justification harmed others by their conduct to put the matter right’ . See A M Honoré‘The Morality of Tort Law’ in D G Owen (ed) Philosophical Foundations of Tort Law (Oxford: Oxford University Press, 1995) pp 78–79.
71. See R W Wright ‘Right, Justice and Tort Law’ in Owen (ed) Philosophical Foundations of Tort Law (above n 70) pp 180–181.
72. (1996) 1 ALL ER 291.
73. A similar result (plaintiff 40% contributorily negligent) was achieved on similar facts by the Australian High Court in Hackshaw v Shaw (1985) 3 ALR 417. Ex turpi causa did not figure in the reasons.
74. In England see Law Reform (Contributory Negligence) Act 1945 (UK), s 1; in Australia see eg Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 1; and Wrongs Act 1936 (SA), ss 27a, 27b; in Canada see eg Negligence Act, RSO 1990, c N.1, s 3; in Hong Kong see Law Amendment Reform (Consolidation) Ordinance (Cap 23), s 21.
75. In England see Civil Liability (Contribution) Act 1978, ss 1, 2; in Australia see eg Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c), (2); and Wrongs Act 1936 (SA), ss 25(1)(c), (CA), (d), 26; in Hong Kong see Civil Liability (Contribution) Ordinance (Cap 377), ss 3(1), 4(1).
76. (1993) 1 ALL ER 521.
77. (1993) 1 ALL ER 521 at 529.
78. In England see Road Traffic Act 1988, s 149(3); in Australia see eg Motor Vehicle Act 1988 (NSW), s 76; and Wrongs Act (SA), s 35a(4); in Hong Kong see Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap 272), s 12.
79. See Pitts v Hunt (1991) 2 QB 24 at 48, 51, 52 per Beldam LJ, Balcombe LJ and Dillon LJ.
80. See C G S Tan ‘Volenti Non Fit Injuria: an Alternative Framework’ (1995) 3 Tort LR 208 for an alternative to the traditional explanation of the defence of volenti.
81. See above n 78 and Pitts v Hunt (1991) 2 QB 24, interpreting the English provision.
82. See Reeves v Commissioner of Police of the Metropolis (1998) 2 ALL ER 381 for theoretical and logical objections to the application of the defence to a negligence action arising out of a suicide.
83. It has been held that since apportionment legislation normally defines ‘fault’ to include ‘breach of statutory duty’, the defence is never available in the context of breach of statutory duty: see Lord Porter in National Coal Board v England (1954) AC 403 at 419. For the argument that ‘fault’ in apportionment legislation includes illegal conduct generally, see D Gibson ‘Illegality of Plaintiff's Conduct as a Defence’ (1969) 47 Can Bar Rev 89 at 94–95; and DeBattista (above n 10) at 21.
84. Honoré (above n 70) at 92.
85. (1996) 1 ALL ER 291.
86. (1993) 101 DLR (4th) 129.
87. (1971) 2 QB 691.
88. Glasgow Corporation v Muir (1943) AC 448. See generally R Kidner ‘The Variable Standard of Care’ (1991) II LS 1.
89. (1996) 1 ALL ER 291.
90. (1990-91) 172 CLR 243.
91. (1993) 101 DLR (4th) 129, per Cory J.