Joyce v O'Brien & Anor

This appeal concerns the ambit of the common law doctrine of ex turpi causa non oritur actio in its application to a case of a joint criminal enterprise.

The appellant was very seriously injured when he fell from the back of a van which was being driven by his uncle, the first respondent. (I shall refer to them as the claimant and first defendant, as they were below). The first defendant subsequently pleaded guilty to the offence of dangerous driving, admitting that it was a serious mis-judgment to drive with his nephew travelling in the manner he was. The first defendant’s insurance company, the second respondent to this appeal, contends that although the first defendant was driving without proper care, he is not liable in tort to the claimant because both men were at the time involved in a common criminal enterprise. They had stolen some ladders and were seeking to make a speedy escape from the scene of the crime. The submission is that in these circumstances public policy reflected in the ex turpi principle provided him with a complete defence. These submissions were sustained by Mr Justice Cooke following a two day trial, and the claimant now appeals against his decision.

Before analysing the facts, I will consider the authorities establishing the relevant principles of law when a claimant seeks to recover damages for injuries sustained in the course of criminal behaviour.

In Gray v Thames Trains Ltd [2009] UKHL 33; [2009] 1 AC 1319 Lord Hoffmann, with whose speech Lords Phillips, Scott and Rodger agreed, described the ex turpi concept in the following terms (para 30):

“The maxim ex turpi causa expresses not so much a principle as a policy. Furthermore that policy is not based upon a single justification but on a group of reasons, which vary in different situations.”

The concept applies generally when a claimant is injured whilst committing a criminal offence. We are concerned in this case with its application in one particular context, namely where one criminal is injured by the negligence of another when they are both engaged in a criminal enterprise. The authorities demonstrate that whilst it is widely recognised that the ex turpi principle will often apply to deny the claimant the right to damages in such cases, the jurisprudential basis for reaching that conclusion is a matter of some dispute. I will first consider the principles which have been developed in the context of injuries incurred in the course of joint criminal enterprises, then focus on the distinct principles which apply where the criminal is injured by a third party unconnected to the criminal activity, and then suggest how the two strands of authority may be integrated.

Almost two centuries ago Lord Lyndhurst CB said in the case of Colburn v Patmore (1834) 1 Crop. M & R 73, 83:

“I know of no case in which a person who has committed an act, declared by the law to be criminal, has been permitted to recover compensation against a person who has acted jointly with him in the commission of the crime. It is not necessary to give opinion on the point; but I entertain little doubt that a person who is declared by the law to be guilty of a crime cannot be allowed to recover damages against another who has participated in its commission.”

Lord Asquith observed in National Coal Board v England [1954] AC 403, 428-429 that cases where the ex turpi principle had defeated a claim for damages were rare. He did not think that a plaintiff would be precluded from suing simply by virtue of the fact that a wrongful act is committed after the illegal agreement; the relevant wrongful act “must, I should have supposed, at least be a step in the execution of the common illegal purpose.” He gave the example of someone injured in an illegal prize fight.

Both these observations were cited by Windeyer J giving judgment in the High Court of Australia in Smith v Jenkins (1970) 119 CLR 397. A passenger was injured by the driver of a stolen car which he and the driver had stolen as part of a joint enterprise. The High Court was unanimous in concluding that the plaintiff could not recover. Windeyer J, giving a judgment which was approved by a majority of the other judges in the Court, formulated the relevant principle as follows:

“If two or more persons participate in the commission of a crime, each takes the risk of the negligence of the other or others in the actual performance of the criminal act. That formulation can be regarded as founded on the negation of duty, or on some extension of the rule volenti non fit injuria, or simply on the refusal of the courts to aid wrongdoers. How it be analysed and explained matters not.”

In fact the majority preferred to base the principle upon the notion that there was no duty of care as between the parties. Kitto J succinctly summarised why this was the case:

“.. in such a case the law regards the joint illegal conduct as the commission of a single wrong of which, as a whole, each participant is guilty.”

Both Smith v Jenkins and Lord Asquith’s observations were relied on by Ewbank J in Ashton v Turner [1981] QB 137, a case whose facts are analogous to the present one. Two men committed a burglary and then sought to escape from the scene driving a car belonging to a third. They had been drinking heavily. The driver was driving very dangerously in order to avoid their arrest after two taxi drivers had tried to block the car. The passenger was very badly hurt and sought damages in negligence against the driver, who as in this case had pleaded guilty to dangerous driving. After citing various authorities and quoting copiously from each of the judgments in Smith v Jenkins, the judge concluded that no damages could be recovered because the relevant principle, based on public policy, was that in the circumstances

“a duty of care did not exist between the first defendant and the plaintiff during the course of the burglary and during the course of the subsequent flight in the get-away car.” (p.146C)

(The judge also found that the claim failed on the volenti non fit injuria principle, but as later courts have recognised, that is not a sustainable defence in a road traffic accident because of the effect of section 148(3) of the Road Traffic Act 1972).

There were in fact two other decisions of the Australian High Court which were not drawn to the attention of Ewbank J. The first was Progress and Properties Ltd v Craft (1976) 135 C.L.R. 651. Craft was a workman on a building site who allowed himself to be carried to the top floor of a building under construction by a goods hoist. He fell and was injured when the operator’s foot slipped. The High Court held, again by a majority, that he could recover damages against the employers, who were liable for the negligent operator. Jacobs J, with whose judgment Stephen, Mason and Murphy JJ agreed, held that the workman could recover. He distinguished Smith v Jenkins in the following way:

“A plea of illegality in answer to a claim of negligence is a denial that in the circumstances a duty of care was owed to the injured person. A duty of care arises out of the relationship of particular persons one to another. An illegal activity adds a factor to the relationship which may either extinguish or modify the duty of care otherwise owed. A joint illegal activity may absolve the one party from the duty towards the other to perform the activity with care for the safety of that other. That, it seems to me, is the effect of Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397. Where there is a joint illegal activity the actual act of which the plaintiff in a civil action may be complaining as done without care may itself be a criminal act of a kind in respect of which a court is not prepared to hear evidence for the purpose of establishing the standard of care which was reasonable in the circumstances. A court will not hear evidence nor will it determine a standard of care owing by a safe blower to his accomplice in respect of the explosive device. This is an example which gives no difficulty, but other cases can give difficulty in classification. (at p.668)”

This involves a marked shift in the explanation as to why the duty of care may be negated in the case of joint illegal activity. The formulation is no longer premised on the basis that each participant is equally responsible for the acts of each other thereby necessarily negating a duty of care one to another. Rather the assumption is that sometimes the duty of care may remain intact even where the conduct causing the injury is in pursuance of the illegal joint enterprise. The nature of the illegal activity might be such as to extinguish that duty but not necessarily. It will do so only where the character of the activity is such that the claimant cannot expect the defendant to comply with the normal standard of the duty of care. The court will not then cast around to find some other standard to apply as between the joint wrongdoers. The judgment of Jacob J suggests not so much that the court could not undertake that task but that as a matter of policy it should not do so.

On the facts of this case the majority held that since the criminal conduct did not affect the standard of care which had to be exercised by the operator of the lift, the workman could recover. The same standard of care applied whether the operator was hoisting goods or a man. A different result would have been reached had the court applied the reasoning in Smith v Jenkins set out above, as Barwick CJ forcefully concluded in his dissenting judgment.

The second case was Jackson v Harrison (1978) 138 CLR 438 in which the facts were that a car passenger was injured by the negligent driver of the car who, to the passenger’s knowledge, was disqualified from driving. The majority of the High Court of Australia held that he could recover in line with the principle enunciated in the Progress and Properties case. The nature of the illegality did not affect the standard of care owed by the driver. Again Barwick CJ dissented on the grounds that this was an unwarranted departure from the ruling in Smith v Jenkins.

In the course of his judgment, Mason J said this (p.455-456):

“If a joint participant in an illegal enterprise is to be denied relief against a co-participant for injury sustained in that enterprise, the denial of relief should be related not to the illegal character of the activity but rather to the character and incidents of the enterprise and to the hazards which are necessarily inherent in its execution. A more secure foundation for denying relief, though more limited in its application - and for that reason fairer in its operation - is to say that the plaintiff must fail when the character of the enterprise in which the parties are engaged is such that it is impossible for the court to determine the standard of care which is appropriate to be observed. The detonation of an explosive device is a case of this kind. But the driving of a motor vehicle by an unlicensed and disqualified driver, so long as it does not entail an agreement to drive the car recklessly on the highway (see Bondarenko v. Sommers (1968) 69 S.R. (N.S.W.) 269 ), stands in a somewhat different position ... A plaintiff will fail when the joint illegal enterprise in which he and the defendant are engaged is such that the court cannot determine the particular standard of care to be observed. It matters not whether this in itself provides a complete answer to the plaintiff's claim or whether it leads in theory to the conclusion that the defendant owes no duty of care to the plaintiff because no standard of care can be determined in the particular case.”

Both these judgments were considered by the Court of Appeal in Pitts v Hunt [1991] 2 Q.B. 24. A teenage pillion passenger on a motor cycle failed in a negligence claim against the deceased rider, himself only sixteen, after he was injured when the motor cycle was in a collision with a car. Both claimant and defendant had been drinking and the claimant had been encouraging the rider to drive in a reckless and irresponsible manner, frightening other road users. The claimant appealed against the trial judge’s rejection of his claim but the appeal failed. Each member of the Court of Appeal in Pitts thought that the ex turpi doctrine applied although their reasons for so concluding varied. Balcombe LJ expressed himself in complete agreement with the judgment of Mason J in the Jackson case and cited the passage set out above: the true reason for denying liability was that the nature and character of the illegal enterprise meant that the court could not determine the standard of care.

Beldam LJ preferred to deny liability on the basis that public policy prevented recovery where the passenger had actively encouraged the rider to commit a dangerous road traffic offence. He was unhappy about saying that there was no duty of care as between the two parties.

Dillon LJ, like Balcombe LJ, followed the two more recent Australian cases and held that the nature of the illegal venture was such as to negate any ordinary standard of care. However, he somewhat confusingly observed that the case was indistinguishable from Smith v Jenkins and he cited the following observation of Barwick CJ in that case:

“The driving of the car by the appellant, the manner of which is the basis of the respondent's complaint, was in the circumstances as much a use of the car by the respondent as it was a use by the appellant. That use was their joint enterprise of the moment.”

Dillon LJ thought that this principle applied equally to the riding of the motor cycle in this case. However, this suggests the denial of a duty for reasons other than the difficulty of formulating a duty of care.

There have been two other joint liability cases which have been considered by the High Court of Australia since the Pitt decision. In Gala v Preston (1991) 172 CLR 243 the plaintiff was injured as a result of the dangerous driving of the defendant. They had both been drinking heavily and had stolen a car. The driver fell asleep at the wheel and the car crashed into a tree. The majority held that no duty of care existed between the driver and those complicit in the theft. The court applied the principles in Progress and Properties and Jackson and concluded that in the particular circumstances, there was no reasonable basis for expecting the driver to drive in accordance with the ordinary standards of competence and care. The joint judgment of Mason CJ, Deane, Gaudron and McHugh JJ held that:

“ .. each of the parties to the enterprise must be taken to have appreciated that the would be encountering serious risks in travelling in the stolen vehicle when it was being driven by persons who had been drinking heavily and when it could well be the subject of a report to the police leading possibly to their pursuit and/or their arrest.”

The court added that it would be neither appropriate nor feasible for the courts to seek to impose a more limited duty of care which might apply in these circumstances.

The most recent case is Miller v Miller [2011] HCA 9. The claimant was a sixteen year old girl who had stolen a car to get home after she had missed the last train and could not afford a taxi. She was with two other members of her family. Shortly after taking the car they saw her mother’s cousin, who was something of a father figure for her. He insisted on driving the car. By then others had joined the car and there were nine persons in all travelling in it. The cousin drove dangerously, the car lost control, one passenger was killed and the claimant was seriously injured and became a tetraplegic. The High Court held that in principle anyone complicit in stealing the car could not recover damages if and when it was driven dangerously causing them to be injured. The court was not persuaded that it is correct to say that no standard of care could be determined - “setting a norm of behaviour as between criminals would be difficult but it is not impossible” - but the question was whether the court should set such a standard. That would depend on the character of the enterprise and the hazards inherent in its execution. Where the illegality consisted of a breach of a statutory duty, it was relevant to consider the purpose behind the statute. One of the purposes behind the law forbidding taking and driving away motor cars was said to be not only the protection of property but also the advancement of road safety. The court expressed its conclusion as follows (para 93):

“If, in a particular case, it were to be shown that a probable consequence of commission of an offence of taking or using a vehicle illegally was the commission of other driving offences (including reckless or dangerous driving) those who were complicit in the initial offence would be criminally liable for the subsequent offences as well. More particularly, if, as here, the driver of the illegally used vehicle drove dangerously, and driving in that manner was a probable consequence of the prosecution of the joint illegal purpose, a person complicit in the crime of illegal use would also be complicit in the offence of driving dangerously. And if, as a result of the dangerous driving, the complicit passenger were injured, it would evidently be incongruous to decide that the offender who drove the vehicle owed that passenger a duty to drive with reasonable care. The passenger would have committed the offence of dangerous driving and yet, if the driver owed the passenger a duty to take reasonable care, the passenger (who would be criminally responsible for the driver's dangerous driving) might sue the driver for damages for driving negligently.”

In fact the claimant succeeded but only because she had twice asked the driver to let her out of the car, and the majority held that this amounted to her withdrawing from the illegal enterprise. Thereafter, she was not a party to the wrongful driving.

The principle developed in these joint enterprise cases can be seen as merely one specific application of a wider principle that a man cannot recover compensation where his cause of action is based on his own criminal or immoral act. However, the test for determining liability in those circumstances has focused on causation rather than on considerations of whether a duty of care can properly be said to exist.

It is not necessary to consider earlier authorities because the authoritative statement of the relevant principles for determining when the doctrine will apply is contained in the speech of Lord Hoffmann in Gray v Thames Trains Ltd. In that case the claimant had suffered post traumatic stress disorder (PTSD) after he was injured in a major railway accident caused by the defendant’s negligence. He later killed a man and was convicted of manslaughter by reason of diminished responsibility. He would not have committed the offence but for the PTSD. He sought damages from the railway company and the company responsible for the railway infrastructure for loss of earnings, loss of liberty, damage to reputation, and feelings of guilt and remorse. Although he had suffered the PTSD as a result of the accident, nonetheless his action failed. The actual basis for the decision of the House of Lords was that a civil court would not award damages to compensate a claimant for the injury or disadvantage which a criminal court had imposed on him by way of punishment for a criminal act. This was what Lord Hoffmann described as the narrow manifestation of the ex turpi causa principle.

Lord Hoffmann distinguished that aspect from what he termed the “wider version” of the ex turpi concept which enunciates the principle that “you cannot recover for damages which is the consequence of your own criminal act”. He observed that the wider version:

“… differs from the narrower version in at least two respects: first, it cannot, as it seems to me, be justified on the grounds of inconsistency in the same way as the narrower rule. Instead the wider rule has to be justified on the ground that it is offensive to public notions of the fair distribution of resources that a Claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct. Secondly, the wider rule may raise problems of causation, which cannot arise in connection with the narrower rule. The sentence of the court is plainly a consequence of the criminality for which the Claimant was responsible. But other forms of damage may give rise to questions about whether they can properly be said to have been caused by his criminal conduct (para 51).”

He then concluded that the ordinary test of causation should be adopted when determining whether the ex turpi principle should apply (para 54).

“This distinction, between causing something and merely providing the occasion for someone else to cause something, is one with which we are very familiar with in the law of torts.....It might be better to avoid metaphors like ‘inextricably linked’ or ‘integral part’ and to treat the question as simply one of causation. Can one say that, although the damage would not have happened but for the tortious conduct of the defendant, it was caused by the criminal act of the Claimant? (Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218). Or is the position that although the damage would not have happened without the criminal act of the Claimant, it was caused by the tortious act of the Defendant? (Revill v Newbery [1996] QB 567) ”

As I have emphasised, Lord Hoffmann was considering a case where the question was simply whether the claimant had brought the injury upon himself in circumstances where the alleged tortfeasor who caused the injury was not a party to the crime. He was not dealing with cases where a claimant is injured in the course of a joint criminal enterprise by another person who is a party to that enterprise, and he did not refer to any of the relevant authorities where that situation has arisen.

In view of that, an argument could no doubt have been advanced that in the joint enterprise context the older authorities, with the focus on duty rather than causation, better catch the particular feature which justifies the application of the ex turpi principle in these cases. However, in a case decided subsequently to the Gray case, Delaney v Pickett [2011] EWCA Civ 1532, the Court of Appeal applied the causation principle to a joint enterprise case also. The claimant was badly injured when a motor car driven by the first defendant was negligently driven. Subsequently packets of herbal cannabis were found on both the claimant and the first defendant. The judge held that the purpose of the car journey had been to transport illegal drugs and accepted a submission the ex turpi causa defence was applicable. The Court of Appeal upheld the appeal. Ward LJ said this (para 37):

“Therein lies the answer to the problem in this case. It is not a question of whether or not it is impossible to determine the appropriate standard of care. We are not concerned with the integrity of the legal system. We do not need to ask whether the claim would be an affront to the public conscience. There is no need for an analysis of the pleadings to establish whether or not the claimant is relying on his illegality to found his claim. It is not a question of the claimant profiting from his own wrongdoing. Here the crucial question is whether, on the one hand the criminal activity merely gave occasion for the tortious act of the defendant to be committed or whether, even though the accident would never have happened had they not made the journey which at some point involved their obtaining and/or transporting drugs with the intention to supply or on the other hand whether the immediate cause of the claimant's damage was the negligent driving.”

Applying the causation principle., Ward LJ was clear that:

”Viewed as a matter of causation, the damage suffered by the claimant was not caused by his or their criminal activity. It was caused by the tortious act of the defendant in the negligent way in which he drove his motor car. In those circumstances the illegal acts are incidental and the claimant is entitled to recover his loss.”

Richards and Tomlinson LJJ agreed with that analysis.

Accordingly, the same causation principle should apply whether the criminal is acting alone or as part of a joint enterprise. But this does not in my opinion mean that the established jurisprudence on joint enterprise cases is of no continuing relevance. The material additional feature in such a claim is that the claimant may be denied recovery not merely where the injury results directly from his own criminal conduct, but also where it results from the action of a joint participator carried on in furtherance of the joint enterprise. In certain cases the injury will still be treated as having been caused by the claimant even though the direct cause of the injury was his co-defendant.

In my judgment, in the application of the causation principle developed in Gray, the courts should recognise the wider public policy considerations which have led them to deny liability in joint enterprise cases. This is compatible with the Lord Hoffmann’s approach. The earlier authorities provide valuable assistance in answering the question when the claimant’s injury will be treated as having been caused by his own conduct notwithstanding that the immediate cause was the act of a partner in crime. They reflect what seems to me to be the underlying policy even if the rationale for denying liability must now be cast in terms of causation rather than duty. In my view the injury will be caused by, rather than occasioned by, the criminal activity of the claimant where the joint criminal illegality affects the standard of care which the claimant is reasonably entitled to expect from his partner in crime. This is consistent with the result in the Ashton and Pitt cases, but it focuses on causation rather than duty.

I would formulate the principle as follows: where the character of the joint criminal enterprise is such that it is foreseeable that a party or parties may be subject to unusual or increased risks of harm as a consequence of the activities of the parties in pursuance of their criminal objectives, and the risk materialises, the injury can properly be said to be caused by the criminal act of the claimant even if it results from the negligent or intentional act of another party to the illegal enterprise. I do not suggest that this necessarily exhausts situations where the ex turpi principle applies in joint enterprise cases, but I would expect it to cater for the overwhelming majority of cases. With that principle in mind, I now turn to the facts.

As I have said, the injuries to the claimant occurred when he fell from a van which was fleeing the scene of the crime. Neither the claimant nor the first defendant gave evidence at the trial. The latter had given a number of inconsistent accounts to various persons about what had occurred and as the judge observed, he was too unreliable for anyone to call him. The claimant said he had no recollection of the incident. However, there were other witnesses who were able to speak both about the nature of the accident and also the action taken by the first defendant, following the accident, to conceal the ladders which had been stolen.

The essential findings were as follows. On 21 April 2009 a set of extending ladders belonging to a Mr Armstrong were stolen from outside his front garden at 17 Coniston Road, Addiscombe, near Croydon. The ladders were put into a Ford transit van and the first defendant drove it at speed along certain side streets in Addiscombe.

The van was followed by an estate agent, Mr O’Hare, who described what happened. The claimant was standing at the back of the van, which had one of the doors open, and was hanging onto the van with considerable difficulty. The ladders were too long to fit inside the van and protruded through the open door. They were supported by the claimant, being either under or over his right arm, and he was hanging onto the door or roof with his left hand while the open door was flapping. The van went around a right hand bend towards the end of Coniston Road, going down hill, but without slowing down. It then suddenly turned sharp left at the next junction into Addiscombe Road.

The claimant’s position had been rendered unstable by the first right turn and he could not properly stabilise himself when the van then turned sharp left. He fell from the van and suffered a serious head injury. Mr O’Hare said that the driving was reckless and it was “an accident waiting to happen.”

The van then stopped 20 feet down further down the road from where the defendant fell. The first defendant told Mr O’Hare that he would park the vehicle and return. He went away for some five minutes or so. He was seen by another witness further down Addiscombe Road descending from the van “like a cheetah”. The first defendant pulled the ladders from the van and ran with them to an alley way where he left them. He then returned to the scene of the accident.

The judge drew two critical inferences from these facts. First, he was satisfied that the claimant and first defendant had been involved in a joint enterprise for the theft of the ladders. The appellant sought to challenge this conclusion on appeal but was not given leave to pursue the point. The inference was manifestly sustainable on the evidence. Second, the accident occurred in the course of the two men making a speedy getaway from the scene of the crime. The judge’s findings on this were as follows (para 28):

“There was only one good reason for the claimant’s own actions in standing on the back of the transit van, holding onto unsecured projecting ladders with only one hand free to hold onto the van, whilst the van travelled at greater speed than anyone thinks sensible around corners. There was only one good reason for the first defendant’s conduct in driving away from the scene and disposing of the ladders in the alleyway, following what was plainly a serious accident to his nephew. There had been the theft of the ladders from No 17, the two were seeking to make a speedy getaway with the ladders without taking time to secure them in the van (or to secure the door) in the manner in which objects protruding from a van are often, however, dangerously secured with rope. The first defendant then hastily disposed of the property following the accident.”

The judge then considered the relevant law in some detail citing passages from some of the judgments to which I have made reference. The judge accepted a submission from Mr Lynagh QC, counsel for the second respondent here and below, that the ex turpi policy as applied to the facts here manifested itself in two related principles:

For reasons I have given, in my view the first principle is in fact stated too broadly. It reflects the analysis of the Australian High Court in Smith v Jenkins which was broader than the reasoning adopted either in subsequent cases in the High Court or by the Court of Appeal in Pitt. Contrary to the Smith v Jenkins analysis, there will be cases where the duty of care is recognised as between participants to a crime. Delaney is a recent example. I have explained in paragraph 29 above how I think the lack of duty principle should now be re-cast to give effect to the causation principle. However, for reasons I explain below, I do not think that the fact that judge stated the relevant principle too widely undermines his actual decision.

The judge found that each of the two defences he identified had been made out. As to the second, applying the principles enunciated by Lord Hoffmann in Grey, the judge had no doubt that the injury was suffered as a consequence of the claimant’s own criminal act (para 37):

“On the causation test, the claim here must fail. The claimant and defendant were both participating in a criminal enterprise which involved the theft of the ladders and the unlawful removal of them in a van, where the only means of so transporting them in a speedy getaway meant that the claimant had to keep the ladders in the van, with the door open by standing on the rear footplate of the van and hanging on to the ladders and the rear of the van. Speed was of the essence of the getaway and the claimant’s actions were an essential part of the joint enterprise. His injuries were caused by a combination of the first defendant’s driving at speed and his position on the back, which made that driving dangerous. What he was doing was so unusual as to be as causative of his injuries as the driving, both of which were part of the criminal activity in which they were both engaged.”

I read this as saying that quite independently of the actions of the driver, the nephew’s own carelessness in taking the risk he did as part of his criminal offending deprived him of the right to recover compensation. His own conduct was a cause of, and not merely the occasion of, his injury.

In this context the judge rejected a suggestion from counsel that a principle of proportionality came into play so that where the degree of criminality was limited, it would be inappropriate to apply this causation principle.

The judge also held that the claimant was barred from recovering on the basis of the first principle set out above. He summarised his conclusions as follows (para 46):

“ In my judgment, it matters not which test or formulation of ex turpi causa is applied, as the result is the same – the claim must fail. As a matter of general public policy, a participant in a joint enterprise theft which involves a speedy getaway in a van, with one participant driving and the other clinging dangerously on to the stolen items and the rear of a semi open van, with a door swinging, cannot recover for injuries suffered in the course of that enterprise. The driver cannot owe a duty of care to his co-conspirator and it is not possible to set a standard of care as to how fast the van should be driven, in circumstances where speed is necessary to get away and there is a need for the other co-conspirator to hang on desperately to the stolen items and the back of the open van in order to effect their joint objective of a speedy escape. Risk and danger were inherent in the enterprise itself. Furthermore, for the reasons I have already given, the unlawful activity of the claimant in the theft and getaway was as directly causative as the driving of the first defendant. The claimant is thus precluded from recovery for the consequences of his own criminal conduct.”

He therefore in fact accepted the principle, which is narrower that his original Smith v Jenkins formulation, that no duty of care arises because no standard of care can be identified. He has also recognised that there were enhanced risks inherent in the enterprise and that the injury resulted from such a risk being realised. In my judgment and in accordance with the principle I have enunciated, that would mean that the injury is caused by the criminal conduct of the claimant.

The arguments advanced orally before the court departed in certain respects from those identified in the original grounds of appeal. In particular, it is no longer alleged that the judge was wrong to say that the speedy getaway was a necessary feature of the theft. In my judgment this point was wisely not pursued; the judge was plainly not saying that a speedy getaway in a vehicle of this kind is always a necessary element in a theft of this nature, merely that on this occasion the two men were bent on quickly leaving the scene so as to avoid detection for the theft. There was an abundance of evidence to support that conclusion, and it is not challenged. Moreover, the quick getaway with consequential speedy and dangerous driving is certainly a foreseeable consequence of stealing property.

Mr Melton QC, counsel for the claimant, does not dispute this; he accepts that the men wished to make a speedy getaway to avoid detection, and that a degree of careless driving was inevitably envisaged by the claimant. His submission is that the claimant never contemplated that the first defendant would drive in as reckless a manner as he did. This was something that was not anticipated and fell outwith the terms of any joint enterprise; it constituted an intervening act which broke the chain of causation between the claimant’s criminality and his injuries. The proximate cause of those injuries was the negligent driving alone; the claimant’s own criminality, to use Lord Hoffmann’s language in Gray, merely occasioned the injury but did not cause it.

Mr Melton submits that the judge never properly focused on this question at all. He wrongly assumed that because a speedy departure was part of the joint enterprise, every act of the driver which facilitated the getaway inevitably fell within the scope of the joint enterprise.

I disagree with that submission. The judge’s conclusion in paragraph 37 is that each party played a part in the joint enterprise; the claimant had to secure the ladders in some way which was necessarily unsafe because there was no time properly to secure them, and the first defendant had to drive speedily. In my view there is no proper basis for inferring that whilst the claimant may have accepted that there may be some element of dangerous driving and enhanced risk, the reckless driving which occurred here somehow fell outside the scope of the joint enterprise. I would of course accept that in principle injuries could be sustained which did not result from the joint enterprise, such as if the uncle had deliberately driven with the intention of harming the nephew, or if he had physically attacked him as they were escaping from the scene. The injury sustained in that way would be occasioned by rather than caused by the claimant’s criminal conduct. But there is no sensible basis for asserting that the very act which naturally arises in a quick getaway, namely driving too fast for the nature of the road, takes the case outside the scope of the joint enterprise. Indeed, the accident which occurred was precisely the kind of accident which might have been foreseen as the result of the particular getaway arrangements even if the uncle had not been driving so dangerously.

In my view, therefore, applying the principles enunciated by Lord Hoffmann in Gray, and having regard to the joint nature of the criminal enterprise, the judge was plainly entitled to conclude that although the damage may not have occurred but for the negligent driving of the first defendant, it was caused by the criminal activity in which the claimant was engaged. The injury resulted both from his personal conduct in placing himself in such a dangerous position; and because he took the heightened risk of dangerous driving by his uncle and that risk materialised.

Mr Melton rightly points out that in some of the cases where the courts have denied that an injured party can recover for the negligent driving of a party to a joint criminal enterprise, the claimant has actively encouraged the dangerous driving, which did not happen here. Pitts v Hunt fell into that category. But that active encouragement is not in all cases necessary in order to attract the operation of the doctrine. It is enough that the claimant and negligent driver are involved in the criminal enterprise together and that the accident arises out activities which it can be foreseen might be committed in the course of the enterprise. Active encouragement may constitute the evidence of joint enterprise which would otherwise be lacking. But in this case the evidence of joint enterprise and of the implicit encouragement to bad driving was plain even in the absence of active encouragement.

I turn to the second ground of appeal. Mr Melton submits that the judge was wrong to hold that there was no room for the principle of proportionality in the operation of the ex turpi principle. He submits that a proper analysis of Lord Hoffmann’s judgment suggests the contrary; his Lordship stated in terms that the rule had to be justified on the basis that it is offensive to public notions of the fair distribution of resources that a claimant should be compensated for the consequences of his own conduct. It would not be offensive to the public to permit recovery where the criminal offence was of a relatively trivial nature.

He also referred to a passage in the judgment of Sir Murray Stuart-Smith in Vellino v Chief Constable of Greater Manchester Police [2001] EWCA Civ 1249; [2002] 1 WLR 218 where the judge said that the doctrine is one of public policy and that the offence must be of some gravity before the doctrine is engaged. Sir Murray Stuart-Smith added that “Generally speaking a crime punishable with imprisonment could be expected to qualify.”

Given that the doctrine is one of public policy, I would accept that there should indeed be some flexibility in its operation. The doctrine will not apply, for example, to minor traffic offences. I suspect that in most joint criminal liability cases at least, the nature and characteristics of the principal offence will in practice determine which acts of a co-conspirator will attract the application of the ex turpi doctrine, and for relatively trivial offences the range of such acts is likely to be very limited. Nonetheless, I recognise that there may be a problem in determining in certain cases whether the offence attracts the application of the doctrine or not.

However, in my view, wherever the precise line is to be drawn, the theft of these ladders would fall clearly on the side where the doctrine applies. It is not merely an imprisonable offence but carries a seven year maximum sentence; it is not a strict liability offence which may be committed without any real moral culpability. I therefore reject this ground also.

For these reasons I would dismiss the appeal.

I agree.

I also agree.