Pitts v Hunt

A participant in a joint illegal enterprise cannot recover in negligence from a co-participant where the character and incidents of the enterprise make it impossible for the court to determine the appropriate standard of care. Illegality does not automatically bar a claim; it must bear materially upon the duty or standard of care.

Road Traffic Act 1972, section 148(3), prevents a driver from relying on volenti non fit injuria against a passenger. It does not prevent a defence founded on participation in a joint illegal enterprise. Where damage results partly from each party’s fault, the Law Reform (Contributory Negligence) Act 1945 requires a genuine apportionment and does not permit a finding of 100% contributory negligence.

The claimant was seriously injured while riding pillion on a motorcycle driven by his friend. Both had been drinking heavily. The driver was under age, unlicensed and uninsured, and the claimant knew those facts. The judge found that both men deliberately participated in reckless riding intended to frighten other road users.

His Honour Judge Fallon QC, sitting as a High Court judge, dismissed the negligence claim. He relied on illegality, the absence of a duty of care, voluntary acceptance of risk and, alternatively, 100% contributory negligence. The claimant appealed against the dismissal of his claim against the driver’s personal representatives.

The principal issues were whether the joint illegal enterprise barred the negligence claim, whether section 148(3) of the Road Traffic Act 1972 excluded volenti, and whether the claimant could be held wholly contributorily negligent.

1. Appeal dismissed unanimously. Balcombe and Dillon LJJ held that the claimant’s participation in the joint illegal enterprise prevented recovery. The reckless riding was itself an inherent part of the enterprise. Its character made it impossible for the court to determine an appropriate standard of care between the participants.

2. Per Balcombe LJ, adopting the approach in Jackson v Harrison, the decisive consideration was not illegality in the abstract. The court had to ask whether the character and incidents of the enterprise, and its inherent hazards, prevented the identification of a standard of care. Unlicensed driving does not necessarily have that effect, but an agreed course of reckless driving may do so.

3. Per Dillon LJ, unlawful conduct does not automatically defeat a negligence action. A claim may proceed where the illegality is incidental to an independently established wrong. This case instead fell within the category in which the claim arose directly from the illegal enterprise. The reckless use of the motorcycle was the parties’ joint enterprise of the moment.

4. Beldam LJ reached the same result through public policy. The claimant had actively encouraged conduct amounting to very serious road traffic offences and potentially to manslaughter by a dangerous act. Public policy precluded a participant from obtaining compensation for injuries sustained during those offences. Beldam LJ expressed reservations about denying a duty of care between drivers and passengers as a matter of general policy.

5. All three Lord Justices held that section 148(3) of the Road Traffic Act 1972 excluded any defence of volenti non fit injuria. A passenger’s willing acceptance of the risk of a driver’s negligence cannot negative the liability which compulsory insurance must cover. The provision did not, however, abolish the distinct defence based on participation in a joint illegal enterprise.

6. The court rejected the judge’s alternative finding of 100% contributory negligence. Section 1 of the Law Reform (Contributory Negligence) Act 1945 presupposes fault causing damage on both sides and requires a just and equitable reduction. A finding of 100% would defeat rather than reduce the claim. Beldam LJ would, if recovery had otherwise been available, have reduced damages by 50%; Dillon LJ considered that no more than 50% could properly be attributed to the pillion passenger. Balcombe LJ expressed no view on the precise apportionment.

1. Court of Appeal: The claimant’s appeal was dismissed unanimously. The court upheld the dismissal of the claim on the ground of the joint illegal enterprise, while rejecting the alternative conclusions on volenti and 100% contributory negligence. Leave to appeal to the House of Lords was granted.

2. High Court, Queen’s Bench Division: His Honour Judge Fallon QC dismissed the claim against both defendants after trying liability as a preliminary issue. The appeal concerned only the dismissal of the claim against the deceased rider’s personal representatives.