Joyce & Anor v O'Brien & Anor

A claimant who suffers injury while participating in a joint criminal enterprise may be barred from recovery where the criminal conduct is directly causative of the injury, rather than merely providing the occasion for the defendant’s tort. The same conclusion may be expressed through ex turpi causa, absence of duty, absence of breach, or causation. The labels are less important than the substance of the inquiry. Where the enterprise itself involves inherent danger and the claimant’s conduct is an essential part of the activity causing the injury, the claim fails. No separate proportionality exercise is required between the seriousness of the claimant’s criminality and the injury suffered.

The claimant was seriously injured after falling from the rear of a van driven by his uncle. The claimant was clinging to projecting ladders while the van was driven too quickly around suburban roads. The insurer alleged that the claimant and driver had jointly stolen the ladders and were making a getaway.

The court found that both men had participated in the theft and that the claimant’s position on the van, together with the driving, formed part of the criminal enterprise. The central issues were whether the claimant could recover in negligence despite that participation, whether the driver owed him a duty of care, and whether ex turpi causa non oritur actio barred the claim.

1. Claim dismissed. The claimant and the first defendant had jointly stolen the ladders and were making a speedy getaway. The claimant’s conduct in clinging to the ladders and the rear of the van was an essential part of the enterprise.
2. The causation approach in Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218, as discussed in Gray v Thames Trains [2009] 1 AC 1339 and applied in Delaney v Pickett [2011] EWCA Civ 1532, required consideration whether the claimant’s criminal act caused the damage or merely provided the occasion for the defendant’s tort. Here the claimant’s criminal conduct was directly causative. His injuries resulted from the combination of the dangerous driving and his inherently dangerous position, both forming part of the criminal activity.
3. The claim also failed on the duty-of-care formulation. In a joint criminal enterprise of this kind, involving a dangerous getaway and an inherent need for speed, the driver could not owe a legally recognisable duty of care to the co-conspirator. It was not possible to formulate an appropriate standard of care for the conduct forming part of the enterprise.
4. No proportionality assessment was required. The court rejected the submission that the seriousness of the injury should be weighed against the seriousness of the criminal conduct.
5. Since the claim failed entirely, contributory negligence did not arise. Had it arisen, the claimant and first defendant would have been equally to blame and damages would have been reduced by 50 per cent under section 1 of the 1945 Act. Costs were to follow the event.

First-instance judgment. No prior appellate decision is stated in the judgment.