Joyce v O'Brien & Anor

Where participants pursue a joint criminal enterprise which foreseeably exposes them to unusual or increased risks of harm, and such a risk materialises, the resulting injury may be treated as caused by the claimant’s own criminal conduct. This may be so although a co-participant’s negligent or intentional act is the immediate cause.

The inquiry is one of causation, informed by the character of the enterprise and its inherent hazards. There is no general rule that participants in a crime owe each other no duty of care. Active encouragement of the co-participant’s dangerous conduct is unnecessary. The illegality doctrine retains flexibility and ordinarily does not apply to trivial offending, but a sufficiently serious and culpable offence may engage it.

The claimant and his uncle jointly stole ladders and attempted a speedy escape in a van. Because the ladders projected through an open rear door, the claimant stood on the rear footplate holding both the ladders and the van. He suffered serious head injuries after falling when his uncle drove rapidly around successive bends.

Cooke J dismissed the negligence claim against the driver and his insurer. He held that the claimant’s injuries were caused by his own participation in the criminal enterprise and that no applicable standard of care could be set between the participants during the getaway.

The claimant appealed. He argued that the driver’s recklessness fell outside the joint enterprise and broke the chain of causation. He also contended that the doctrine of ex turpi causa should be applied proportionately because the underlying offence was insufficiently serious.

1. The appeal was dismissed unanimously. The appropriate analysis was whether the injury was caused by the claimant’s criminal conduct, rather than whether the criminal relationship necessarily extinguished a duty of care. The judge’s initial formulation of a general no-duty rule was too broad, but this did not undermine his decision.

2. In a joint criminal enterprise, an injury is properly treated as caused by the claimant’s criminal conduct where the enterprise foreseeably subjects participants to unusual or increased risks of harm and such a risk materialises. The direct cause may nevertheless be a negligent or intentional act of another participant. The character of the enterprise and the hazards inherent in its execution inform the causal inquiry.

3. The claimant’s conduct was a cause of his injury, rather than merely the occasion for it. He adopted an inherently dangerous position to retain the stolen ladders during a hurried escape. He also accepted the heightened risk that the driver would drive dangerously, and that precise risk materialised. Driving too fast for the road arose naturally from the agreed speedy getaway and did not constitute an intervening act outside the enterprise.

4. Active encouragement of dangerous driving was unnecessary. It is sufficient that the claimant and driver participate in the criminal enterprise and that the accident arises from conduct which could foreseeably occur during its execution. Active encouragement may establish participation where other evidence is absent, but the joint enterprise and implicit encouragement of bad driving were clear here.

5. The ex turpi causa doctrine is a rule of public policy and therefore retains some flexibility. It will not ordinarily apply to minor traffic offences. In joint-enterprise cases, the nature of the principal offence will usually affect the range of a co-participant’s acts for which the claimant’s criminality is causative.

6. The theft in this case plainly crossed any relevant threshold. It was an offence carrying a maximum sentence of seven years and required real moral culpability. The claimant was accordingly precluded from recovering damages for the consequences of the criminal enterprise.

1. Court of Appeal (Civil Division): The court dismissed the claimant’s appeal unanimously and upheld the dismissal of the negligence claim: [2013] EWCA Civ 546.
2. High Court of Justice, Queen’s Bench Division: Cooke J held after trial that the claim was barred by ex turpi causa. No neutral or report citation is stated in the judgment.