Smith v Stratton & Anor

Where a claimant seeks compensation from the Motor Insurers Bureau for an unsatisfied judgment, the defendant relying on ex turpi causa or an agreement exception bears the burden of proof. The civil standard remains proof on the balance of probabilities, without any heightened requirement because the allegation or financial consequences are serious. A criminal enterprise may cause injury for the purposes of ex turpi causa where the enterprise creates an unusual or increased risk of harm and that risk materialises, even though the immediate physical act is negligent driving. The Motor Insurance Bureau agreement must be construed restrictively, but its exception for a passenger who knew, or ought to have known, that a vehicle was being used in the course or furtherance of crime or to avoid lawful apprehension may apply on the facts.

The claimant, a seriously injured rear-seat passenger, brought a liability claim arising from negligent driving by the first defendant. The first defendant did not participate, and the second defendant, the Motor Insurers Bureau, accepted both the negligence and causation but relied on ex turpi causa and clause 6 of the Motor Insurance Bureau (Compensation of Victims of Uninsured Drivers) Agreement 1999.

The Bureau alleged that the claimant and the other occupants were engaged in drug dealing and that the vehicle was used to evade police apprehension. The central issues were whether those facts were proved on the balance of probabilities, whether the criminal activity caused the injury in the relevant legal sense, and whether the clause 6 exceptions defeated the Bureau’s liability.

1. Burden and standard of proof. The Bureau bore the burden of establishing both the ex turpi causa defence and, if necessary, the facts engaging clause 6 of the 1999 Agreement. The applicable standard was the ordinary civil standard. No additional gloss requiring more cogent evidence applied merely because the allegation involved serious criminal conduct or serious financial consequences. The judge relied on Re B (Children) (Sexual Abuse: Standard of Proof) [2008] UKHL 35.
2. Findings of fact. The evidence was assessed cumulatively. The claimant’s presence in the vehicle by arrangement, the cannabis found in and near it, the cash carried by two occupants, the occupants’ criminal histories, the planned journey, the rapid attempt to escape the police and the hearsay account of the first defendant together established, on the balance of probabilities, that the vehicle was being used for drug dealing and that the claimant was a willing participant. The judge was entitled to draw an adverse inference from the claimant’s failure to give evidence, although the appropriateness of doing so depended on the circumstances. The relevant principles were considered under Wisniewski v Central Manchester Health Authority [1998] PIQR P324.
3. Ex turpi causa. The defence succeeded. Applying the approach in Joyce v O’Brien and Another [2014] 1 WLR 70, the car was integral to the drug-dealing enterprise because it facilitated transactions and provided a means of rapid escape. It was foreseeable that police interest would lead to dangerous driving and that the resulting risk of injury would materialise. The injury was therefore caused by the criminal enterprise, rather than being merely incidental to it. The circumstances were materially closer to Joyce v O’Brien and Another than to Delaney v Pickett and Tradewise [2012] 1 WLR 2149, where the criminal activity merely provided the occasion for negligent driving.
4. Clause 6 of the 1999 Agreement. Alternatively, the clause 6(1)(iii) exception applied because the claimant knew, or ought to have known, that the vehicle was being used in the course or furtherance of crime. Clause 6(1)(iv) also applied: the vehicle was being used to avoid lawful apprehension, and it was not reasonable in the circumstances to expect the claimant to alight. The claim was dismissed against both defendants.

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