McCracken v Smith & Ors

The ex turpi causa defence is a rule of law grounded in public policy, not a discretionary proportionality exercise. A passenger who joins an implied criminal enterprise to drive dangerously may be jointly responsible for the driving. Where the increased risk materialises, the injury is treated as caused by the passenger’s criminal conduct, barring recovery against a fellow participant. That does not necessarily bar recovery against an independent negligent third party where the criminal driving and third-party negligence are concurrent causes. Both causes may be reflected through contributory negligence. Appellate interference with an apportionment is justified where the lower court materially mischaracterises the claimant’s role.

Daniel McCracken was injured while travelling as a pillion passenger on a trials bike ridden dangerously by Damian Smith. The bike collided with a minibus driven by Darren Bell. The High Court held that Smith and Bell were negligent, rejected the ex turpi causa defence against Bell, reduced damages by 45 per cent for contributory negligence, and ordered Bell to pay 90 per cent of the Motor Insurers’ Bureau’s recoverable costs. The court also rejected the defence against Smith and the MIB, although those claims were not the subject of this appeal.

Bell appealed on illegality, negligence, contributory negligence and costs. The central issues were whether McCracken participated in a joint criminal enterprise to drive dangerously, whether that participation barred recovery against Bell, and whether the apportionment and costs order were within the trial judge’s discretion.

Richards LJ gave the leading judgment. Underhill LJ and Christopher Clarke LJ agreed.

1. Disposition. The appeal was allowed only to increase the deduction for contributory negligence from 45 per cent to 65 per cent. The appeal on Bell’s negligence and the costs appeal were dismissed.
2. Joint enterprise. The trial judge’s primary facts supported the irresistible inference that McCracken and Smith were engaged in a joint enterprise to ride the bike dangerously. McCracken knew how trials bikes were being used in Carlisle, knew Smith was likely to ride dangerously and remained on the bike despite opportunities to get off. Express encouragement was unnecessary. His presence and continued participation amounted to implied encouragement and made him more than a mere passenger.
3. Illegality. The court applied the principled approach in Les Laboratoires Servier v Apotex Inc [2014] UKSC 55. Dangerous driving contrary to section 2 of the Road Traffic Act 1988 was serious criminal conduct amounting to turpitude. The objective statutory test did not make the offence one of strict liability, since McCracken knew the facts giving rise to the offence.
4. Claims against the participants and Bell. Following Joyce v O’Brien [2013] EWCA Civ 546, where the character of a joint criminal enterprise makes an unusual or increased risk foreseeable and that risk materialises, the injury may be treated as caused by the claimant’s criminal conduct even though the immediate act was that of another participant. Recovery against Smith was therefore barred, although that issue was not before the court. The position differed as against Bell. The accident had two causes: the dangerous riding and Bell’s negligent driving. The ex turpi causa defence did not require the court to disregard either cause. McCracken could recover from Bell, subject to a reduction for contributory negligence. This approach was consistent with Revill v Newbery [1996] QB 567.
5. Negligence and apportionment. Bell should have looked sufficiently along the cycle path before turning, particularly because he had seen the trials bikes and should have been alert to their possible return. The bike was there to be seen. Applying Jackson v Murray [2015] UKSC 5, the Court of Appeal could adjust the apportionment because the trial judge had materially understated McCracken’s blameworthiness and the causative potency of his participation in the joint enterprise. A total deduction of 65 per cent was fair.
6. Costs. The judge’s discretion to make a Sanderson order fell within the reasonable ambit recognised in Irvine v Commissioner of Police for the Metropolis [2005] EWCA Civ 129. It was reasonable to sue the MIB, there was no finding of dishonesty, and Bell’s denial of negligence necessitated the MIB’s continued participation. Bell was therefore ordered to pay 90 per cent of the MIB’s recoverable costs.

• Court of Appeal (Civil Division) — In [2015] EWCA Civ 380, the appeal was allowed in part by increasing the contributory-negligence deduction from 45 per cent to 65 per cent. The remaining liability appeal and the costs appeal were dismissed.
• High Court of Justice, Queen’s Bench Division — In [2013] EWHC 3620 (QB), Keith J found Smith and Bell negligent, rejected the illegality defence against Bell, reduced damages by 45 per cent, and ordered Bell to pay 90 per cent of the MIB’s recoverable costs.