Clark v Farley & Anor

For ex turpi causa to bar a personal injury claim arising from dangerous driving, the claimant must have participated in a criminal joint enterprise with the relevant defendant. The claimant must have encouraged or assisted the dangerous driving and intended to encourage or assist it. Mere foreseeability that dangerous driving might occur is insufficient, although it may provide evidence from which intention can be inferred. The case against each rider must be considered separately. Contributory negligence is assessed by considering relative blameworthiness and causative potency as a whole; separate elements should not simply be aggregated by adding percentage deductions.

The claimant, aged 15 at the time, suffered catastrophic brain injury while travelling as a pillion passenger on an uninsured off-road motorcycle. The motorcycle collided with another motorcycle on a narrow path in Bold Forest Park. The claimant sued the riders and the Motor Insurers’ Bureau.

The MIB relied on ex turpi causa, alleging that the claimant had joined a criminal enterprise involving dangerous driving. Alternatively, it alleged contributory negligence. The central issues were whether the claimant intended to encourage or assist either rider’s dangerous driving, whether the defence barred the claim, and the appropriate reduction for contributory negligence.

1. Ex turpi causa. The agreed two-stage approach required consideration of whether the claimant’s conduct involved turpitude and, if so, whether the claim against each rider was founded on that turpitude.
2. Joint enterprise. Applying McCracken v Smith, MIB and Bell and R v Jogee, the claimant had to have encouraged or assisted the relevant rider’s dangerous driving and intended to encourage or assist it. Mere foreseeability was insufficient, although it could support an inference of intention. The case against each rider had to be considered separately.
3. The riders’ conduct amounted to dangerous driving under section 2A of the Road Traffic Act 1988. However, the evidence did not establish that the claimant knew the motorcycle was likely to be ridden dangerously, or that he intended to encourage dangerous driving by Mr Edmonds. There was no evidence of discussion, agreement, encouragement or assistance between the claimant and Mr Farley. McCracken was distinguished on its facts.
4. The defence failed against both riders. Their dangerous driving caused the accident, and they were jointly and severally liable. Responsibility between them was apportioned equally.
5. Contributory negligence. The claimant should have foreseen the inherent risks of travelling as a pillion passenger on the narrow path and was careless about his own safety. His failure to wear a helmet was also relevant. The correct approach was to assess relative blameworthiness and causative potency overall, without double-counting or mechanically adding separate deductions. The appropriate total reduction was 40 per cent.
6. The claimant was entitled to recover 60 per cent of his damages against each rider. The MIB was required to satisfy the judgment under its contingent liability pursuant to the Uninsured Drivers Agreement.