Wallett & Ors v Vickers

Dangerous driving by a claimant does not, without more, bar a negligence claim against another driver whose conduct materially contributed to the injury. The appropriate response is to assess causation and reduce damages for contributory negligence.

The ex turpi causa principle bars recovery where the claimant and defendant were participants in a criminal joint enterprise. Such liability requires both encouragement or assistance in the commission of the offence and an intention to encourage or assist it. Competitive driving, without more, does not establish that mental element. On the facts, the deceased’s greater blameworthiness and causative potency justified a 60% reduction in damages.

The claimant, on behalf of the dependants of Ian Hill, appealed from the County Court at Sheffield, where Mr Recorder Kirtley dismissed a claim under the Fatal Accidents Act 1976. The deceased and the defendant had driven alongside each other at approximately 70 to 80 mph on a 40 mph dual carriageway while competing to reach a narrowing section first. The deceased lost control and died; the defendant’s vehicle was not involved in the collision.

The Recorder found that the defendant’s driving materially contributed to the death but held that the claim was barred by ex turpi causa because the drivers were engaged in a criminal joint enterprise. The appeal concerned causation, the mental element required for such an enterprise, the scope of the illegality defence, and contributory negligence.

1. Appeal allowed. The Recorder had found causation, but his finding of a criminal joint enterprise could not stand. The claim was therefore not barred by ex turpi causa.

2. Following McCracken v Smith [2015] EWCA Civ 380, dangerous driving by a claimant does not itself bar recovery against another driver whose negligence materially contributed to the injury. The claimant’s conduct is addressed through contributory negligence. The defendant’s broader submission, that the deceased’s own dangerous driving was sufficient to defeat the claim regardless of joint enterprise, was inconsistent with that authority.

3. The position differs where the parties are engaged in a criminal joint enterprise. In accordance with R v Jogee [2016] UKSC 8, accessory liability requires both a conduct element—encouragement or assistance in the commission of the offence—and the mental element of an intention to encourage or assist it. A finding that one driver’s conduct in fact encouraged the other was insufficient.

4. The Recorder made no express finding that the deceased intended to encourage the defendant to drive dangerously. The references to racing established only that each driver intended to reach the narrowing road first. That was a separate objective, not a shared criminal purpose. The evidence did not justify an inference that either driver intended the other to drive dangerously.

5. The defendant’s alternative case, advanced for the first time on appeal, was also procedurally inappropriate. The trial had proceeded on the agreed basis that criminal joint enterprise was the decisive issue, and the Recorder had made no findings on the wider policy questions arising under Patel v Mirza [2016] UKSC 42.

6. For contributory negligence, the deceased bore the greater responsibility in both blameworthiness and causative potency. The damages were reduced by 60%. Judgment was entered for the claimant for £86,000, being 40% of the agreed quantum of £215,000.

1. High Court (Queen's Bench Division): Wallett & Ors v Vickers [2018] EWHC 3088 (QB) allowed the appeal from the County Court at Sheffield, rejected the ex turpi causa defence, and entered judgment for the claimant for £86,000.
2. County Court at Sheffield: Mr Recorder Kirtley dismissed the claim, finding causation but holding that the claim was barred by a criminal joint enterprise.