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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> McCracken v Smith & Ors [2015] EWCA Civ 380 (22 April 2015)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/380.html
Cite as: [2015] EWCA Civ 380
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Keith
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE UNDERHILL
and
LORD JUSTICE CHRISTOPHER CLARKE
____________________
| Daniel McCracken (a protected party suing by his mother and litigation friend Deborah Norris) |
Claimant/ 1st Respondent |
|
| - and - |
||
(1) Damian Smith (2) The Motor Insurers' Bureau (3) Darren Michael Bell |
1st Defendant/ 2nd Respondent 2nd Defendant/ 3rd Respondent 3rd Defendant/ Appellant |
____________________
Christopher Melton QC and Simon Kilvington (instructed by Slater and Gordon (UK) LLP) for the 1st Respondent
The 2nd and 3rd Respondents did not appear at the hearing of the appeal
Hearing dates : 4-5 March 2015
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Crown Copyright ©
- The background to this case is set out very clearly in the opening paragraphs of the judgment of Keith J in the court below:
- In the event, the judge's primary findings, as set out in his judgment, were as follows:
- In subsequent written notes the judge dealt with a number of consequential matters. They included an apportionment of liability between Damian and Mr Bell, in the ratio of 80% to 20%. They also included a ruling that the MIB was entitled to 90% of its costs and that those costs should be paid by Mr Bell (as the unsuccessful co-defendant) rather than by Daniel.
- Mr Bell now appeals to this court against (1) the judge's rejection of the defence of ex turpi causa; (2) the finding that Mr Bell was negligent; (3) the judge's reduction in damages by 45%, rather than a substantially higher figure, on account of Daniel's contributory negligence; and (4) the ruling that the MIB's recoverable costs be paid by Mr Bell rather than by Daniel.
- At paragraphs 5-40 of his judgment the judge examined the evidence and made detailed findings of fact. I will pick out some of the key findings.
- The special operation which the police mounted in Carlisle to monitor the extent to which trials bikes (i.e. motor cycles not adapted or suitable for road use) were being ridden dangerously in and around the town was called Operation Minx and commenced in February 2006. The intelligence gathered by the police was that the road in which Daniel's family, the McCrackens, lived – and in particular the cul-de-sac in which the family lived – was the centre of much of the activity. It was where the bikes disappeared when followed or chased by the police.
- The kind of activity the police were monitoring could be seen on video footage posted on YouTube on 13 October 2006. The footage showed a number of people driving dangerously on trials bikes, doing "wheelies" and other manoeuvres. The streets were identified as streets in Carlisle, and the footage ended in the road where the McCrackens lived. At one point the face of a boy could be clearly seen, but the judge rejected a suggested identification of the boy as Daniel's younger brother.
- During Operation Minx itself there was no intelligence that Daniel had been involved in the activity. But on 7 January 2007, about three weeks before the accident, a police officer investigating reports of people riding trials bikes in an area of west Carlisle saw Daniel astride a bike in circumstances that caused him to visit Daniel at home later that day and, in effect, to warn him about the use of the bike. The judge found that the likelihood was that Daniel had been riding one of the bikes on the road that day and that the probability was that he rode trials bikes on the road in Carlisle on other occasions. He also found that Damian was likely to have been correct when he said in cross-examination that Daniel had ridden trials bikes on the road about as often as he, Damian, had done. The judge stressed, however, that "the fact that Daniel had been in the habit of riding bikes on the road in Carlisle does not mean that he had necessarily ridden them in the dangerous way depicted on the YouTube footage".
- The bike being ridden at the time of the accident was a green Kawasaki 85cc bike which had been stolen over a year earlier from an outbuilding in a remote part of Cumbria. It was an off-road competition bike, designed to carry a single rider and not a pillion passenger. The presence of a pillion passenger on it would have affected the stability of the bike and the efficiency of its brakes. It was not in dispute that it was one of the bikes seen on the YouTube footage. The judge found it likely that the bike was kept by one or other of the McCrackens. The probability was that it had been used recently in Carlisle, which was why it had been at the McCrackens' home on the day of the accident.
- The accident took place at about 2.30 pm on Wigton Road, Carlisle, at the entrance to Morton Community Centre. On the stretch of road in question the speed limit was 30 mph and the road had a single lane in each direction. There were cycle paths on both sides of the road, between the road and the pedestrian footpath. They were separated from the road and the footpath by a green verge on either side of them. Where the cycle path crossed the entrance to the community centre, there were double broken white lines informing cyclists that they had to give way to other traffic.
- The accident occurred when the bike which Damian was riding, with Daniel as his pillion passenger, collided with the minibus driven by Mr Bell. The bike was being ridden on the cycle path on the southern side of Wigton Road towards the city centre. The minibus had been travelling towards the city centre and was turning right into the community centre. The bike collided with the offside of the minibus near the driver's door. The circumstances of the collision itself are considered in greater detail later in this judgment, when I come to examine the challenge to the judge's finding that Mr Bell was negligent.
- The judge found that Damian and Daniel were close friends and that this went some way towards explaining how Daniel came to be a passenger on the bike. Damian himself had given various accounts of how Daniel came to be on it, but the judge found it probable that Damian had no actual recollection of events leading up to the accident. One of the accounts given by Damian was that he had been told by another boy, Brian Lee, that he had received a text from Daniel on the day of the accident asking him to pick Daniel up from school, that he had gone to Daniel's home to collect the bike, and that they had met up with Daniel's younger brother and another boy. The judge found that what Brian Lee told Damian about Damian having collected the bike from Daniel's home was likely to have been correct, in view of his finding that that was where the bike had been on the day of the accident. Whether Damian picked Daniel up by an arrangement which Daniel had initiated or by a chance encounter between the two of them was "not all that important", because on any view Daniel was content to get on the bike and remain on it for more than a matter of seconds.
- As to that last point, the judge said that the overwhelming weight of the evidence suggested that Daniel was picked up by Damian after he had walked some way along Wigton Road from the school. He had walked beyond the community centre. The probability was that after Daniel had been picked up they went towards the city centre before turning round and going back up Wigton Road past the community centre, and then turning round again. It meant that Daniel would have been on the bike for a matter of minutes rather than a matter of seconds before the accident.
- There was another bike on Wigton Road at the time. It was a yellow bike and was probably a trials bike. There was evidence that it was being ridden out of the city at the same time as the green bike with Damian and Daniel on it was travelling away from the city centre, and that when the green bike turned round the yellow bike did so as well. The witnesses disagreed about where on the road the yellow bike was being ridden, but it was on the road rather than on the cycle path. The judge was in no doubt that the yellow bike was travelling with the green bike. He found it unnecessary to make a finding as to whether Daniel's younger brother was on the yellow bike. He was sure that the people on both bikes knew each other and were riding together.
- The judge turned to why Daniel was on the green bike. Since this passage of the judgment is central to the appellant's criticisms, I should set it out in full:
- In the course of considering the issues of liability, the judge made further findings as to Damian's riding and Daniel's role. In holding that there must be judgment against Damian, unless Daniel's participation in Damian's wrongdoing should disentitle him from being compensated for his injuries, the judge said that there was no doubt that Damian's riding was negligent: he was travelling too fast, and he collided with the minibus because he was either going too fast to stop when the minibus crossed the cycle path or because he was not keeping a proper lookout for any vehicles or pedestrians which might cross the cycle path; he should not have been riding the bike on the cycle path at all; he ignored the broken white lines which told him that he had to give way to other traffic; and he should not have been carrying a pillion passenger. From other passages in the judgment, to some of which I will refer in a moment, it is clear that the judge's finding went further than one of negligence and that in his view Damian was riding the bike dangerously. It is in any event common ground on the appeal that Damian's riding is properly so characterised.
- The factual basis of the judge's rejection of the defence of ex turpi causa was his finding that Daniel was just going along for the ride and was not a party to the way in which Damian rode the bike. One sees that reasoning in a number of places:
- I think it sensible to consider the challenge to the judge's characterisation of Daniel's role before I turn to examine the legal arguments on the issue of ex turpi causa. Mr Stephen Grime QC, for the appellant, submits that the judge made three main mistakes: (1) he was wrong to characterise the activity as "just going for a ride" rather than going for a joyride, a term that Mr Grime uses to encompass the gamut of dangerous activities associated with the use of trials bikes on the roads of Carlisle; (2) he should have found that Daniel, although a pillion passenger, was participating in a joint enterprise with Damian to ride the bike dangerously; and (3) he should have found that Daniel's injuries were caused by his participation in the joint enterprise. If the judge's findings on those matters are reversed, Mr Grime submits that on the proper application of the relevant legal principles, Mr Bell should succeed in his defence of ex turpi causa.
- Mr Christopher Melton QC, for Daniel, has properly reminded the court of the need for caution when considering a challenge to the judge's evaluation of the facts. The hearing below lasted seven days and, although Daniel's mental incapacity prevented him from giving his own account, much time was spent analysing what he knew or must have known. It is submitted that special respect must therefore be given to the judge's findings of primary fact and to the inferences drawn by him, which were well balanced. Reliance is placed on the words of Lord Hoffmann in Biogen Inc v Medeva Plc [1997] RPC 1 and on the principles stated in Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642, [2003] 1 WLR 577 (as approved in Datec Electronics Holdings Ltd v UPS Ltd [2007] UKHL 23, [2007] 1 WLR 1325, at paragraph 46). Whilst I readily acknowledge the need for caution, it should be stressed that the appellant does not take issue in this case with any of the judge's findings of primary fact and that the challenge is limited to the inferences to be drawn from those findings. We may not be in quite as good a position as the judge in relation to the drawing of inferences but the exercise is one that we can and should undertake, assisted in this respect by the detail and clarity of the judge's findings of primary fact.
- The judge was on any view generous to Daniel in distancing him as he did from Damian's dangerous riding. The reluctant conclusion to which I have come is that he was unduly generous and that the inferences urged on us by Mr Grime are irresistible inferences on the facts as found. The judge was plainly right to find that Damian and Daniel "were going for a ride together with whatever that entailed"; but if one asks oneself what that ride was going to "entail", the only realistic answer, as it seems to me, is that it was going to entail the very kind of dangerous riding that in fact took place on this occasion. That was the kind of activity that youngsters on trials bikes had been engaging in on the roads of Carlisle, as illustrated by the YouTube footage (including the footage of this very bike). It was joyriding in the sense that Mr Grime attributes to that term. That is what Daniel must have expected to happen when he got on the bike. He clearly knew about trials bikes and the way they were being used on the road. He himself had ridden them on the road, albeit there was no evidence that he had ridden them dangerously. This particular bike had been stored at his home on the day of the accident. It was being ridden by his close friend Damian. When Damian picked him up on it, then, as the judge found, "he must have known that the bike was likely to be ridden on the road and too fast" (paragraph 40); "Daniel is likely to have known that Damian would be riding the bike in a dangerous manner" (paragraph 44); "he knew that Damian was likely to ride it dangerously" (paragraph 50). Moreover, the evidence shows that the bike was in fact ridden dangerously along the cycle path while Daniel was on it, yet he did not avail himself of the opportunity to get off it on either of the two occasions when it turned round.
- That leads in to the question of joint enterprise. The judge said that Daniel's criminal conduct was limited to allowing himself to be a pillion passenger on the bike when he knew that it had not been designed for pillion passengers and that Damian would be riding it without insurance or a valid driving licence. He dissociated Daniel from Damian's criminal conduct as the rider of the bike. He said that Daniel was just going along for the ride; he was not encouraging Damian, whether expressly or by his presence, to ride in the way Damian did; he was not aiding and abetting Damian's dangerous driving; he was not a party to the way Damian in fact rode the bike. It seems to me here too the judge was unduly generous to Daniel, in compartmentalising the conduct of the two boys in that way. The proper inference, in my view, is that the two boys were parties to a joint enterprise the essence of which was that the bike was to be ridden dangerously. That this must have been their common purpose from the outset is clear enough from the background to which I have referred but is reinforced, in relation to the time of the accident, by the fact that Daniel did not avail himself of the opportunity to get off the bike when it was in fact being ridden dangerously along the cycle path. I think it unrealistic to say, as the judge did, that the fact that Daniel remained on the bike did not mean that he wanted to show off to anyone but "could mean that he just enjoyed being a pillion passenger on a trials bike being ridden by a friend of his on the road" (paragraph 38).
- In R v Baldessare (1931) 22 Cr App R 70 the Court of Criminal Appeal upheld a conviction for manslaughter in circumstances where the appellant had been a passenger in a car which he and the driver had taken without permission and which was driven with criminal recklessness, knocking down and killing a pedestrian. The court said that the jury had come to the conclusion that the appellant and the driver "were acting together and joined in responsibility, not merely for the taking away of the car from the owner's possession, but also for the driving of it in the way in which it was in fact driven". There was held to have been evidence on which the jury could properly find that "community of purpose and action":
- For a further example of the application of the principle of joint enterprise in a road traffic context, reference can be made to R v Mahmood (Asaf) [1995] RTR 48. The appellant was the teenage passenger in a stolen motor car driven by the teenage co-defendant. The car was driven recklessly in the course of a police chase. The car slowed down and the two teenagers jumped out, leaving the car in gear. It continued onto the pavement and struck a child's pram, killing the child. The court held that "had the fatality occurred by reason of the car driven by the co-defendant colliding with a pedestrian, or colliding with some other car and killing the driver or passenger therein, it might well have been possible to leave it to the jury to take the view that what had occurred had resulted from a common unlawful enterprise which had culminated in unforeseen consequences" (page 52J-K), but the evidence did not sufficiently support a case from which the jury could infer that the appellant had entered a joint enterprise in which he contemplated the abandonment of the vehicle in the way that occurred. In the present case there is no such additional complexity; simply a "common unlawful enterprise" in which rider and passenger shared the purpose of going for a joyride.
- The joint enterprise so described rested in my view on implied agreement between Damian and Daniel to participate. I should also consider, however, the judge's rejection of the way the case was put in terms of Daniel aiding and abetting Damian's dangerous riding. There was no evidence of Daniel giving express encouragement to Damian to ride as he did, but it seems to me that the inference can and should be drawn that he gave implied encouragement by getting on the bike and by remaining on it in the circumstances already covered. He was more than a mere passenger. His presence on the bike must have been, and have been intended to be, an encouragement to Damian to ride as he did.
- I should add that it was common ground that the relevant standard of proof in this case, even in relation to the issue of participation in a criminal joint enterprise, was the civil standard of balance of probabilities, applied in the manner laid down in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 and subsequent cases explaining that decision. There was, however, no suggestion that anything turned on the standard of proof or the precise manner of its application.
- Having considered Mr Grime's submission that the judge erred in relation to the ride/joyride issue and the joint enterprise issue, I turn to the criticism of the judge's finding that the cause of Daniel's injuries was the way the bike was being ridden by Damian, not Daniel's decision to allow himself to be a pillion passenger. Mr Grime submits that Daniel's injuries were caused by his participation in the joint enterprise. He points to the "paradox" that the judge, having made this finding as to causation, went on to find in relation to contributory negligence:
- I will need to come back to the issue of causation, however, when considering how to approach it when applying the ex turpi causa principle to Daniel's claims against Damian and Mr Bell respectively.
- In this section of my judgment I will look at the authorities of primary relevance to the issue of ex turpi causa as it arises in this case. In the following section I will consider how the principles to be derived from those authorities apply in the circumstances set out above.
- In Pitts v Hunt [1991] 2 QB 24 the plaintiff was a pillion passenger on a motor cycle which was involved in a collision resulting in the death of the motor cycle rider and serious injuries to the plaintiff. Both the plaintiff and the rider were teenagers. They had both been drinking prior to the accident, the plaintiff knew that the rider did not hold a driving licence and was uninsured, and on the findings of the judge at first instance "the deceased was riding this motor cycle recklessly and dangerously and at the very least the plaintiff was aiding and abetting that driving. He was not manipulating the controls of the machine but he was fully in agreement with and was encouraging the way in which the deceased was manipulating the controls" (page 37C). The plaintiff's claim in negligence against the rider was dismissed on the ground that, on the application of the ex turpi causa principle, the rider owed no duty of care to the plaintiff.
- The Court of Appeal upheld the decision, though there was no clear-cut ratio as to how the ex turpi causa principle produced that result. Beldam LJ, referring to the seriousness of the offences committed, considered that the plaintiff was precluded on grounds of public policy from recovering compensation for the injuries which he sustained in the course of the very serious offences in which he was participating (page 46E-F). Balcombe LJ founded his judgment on the basis that the circumstances of the case were such as to preclude the court from finding that the deceased owed a duty of care to the plaintiff (page 51A-B). Dillon LJ took the view that the court could not establish the standard of care for the course of criminal activity (pages 59G-60C).
- Gray v Thames Trains Ltd [2009] 1 AC 1339 was a very different case but is important for its effect on the later cases in which Pitts v Hunt has been considered. The claimant in Gray was a passenger on a train involved in a major railway accident. He suffered post-traumatic stress disorder which he alleged had been caused by the accident. While suffering from that disorder he killed a man, in respect of which he pleaded guilty to manslaughter on the ground of diminished responsibility and was detained pursuant to a hospital order. He brought a claim in negligence against the train operator and the company responsible for the rail infrastructure, claiming damages for loss of earnings, for loss of liberty and damage to reputation, and for feelings of guilt and remorse consequent on the killing. The House of Lords held that all such recovery was excluded on grounds of ex turpi causa.
- Lord Hoffmann said that the relevant rule could be stated in a wider or a narrow form:
- At the very end of that passage, Lord Hoffmann referred to the decision of the Court of Appeal in Revill v Newbery [1996] QB 567. The claim in that case was brought by a man who was shot and injured by the occupier of land in the course of an attempted burglary on the property. The Court of Appeal held that the liability of the occupier depended on ordinary principles of negligence at common law and that he had been negligent in firing the shot. Its rejection of a defence of ex turpi causa was based on general considerations relating to the existence of a duty of care even towards trespassers engaged in criminal activities, rather than on the causation analysis suggested by Lord Hoffmann. The only member of the court to deal in terms with causation was Evans LJ, who said this at page 579B-D:
- Lord Hoffmann's observations in Gray were applied in Delaney v Pickett [2011] EWCA Civ 1532, [2012] 1 WLR 2149. The claimant in that case was the passenger in a car driven by the first defendant and was injured in an accident caused by the first defendant's negligent driving. The majority of the Court of Appeal upheld the finding of the judge at first instance that the purpose of the journey was the transportation of cannabis intended for resale and that the two men were acting in concert in a joint enterprise for illegal purposes. In unanimously rejecting the defence of ex turpi causa, however, the court applied a causation test. Ward LJ, with whom the other members of the court agreed on this point, stated:
- The cases referred to above, together with a body of other authorities, including Australian cases, were considered in Joyce v O'Brien [2013] EWCA Civ 546, [2014] 1 WLR 70. In that case the claimant and the first defendant had stolen some ladders and placed them in a van in which they fled the scene of the crime. The claimant fell out of the back of the van, suffering serious injury, while the first defendant was driving quickly away from the crime scene. The first defendant subsequently pleaded guilty to dangerous driving. The claimant brought a claim in negligence against him and his insurers. The Court of Appeal upheld the dismissal of the claim on the basis of ex turpi causa. Elias LJ, in a judgment with which the other members of the court agreed, set the scene as follows:
- Elias LJ then dealt, at paragraphs 6-20, with the issue of criminal joint enterprise, including Pitts v Hunt and the bases on which liability was held to be excluded by the ex turpi causa principle in that and other cases. The section ended with consideration of the decision of the High Court of Australia in Miller v Miller [2011] HCA 9, where the court's conclusion on the issue of principle was expressed as follows:
- The next section of Elias LJ's judgment, at paragraphs 21-29, was headed "Ex turpi and criminal acts by individual". It started as follows:
- Elias LJ referred to what Lord Hoffmann had said in Gray about causation. He noted that Lord Hoffmann was considering a case where the question was simply whether the claimant had brought the injury on himself in circumstances where the alleged tortfeasor who caused the injury was not a party to the crime; Lord Hoffman was not dealing with cases where a claimant is injured in the course of a joint criminal enterprise by another person who is party to that enterprise, and he did not refer to any of the relevant authorities where that situation has arisen. Elias LJ said that in view of that, "an argument could no doubt have been advanced that in the joint enterprise context the older authorities, with the focus on duty rather than causation, better catch the particular feature which justifies the application of the ex turpi principle in these cases" (paragraph 26), but that the Court of Appeal had applied the causation principle to a joint enterprise case in Delaney v Pickett. Having considered Delaney v Pickett, he continued:
- As to the application of the principles to the facts of the case, it was held that the judge at first instance had been entitled to conclude that the injury was caused by the criminal activity in which the claimant was engaged: it resulted both from his personal conduct in placing himself in such a dangerous position (standing at the back of the van, supporting the ladders) and because he took the heightened risk of dangerous driving by the driver and that risk materialised. The court dismissed the suggestion that active encouragement of the dangerous driving was necessary: "It is enough that the claimant and negligent driver are involved in the criminal enterprise together and that the accident arises out of activities which it can be foreseen might be committed in the course of the enterprise" (paragraph 48). The court also rejected an argument based on proportionality:
- It is necessary finally to consider the decision of the Supreme Court in Les Laboratoires Servier v Apotex Inc [2014] UKSC 55, [2014] 3 WLR 1257, in which Lord Sumption (with whom Lord Neuberger and Lord Clarke agreed) sought to provide a principled framework for the ex turpi causa defence. The context of that case, namely a patent dispute in which the relevant defence was that it was contrary to public policy for a company to recover damages under a cross-undertaking that prevented the sale of products the manufacture and importation of which would have been in breach of patent, was very different indeed from the present, and no reference was made to the criminal joint venture cases. Whilst those considerations need to be kept in mind, the statements of principle are of obvious importance.
- In a section on the illegality defence, at paragraphs 13-22 of his judgment, Lord Sumption pointed out that two features of this area of law have been characteristic of it from the outset: first, it is a rule of law and not a mere discretionary power; and secondly, it is based on public policy and not on the perceived balance of merits between the parties to any particular dispute. One of the tests formerly applied in the cases had been that it would be an affront to the public conscience to grant the relief sought, but the House of Lords in Tinsley v Milligan [1994] 1 AC 340 was unanimous in rejecting that test, on the ground that it was unprincipled. The House was divided on the question what should be substituted for the public conscience test, but neither of the alternative tests put forward was discretionary in nature or was based on achieving proportionality between the claimant's misconduct and his loss: on the contrary, it was recognised that the practical operation of the law in this field will often produce disproportionately harsh consequences. In Gray, Lord Hoffmann had identified two rules as relevant where the illegality defence was raised in answer to a claim for compensation. Neither rule depended on the court's assessment of the significance of the illegality, the proportionality of its application or the merits of the particular case. Having criticised the Court of Appeal in the case before him for applying a discretionary approach which was contrary to established legal principle, Lord Sumption concluded this section of his judgment as follows:
- Under the heading "What is 'turpitude'?", Lord Sumption continued:
- On Lord Sumption's approach in Les Laboratoires Servier, the first question to consider is whether Daniel's conduct amounted to "turpitude" for the purposes of the ex turpi causa defence. In the light of my previous findings, the conduct in question must be taken to have been Daniel's participation with Damian in a joint enterprise to ride the bike dangerously. I have no doubt that such conduct did amount to turpitude. A person who drives a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence contrary to section 2 of the Road Traffic Act 1988, punishable on conviction on indictment by up to two years' imprisonment. Dangerous driving was at the heart of the conduct found to engage the ex turpi causa principle in Pitts v Hunt; see also, for example, the Australian case of Miller v Miller referred to at paragraph 36 above. On no view is it a trivial offence. At one point in argument there appeared to be a suggestion that it might fall to be treated in the same way as an offence of strict liability, since the standard of dangerous driving is an objective one: by section 2A of the 1988 Act, a person is to be regarded as driving dangerously if and only if (a) the way he drives falls far below what would be expected of a competent and careful driver, and (b) it would be obvious to a competent and careful driver that driving in that way would be dangerous. I see no substance in the suggestion. In any event, the exception for strict liability offences to which Lord Sumption referred at paragraph 29 of his judgment in Les Laboratoires Servier relates to offences where liability is strict and the claimant is not aware of the facts making his conduct unlawful; whereas in the present case Daniel was plainly aware of the facts giving rise to the offence of dangerous driving.
- The next question is whether Daniel's claim against Mr Bell is founded on that turpitude so as to provide a defence to the claim. I use "founded on" in a general sense. It is common ground that it is not a question of whether facts disclosing the immoral or illegal act are relied on as part of the claimant's pleaded case or evidence. Lord Sumption's survey of the illegality defence in Les Laboratoires Servier starts with the statement of principle in Holman v Johnson (1775) 1 Cowp 341 that "[no] court will lend its aid to a man who founds his cause of action on an immoral or an illegal act", and ends with the paragraph in which he refers to "the vast and disparate category of cases where a party in some sense founds his claim on an immoral or illegal act" (paragraph 22, quoted in full above). He goes on to ask "what relationship must the turpitude have to the claim?" It was unnecessary to consider that question any further in Les Laboratoires Servier itself. In the present case we have to decide whether the relationship between Daniel's turpitude and his claim against Mr Bell is such as to debar the claim.
- If this appeal concerned Daniel's claim against Damian, rather than his claim against Mr Bell, I think that the answer to the question would be straightforward. There is a close parallel with the circumstances in Pitts v Hunt, where the motor cycle pillion passenger injured in a collision resulting from the rider's dangerous driving was unable to recover against the driver because, in effect, the dangerous driving was the subject of a joint enterprise to which the pillion passenger was a party. The reason for denying recovery in such a situation has been developed and refined since Pitts v Hunt, in that a generalised reliance on public policy will no longer suffice and there has been a shift in focus away from duty of care or standard of care and towards causation. But nothing that has happened would lead one to expect a different outcome from that in Pitts v Hunt itself.
- That is confirmed by Joyce v O'Brien. The section of Elias LJ's judgment on criminal joint enterprise considers the line of authority tending towards the view that a driver who drives dangerously should not be held to owe a duty of care to a passenger who was complicit in the offence. I have the impression that Elias LJ would have preferred to base himself on a duty of care analysis but felt obliged to follow the causation analysis propounded by Lord Hoffmann in Gray and applied in that context in Delaney v Pickett. I have considerable sympathy for that point of view. Lord Hoffmann was not considering a case of criminal joint enterprise but was addressing the very different situation where a criminal act by the claimant is said to have been the consequence of the defendant's tort. It may be that the court in Delaney v Pickett, of which I was a member, seized too readily on the causation analysis as providing an obvious answer to the issue in that case. In any event, Elias LJ made a brave attempt to bring the two approaches together in his statement, at the end of paragraph 28 of his judgment, that "the injury will be caused by, rather than occasioned by, the criminal activity of the claimant where the joint criminal illegality affects the standard of care which the claimant is reasonably entitled to expect from his partner in crime". That led into his formulation of principle, at paragraph 29, which I think it helpful to repeat:
- Whatever reservations one may have about the reasoning that led to that statement of principle, it seems to me that this court is bound by Joyce v O'Brien and ought now to follow it rather than try to backtrack. If the statement of principle is applied to Daniel's claim against Damian, it should in my view lead to a denial of recovery. Since there was a joint enterprise between Daniel and Damian to ride the bike dangerously, and the increased risk of harm as a consequence of such riding was plainly foreseeable, Daniel's injury can properly be said to have been caused by his own criminal conduct even though it resulted from the negligent act of Damian. Another way of expressing the point is that although as a matter of fact the negligent act was that of Damian, Daniel was jointly responsible in law for it and he cannot bring a claim in respect of his own negligent act.
- It follows that I consider the judge to have been wrong to reject the defence of ex turpi causa in relation to Daniel's claim against Damian and therefore in relation to his claim against the MIB. Those claims are not, however, the subject of the present appeal; and it by no means follows that the same conclusion applies to Daniel's claim against Mr Bell, with which alone we are concerned.
- Since Daniel was jointly responsible for the dangerous driving, he is in the same position as Damian, the actual rider of the bike, as regards a claim in negligence against Mr Bell. The question in each case is whether the fact that the bike was being ridden dangerously provides a defence to the claim. The answer to that question is one with potentially wide ramifications, capable of affecting any driver involved in an accident with a negligent third party in circumstances where he or she is driving dangerously or is committing any other road traffic offence of sufficient seriousness to amount to turpitude for the purposes of the ex turpi causa defence.
- If the duty of care analysis formerly applied in the joint enterprise cases had any application here, it would tell decisively against the ex turpi causa defence succeeding. It is clear that the dangerous driving of the bike had no effect whatsoever on Mr Bell's duty of care or on the standard of care reasonably to be expected of him.
- I find the causation analysis more problematic. In my view the situation cannot be accommodated neatly within the binary approach of Lord Hoffmann in Gray. One cannot say that "although the damage would not have happened but for the tortious act of the defendant, it was caused by the criminal act of the claimant"; but equally one cannot say that "although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant". The accident had two causes, properly so called – the dangerous driving of the bike and the negligent driving of the minibus – and it would be wrong to treat one as the mere "occasion" and the other as the true "cause". Daniel's injury was the consequence of both, not just of his own criminal conduct and not just of Mr Bell's negligence.
- I do not think that the fact that the criminal conduct was one of the two causes is a sufficient basis for the ex turpi causa defence to succeed. Our attention has not been drawn to any remotely comparable case where it has in fact succeeded: for reasons I have explained, cases involving a claim by one party to a criminal joint enterprise against another party to that joint enterprise are materially different. In my judgment, the right approach is to give effect to both causes by allowing Daniel to claim in negligence against Mr Bell but, if negligence is established, by reducing any recoverable damages in accordance with the principles of contributory negligence so as to reflect Daniel's own fault and responsibility for the accident.
- Lord Sumption has spelled out in Les Laboratoires Servier that the ex turpi causa defence is rooted in the public interest. The public interest is served by the approach I have indicated. It takes into account both the negligent driving for which Mr Bell is responsible and the dangerous driving for which Daniel is responsible It enables damages to be recovered for the negligence of Mr Bell but not for Daniel's own criminal conduct. I see no reason why the court should instead apply a "rule of judicial abstention" (Lord Sumption in Les Laboratoires Servier, paragraph 23) and withhold a remedy altogether.
- The approach I have indicated was in substance that taken by the Court of Appeal in Revill v Newbery, the case where a trespasser engaged in criminal activities was held not to be debarred from claiming against the negligent occupier (see paragraph 33 above). I acknowledge that Lord Hoffmann in Gray treated the case as one where, although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant. But I have referred to what Evans LJ said in the case itself to the effect that any broad test of causation was almost by definition satisfied, and to his observation that the relevant factors of the claimant's fault and responsibility "are taken into account in the assessment of contributory negligence", as was done in the apportionment made by the trial judge.
- Accordingly, I would hold in this case that the judge was right to reject the ex turpi causa defence in relation to Daniel's claim against Mr Bell, albeit my reasons are very different from those of the judge. The relationship between Daniel's turpitude – his participation in the joint enterprise to ride the bike dangerously – and his claim in negligence against Mr Bell is not such as to debar the claim. The causal contribution of the dangerous riding of the bike for which Daniel was responsible can and should be taken into account in the assessment of his contributory negligence.
- The judge dealt with the issue of Mr Bell's negligence at paragraphs 64-82 of his judgment.
- Mr Bell's evidence was that as he approached the community centre along Wigton Road, he slowed down and indicated that he was turning right. He could not recall whether the minibus came to a halt but the judge found that it probably did. Mr Bell said that he was watching the approaching traffic, waiting for an opportunity to cross into the community centre; he was also checking for any people or vehicles that might have been coming out of the centre; and he not only checked his rear-view mirrors for any vehicles behind him, but he was also checking that the cycle path and the footpath which he had to cross were clear of cyclists and pedestrians. He did not see the bike that Damian and Daniel were on before the moment of impact. The judge found that if Mr Bell had looked down the road over his shoulder, the bike was there to be seen, and that he had failed to check on its presence.
- An important part of the judge's reasoning related to Mr Bell's acknowledgment in his witness statement dated 1 May 2007 that as he had been driving up Wigton Road he had seen the two trials bikes (i.e. the bike Damian and Daniel were on, and the yellow bike) travelling towards him from the city centre; they were either on the cycle path or on the footpath on the opposite side of the road; they were travelling too fast. The judge said this:
- The judge found that the view Mr Bell would have had over his shoulder down Wigton Road would have been at least 107 metres and that a bike travelling at 40 mph would have taken about 6 seconds to cover that distance (and longer than that if its speed was less than 40 mph); all of which suggested that the bike was not going so fast that Mr Bell could not be expected to have seen it when it was within his field of vision until it was too late. On the basis of other calculations in evidence, he said that if Mr Bell had looked over his shoulder down the cycle path as he started to cross the road, the bike would have been between 41.5 and 96.7 metres away: it was there to be seen. The judge also found that if Mr Bell had looked over his shoulder at the cycle path or footpath, he was likely to have seen the yellow bike on the road, and the fact that he did not see the yellow bike suggested that he did not check the cycle path or the footpath before he started to cross the road. He concluded:
- Mr Grime submits that in making a finding which depended on the proposition that Mr Bell should have been aware of the possibility that the bike would turn round and continue to travel at speed along the cycle track rather than using the road, when there was nothing to warn of that possibility, the judge was imposing far too high a standard; and absent that finding, it could not be suggested that Mr Bell was at fault in not seeing the approach of the bike when (as he said happened) he glanced over his shoulder in the final moments before commencing his turn.
- I do not accept that there is anything wrong with the judge's finding. The judge gave a careful explanation of why Mr Bell should have been aware of the possibility that one or more bikes were approaching on the cycle path or footpath. I see no basis for us to interfere with his assessment, founded as it was in the particular circumstances of the case. And once that particular factor is accepted, the finding of negligence follows inevitably. I would add that a finding of negligence would seem to me to have been appropriate even in the absence of that particular factor. On any view, Mr Bell ought to have looked over his shoulder along the cycle path before turning right; and if he had looked, on the judge's findings, the bike was there to be seen. Either Mr Bell did not look or, despite looking, he failed to see the bike he should have seen. I do not accept that it was sufficient for him to look only a short way along the cycle path, such that he could not be expected to see a bike between 41.5 and 96.7 metres away.
- I have already set out much of what the judge said in relation to contributory negligence but it is convenient to repeat and complete the relevant quotation from his judgment:
- Mr Grime submits that the total apportionment of 45% is too low because it fails to take sufficient account of Daniel's blameworthiness and of the causative impact of his decision to go on the joyride. He submits that the cases on joyriding indicate that an apportionment of 50:50 between rider and passenger is generally appropriate (see, for example, Pitts v Hunt [1991] 1 QB 24 at 49C and 52A-C, and Morris v Murray [1991] 2 QB 6 at 17F, 30G and 32H). In this case a deduction of 50% (plus the 15% for failure to wear a helmet) would have been appropriate if Damian had been the only defendant, having regard to their joint responsibility, and it would be unjust to make a lesser deduction in relation to the claim against Mr Bell. It is therefore submitted that there should be a total deduction of 65%. Mr Grime does not contend for any greater deduction than that.
- Mr Melton submits, by contrast, that the total deduction of 45% was greater than was equitable and that the overall deduction should not exceed one third.
- We were referred to the recent decision of the Supreme Court in Jackson v Murray [2015] UKSC 5 as to the correct approach of an appellate court in respect of an apportionment on account of contributory negligence. Lord Reed (with whom Lady Hale and Lord Carnwath agreed) expressed the test as follows:
- When it came to the facts of the case, Lord Reed could not discern any satisfactory explanation for the lower court's conclusion that the major share of responsibility should be attributed to the pursuer. In his view, the defender's conduct played at least an equal role to that of the pursuer in causing the damage and was at least equally blameworthy. He concluded:
- In the present case, for reasons already given at paragraphs 18-26 above, I am satisfied that the judge fell into material error in his characterisation of Daniel's role. Daniel's fault went beyond allowing himself to be a pillion passenger on the bike. It extended to his participation with Damian in a criminal joint enterprise to ride the bike dangerously. Daniel was therefore the author of his own misfortune to a greater extent than allowed by the judge. A fair reflection of that greater degree of blameworthiness and causative potency of Daniel's conduct would in my judgment be an overall deduction of 65% in his damages (i.e. 50%, plus the agreed deduction of 15% for failure to wear a helmet), as compared with the overall deduction of 45% ordered by the judge. It is plainly open to this court, in line with the principles in Jackson v Murray, to make such an adjustment, attributing to Daniel the greater share of responsibility for his injuries rather than the lesser share attributed by the judge. I would so order.
- Following delivery of his judgment on liability, the judge had to consider, among other matters, various issues concerning the MIB's costs. In a written Note dated 21 January 2014 the judge considered an argument by Mr Bell's insurers that the MIB should not have its costs relating to the issue of whether Mr Bell had been negligent because that was an issue which the MIB could safely have left to Daniel's legal team. This triggered a dispute between the MIB and Mr Bell's insurers as to whether Mr Bell's responsibility for the accident could have been determined by the MIB's Technical Committee in advance of the trial, thereby avoiding the need to incur two sets of defence costs: a finding by the Technical Committee that Mr Bell was responsible to a meaningful degree would have meant that his insurers assumed the responsibility to satisfy the whole of any judgment which Daniel obtained. In the event, for reasons it is unnecessary to go into, the judge concluded in a Note dated 21 March 2014 that it would not be appropriate to decide what order to make in respect of the MIB's costs by reference to the role of the Technical Committee. He went on in the same Note to consider whether the MIB should recover all its costs and who should pay its recoverable costs.
- The judge held that the MIB was entitled to 90% of its costs. That figure is not the subject of dispute but I should mention one factor taken into account in setting the figure, since it is relevant to the judge's further decision as to who should pay those costs. The judge said that the MIB was incontrovertibly successful in its defence to Daniel's claim and, moreover, that "it succeeded in its claim that Mr Bell had caused or contributed to the accident by his own negligence, thereby ensuring that even if Daniel had obtained judgment against it, it would have been Mr Bell's insurers which would have had to satisfy the whole of Daniel's judgment" (paragraph 8 of the Note). He added that he had not overlooked the argument that the MIB could have left the issue of whether Mr Bell had been negligent to Daniel's legal team and that the costs incurred by the MIB in seeking to prove negligence on the part of Mr Bell should not be allowed, but that "[it] was just as important for the MIB to prove negligence on the part of Mr Bell as it was for Daniel to, and to expect the MIB to be involved in the case on the issues of ex turpi causa and its own exemption from liability, and yet to refrain from taking part in an issue in which it had a direct interest, is unrealistic" (paragraph 11).
- The judge continued:
- Mr Grime submits that that order was wrong and that the only appropriate order would have been that Daniel should pay the MIB's recoverable costs, without recourse to Mr Bell. He refers to the provisions of CPR rule 44.2 whereby the conduct of a party (including whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim) is one of the circumstances to which the court must have regard in the exercise of its discretion with regard to costs. He also cites the guidance in Irvine v Commissioner of Police for the Metropolis [2005] EWCA Civ 129, [2005] 3 Costs LR 380, which included the following (in the judgment of Peter Gibson LJ, with whom the other members of the court agreed):
- That guidance was followed in Moon v Garrett [2006] EWCA Civ 1121, [2007] ICR 95, where the court added that "[it] will always be a factor whether one defendant has sought to blame another" (per Waller LJ at paragraph 36).
- Mr Grime's core submission in the present case is that Daniel's claim against the MIB was a dishonest claim and that this should have resulted in an order that Daniel alone be liable for the MIB's costs. The detailed development of the submission in the skeleton argument on the appeal, reflecting the skeleton argument before the judge, proceeds as follows. Daniel lost against the MIB on the basis that he rode on the bike when he knew that Damian was not insured. The decision to ride on the bike was his choice and is "conduct" as referred to in the rule. In the abstract, it may have been a reasonable choice for the claimant's legal team to pursue the MIB if the basis for doing so had a good foundation. But it is necessary to consider not only the lawyers but also the litigation friend responsible for the conduct of proceedings on Daniel's behalf. The litigation friend was Daniel's mother, who gave evidence and appears to have been closely involved throughout. She may be presumed to have given the instructions which caused a dishonest claim to be advanced. Also among the witnesses seeking to support Daniel's case were his father and one of his brothers who provided evidence seeking to distance him from the illegal bike culture. The making of a dishonest claim is "conduct" and is akin to exaggeration referred to in the rule. Further, the only reason Daniel found it necessary to attempt to obtain the satisfaction of Damian's liability by the MIB was that Damian was uninsured. By riding on an uninsured bike Daniel was clearly acting improperly and without regard to the law. The terms of the MIB's Uninsured Drivers' Agreement are designed to exclude recovery by a claimant in these circumstances. To allow Daniel to avoid a costs liability would only encourage others to think they could pursue the MIB without penalty, however dubious the case happened to be. That is a factor not present in the authorities but is relevant to discretion. In addition, the decision to pursue the MIB was in no way influenced or encouraged by Mr Bell. Before and during the trial, Mr Bell did not join Daniel in his case against the MIB or support his claim or become involved in the issues between Daniel and the MIB in any way. To make a "strong order" (the language in Irvine) against Mr Bell would work injustice against him.
- Mr Kilvington, who presented this part of the case on behalf of Daniel, submits that all relevant matters were taken into account by the judge and there is no basis for interfering with his exercise of discretion, and that in any event that the judge's order was correct. Although Daniel's claim against the MIB failed, there was no finding that the claim was dishonest; and no such inference should be drawn, given that Daniel himself was brain-damaged and unable to give evidence, and his mother did not know whether Daniel had knowledge of Damian's insurance status or not (this was a point made in Mr Kilvington's skeleton argument though not developed orally). Mr Kilvington further submits that the proceedings against the MIB were necessitated by Mr Bell's unreasonable refusal to accept any degree of negligence: had negligence been admitted, a second set of defence costs would have been avoided.
- The MIB lodged a skeleton argument supporting the judge's costs order but did not appear at the hearing of the appeal.
- I am not persuaded that the judge was wrong to order Mr Bell to pay the MIB's recoverable costs. In my view the order fell within the reasonable ambit of the judge's discretion.
- At paragraph 12 of his Note, quoted above, the judge took into account the argument that Daniel had not only lost the claim against the MIB but should not have advanced the claim in the first place. Whilst he did not deal in terms with the allegation that the claim was dishonest, he evidently did not accept the allegation. It is true that in his judgment on liability he rejected the evidence of Daniel's family that Daniel and Damian had not been friends, let alone good friends: as he said at paragraph 8 of the judgment, "Daniel's family and his friends would have wanted to distance Daniel from Damian, and their evidence has to be seen in that light". But he stopped short of any finding of dishonesty against family or friends. Nor do I think that there is anything in the judgment to compel the inference that the claim against the MIB was dishonest or that it was dishonest to maintain the claim after the MIB defence had pleaded in its defence that Daniel "knew or ought to have known that … there was no insurance in respect of the vehicle" with the result that the MIB's obligation to satisfy any judgment against Damian was excluded by clause 6.1(e)(ii) of the Uninsured Drivers' Agreement. The insurance defence was potentially a complex matter, as is apparent from the detailed consideration the judge gave to it at paragraphs 51-52 and 55-62 of his judgment (which it is unnecessary for me to set out); and although the judge cut through the detail by his simple finding that Daniel knew that Damian's use of the bike was uninsured (paragraphs 55 and 62), I do not think that it can safely be concluded that Damian's mother or other members of his family must have been aware of that fact or therefore that they sought dishonestly to advance on Daniel's behalf a claim that they knew to be inconsistent with the insurance defence. Accordingly, I reject the submission that there was dishonest conduct which ought to have resulted in the judge ordering Daniel, rather than Mr Bell, to pay the MIB's recoverable costs.
- The judge rightly went on to consider, in paragraph 13 of his Note, whether it was reasonable for Daniel to sue the MIB as well as Mr Bell. As it seems to me, he was entitled to take the view that this was a reasonable course for Daniel to take, for the reasons he gave. But underlying those reasons was the further point, which the judge had already covered at length and did not repeat in this paragraph, that the MIB's continued involvement in the proceedings was necessitated by Mr Bell's denial of any degree of negligence. Had Mr Bell admitted negligence, the MIB would have dropped out and the second set of defence costs would have been avoided. As the judge had said at paragraph 11, it was just as important for the MIB to prove negligence on the part of Mr Bell as it was for Daniel, and it was unrealistic to expect the MIB to leave the point to Daniel's team. In those circumstances there was a clear issue as between the MIB and Mr Bell, on which Mr Bell lost. This casts further light on why the judge decided that the MIB's costs should be paid by Mr Bell. Taking everything together, I do not think that this "strong order" was an unjust order or that the judge was wrong to make it.
- I would allow the appeal on liability to the extent of increasing the total deduction for Daniel's contributory negligence from 45% to 65%, but I would otherwise dismiss the appeal. I would also dismiss the costs appeal.
- I agree that the appeal should be dismissed for the reasons given by Richards LJ and Christopher Clarke LJ.
- I, also, agree with the judgment of Richards LJ. In particular, I agree that, on the judge's findings, Damian and Daniel were joint participants in the dangerous driving of the bike. Daniel did not simply get on to an ordinary bike designed to accommodate a passenger for the pleasure of being driven around on it. He got onto a trials bike (a type of bike he had ridden before), which was not meant to accommodate a passenger, and which he knew would be driven dangerously and too fast in the manner that trial bikes were being ridden in Carlisle at the time. That must have been part of the fun; and the fact that Damian had Daniel as his passenger must have encouraged Damian to ride in the way in which he did. Daniel's willing participation in the journey could scarcely have been much closer, since he must have had to hold on to Damian, his close friend, in order not to be thrown off, and his presence on the bike affected its stability and the efficiency of its brakes. He did not take advantage of two opportunities to get off even though the bike had been being driven fast and dangerously on a cycle lane.
- In those circumstances, Daniel's claim fails under the ex turpi causa principle. Damian and Daniel were both parties to the serious crime of dangerous driving which was a cause of the injuries that Daniel suffered. Dangerous driving of this nature is sufficient to engage the doctrine.
- Difficult questions may, however, arise in future as to the degree of blameworthiness needed for the doctrine to apply. In Les Laboratoires Servier v Apotex Inc the Supreme Court (a) referred to the earlier rejection by the House of Lords of the "affront to the public conscience" test as unprincipled; (b) rejected a fact based discretionary approach; (c) said that "the paradigm case of an illegal act engaging the defence is a criminal offence"; (d) treated the ex turpi causa principle as being founded on acts which are contrary to the public law of the state and engage the public interest; and (e) recognised that the doctrine might not apply to offences of strict liability where the claimant was not privy to the fact making the act unlawful.
- The reach of modern criminal law into the field of road traffic is, however, extensive. Leaving aside dangerous driving, careless driving is, itself, an offence. Causing death thereby is punishable with imprisonment. There are a number of offences, punishable otherwise than by imprisonment under the Road Traffic Act 1988, including: motor racing on highways (s 12); riding a motorcycle without the required protective headgear (s 16); leaving a vehicle in a dangerous position (s 22); carrying a passenger on a motorcycle contrary to section 23 (s 23); failing to comply with traffic directions given by a constable or traffic officer (s 35) or the indications given by traffic signs (s 36); using a vehicle in a dangerous condition (s 40A); and contravention of a construction and use requirement as to brakes, steering gear or tyres, or use of a motor vehicle which does not comply with such a requirement, or causing or permitting a motor vehicle to be so used (s 41A). Speeding itself is a crime not punishable by imprisonment: Road Traffic Regulation Act 1984 s 89.
- There will be circumstances in which the criminal act in question (e.g. of the driver) is (a) causative of an accident in which a passenger has been injured; and (b) something for which the passenger himself is criminally responsible because he has aided or abetted, counselled or procured it. Is the passenger who encourages the driver to execute a manoeuvre, which it is careless to perform, to be deprived of compensation from the negligent driver when the resulting collision with another car causes him injury?
- In Joyce v O'Brien Elias LJ said at [51] that the doctrine did not apply to "minor traffic offences", whilst recognising that in certain cases there may be a problem in determining whether the offence attracted the application of the doctrine or not. That begs the question as to what is meant by "minor". It may be that the dividing line should be between those offences which are, and those which are not, punishable by imprisonment. Or it may be that the criterion is simply whether the public interest requires the doctrine to apply to a crime of the category in question.
- I also agree that Daniel's turpitude should not disentitle him to any recovery in respect of Mr Bell's negligence. Daniel's injury was caused by the criminally dangerous driving of Damian, in which Daniel participated, and the careless driving of Mr Bell. That participation by Daniel precludes recovery by him from Damian, his partner in crime. But no public interest requires the courts to abstain from affording Daniel any remedy on account of the carelessness of Mr Bell. The basis upon which contributory negligence is assessed, namely by taking account of the relative culpability and causative potency of the negligence in question, provides an acceptable basis for determining what damages properly reflect Mr Bell's culpability and its causative effect. If the position were otherwise, any driver whose road traffic offence constituted turpitude, but who was only partially to blame, would fail to recover from anyone else whose negligence caused the accident. Even if turpitude did not arise unless the offence was punishable with imprisonment, the driver might still fail to recover if, for instance, a relatively modest act of carelessness led to the death of someone – a result which in many cases owes much to chance.
Lord Justice Richards :
Introduction
"1. Some years ago the police in Carlisle were receiving a number of complaints about trials bikes, the sort used in scrambling. They were being ridden dangerously in an area to the west of the city. It was decided to mount a special operation to monitor the extent of such incidents. It was only a month after this operation was discontinued that the accident which gave rise to this claim took place. That was on 31 January 2007. It involved a trials bike which had been stolen or unlawfully taken and was not allowed on normal roads. It was being ridden far too fast on a path reserved for cyclists by a 16 year old boy who did not have a driving licence or insurance. He was carrying a pillion passenger, another 16 year old boy, even though the bike was not designed for passengers. Neither of them were wearing helmets. Both boys were seriously injured in the accident, the boy who was the passenger particularly so. It is he who brings this claim through his mother and litigation friend. His name is Daniel McCracken.
2. The boy who was driving the bike is Damian Smith. He is the first defendant. He has not been represented, and although he was present during the trial, he has taken no active part in it save for giving evidence. Because his riding of the bike was uninsured, and he has no assets of his own to speak of, any judgment which Daniel obtains against Damian will be valueless, and the Motor Insurers' Bureau ('the MIB') has been joined as the second defendant. The third defendant, Darren Bell, was the driver of the minibus which was involved in the accident. Mr Bell disputes that he was negligent in any way. There is no doubt that Damian's riding of the bike was negligent, but the MIB resists the claim against it on the basis that Daniel's participation in Damian's wrongdoing should disentitle him from being compensated for his injuries. At the very least, the MIB argues that Daniel himself was at fault, and that his damages, if any, should be discounted to reflect his own contributory negligence. Agreement has been reached that the reduction in Daniel's damages because of his failure to wear a helmet should be 15%, but the possibility of a significantly greater finding of contributory negligence exists depending on how blameworthy Daniel was (if at all) in allowing himself to be a pillion passenger on the bike. The MIB also resists the claim on the basis that its liability has been excluded because Daniel knew or ought to have known that the bike had been stolen or unlawfully taken and that it was being used without insurance."
i) Damian was liable to Daniel in negligence.ii) As regards the MIB, (a) the defence of ex turpi causa non oritur actio did not succeed in respect of Daniel's claim against Damian or, therefore, against the MIB; (b) the MIB had failed to prove that Daniel knew or ought to have known that the bike had been stolen or unlawfully taken; but (c) the MIB had proved that Daniel knew that the bike was being used without insurance, so that the MIB's liability was excluded by clause 6.1(e)(ii) of the Uninsured Drivers' Agreement under which the MIB had agreed with the Secretary of State to satisfy judgments in respect of injuries caused by uninsured vehicles.
iii) As regards Mr Bell, (a) since the defence of ex turpi causa had been rejected in relation to Damian and the MIB, it was not necessary to consider whether it was available to Mr Bell; (b) Mr Bell had driven negligently; but (c) as to contributory negligence, Daniel's damages should be reduced by 45% (including the agreed 15% for failure to wear a helmet) to reflect his own responsibility for his injuries.
The facts in greater detail
"37. That brings me to whether Damian was simply giving Daniel a lift home at the time, or whether, once Daniel had got on the bike, they were going for a ride together with whatever that entailed. The fact that Damian picked Daniel up some distance from the school, and not all that far from where Daniel lived, is suggestive of the latter, but by no means decisive. But the fact that they met up with people they knew on another bike is much more consistent with them having gone for a ride. That is borne out by the fact that when Damian picked Daniel up, he did not take him straight home. They carried on towards the city centre for a while, before turning back and heading out of the city towards the school. Maybe Damian wanted to show off his driving skills to his friends as they were walking home from school.
38. In addition, Daniel did not get off the bike on either of the two occasions when the bike turned round. It is unsurprising that he did not get off the bike when it turned round for the second time. He was at that stage not far from the school which he had left some 15 minutes previously. But the fact that he did not get off the bike when it turned round the first time suggests that he wanted to stay on it. That does not mean that he wanted to show off to anyone. It could mean that he just enjoyed being a pillion passenger on a trials bike being ridden by a friend of his on the road.
39. The way the bike was being ridden. There was plenty of evidence that the bike was being ridden otherwise than safely. Two people saw it do a 'wheelie' in Wigton Road, admittedly not as it approached the community centre. Hayley Birrell described it as travelling 'really fast'. Joanne Robinson said that it was travelling faster than when it had been coming from the city centre, and that when it had been coming from the city centre it had been going faster than the few cars on Wigton Road. Darren Foster put its speed at 40-50 mph in his first statement, but modified that to 20-30 mph in a later statement, ascribing the difference to the act that his second statement had been made a few years later when he was older. But the most compelling description of the way it was being ridden came from Kelly Ann Mulholland. I have no reason to doubt her evidence. She said that as it came towards her and her friends from the city centre, it was swerving from side to side, albeit not in a dangerous way. She did not think that the people on the bike were trying to scare them or were even showing off. She said that it had been swerving only slightly, and that she had not felt in danger. Despite that, she had been walking quite close to the cycle path, and she had to step out of the way as it passed close to her as she had thought that it might hit her arm. It was still swerving from side to side as it came back.
40. The question inevitably arises whether the bike was racing with the other bike. Both Joanne Robinson and Hayley Birrell got the impression that it was, but Kelly Ann Mulholland thought otherwise. She thought that the green bike was just trying to catch up with the other one, and the probability is, I think, that she was right. They were travelling in tandem, and Damian wanted to keep up with the bike in the road. But I have no doubt that it was completely inappropriate for the bike to have been ridden as fast it was being ridden on a cycle path, especially as the presence of Daniel on it as a passenger must have affected its stability and the efficiency of its brakes. Having said that, there is nothing to suggest that Daniel was encouraging Damian to drive in the way he did. As I have said, he could just have been a pillion passenger going along for the ride. Since there is nothing to suggest otherwise, that is the basis on which I have to proceed, even though he must have known that the bike was likely to be ridden on the road and too fast."
"44. … [Damian's] behaviour had been very much worse than Daniel's. Although Daniel is likely to have known that Damian would be riding the bike in a dangerous manner, he had not been encouraging Damian to do that. He was, as I have said, just going along for the ride ….
…
47. Daniel's criminal act is alleged to have been that he allowed himself to be a pillion passenger on the bike when he knew that the bike was not designed for pillion passengers, that Damian would be riding it without insurance or a valid driving licence, and that Damian was likely to drive the bike in a dangerous manner, perhaps because Damian got a thrill out of that, perhaps because he wanted to show off his driving skills to whoever was on the other bike or others who might be in the vicinity. Daniel, it is said, was prepared to go along with that because he got a kick from being a pillion passenger in those circumstances. But in my opinion, it is difficult to characterise Daniel's decision to allow himself to be a pillion passenger on the bike in those circumstances as being the cause of his injuries. I appreciate, of course, that if he had not been on the bike, he would not have been injured at all, but it was not his presence on the bike which was the cause of his injuries: the cause of his injuries was the way the bike was being ridden by Damian.
48. The MIB contends that this is not the correct analysis. Mr Worthington argued that what Damian and Daniel were engaged in was a joint enterprise whose core feature was driving at speeds which made the driving dangerous. Damian would have had his hands on the controls, but Daniel was a willing participant in it. Even if he was not actively encouraging Damian to go as fast as he did, he was aiding and abetting what Damian was doing just by his presence on the bike …. [The argument was then advanced by reference to the decision in Joyce v O'Brien [2013] EWCA Civ 546, considered below.]
…
50. I cannot go along with that analysis. On the findings I have made, Daniel was not encouraging Damian to ride in the way he did, whether actively or otherwise, for example, by his presence on the bike being intended by Daniel to spur Damian on to take the risks he did. Daniel was, as I have said, just going along for the ride, even though he knew that the bike was likely to be ridden on the road and too fast. If Daniel had been charged with aiding and abetting Damian's dangerous driving, he would, on my findings of fact, have had to be acquitted. His criminal conduct consisted of allowing himself to be a pillion passenger on the bike when he knew that it had not been designed for pillion passengers, and that Damian would be riding it without insurance or a valid driving licence. The fact that he knew that Damian was likely to ride it dangerously did not make him a party to the way Damian in fact rode the bike …. To the extent that Daniel was at fault, that has to be reflected by reducing his damages for his own contributory negligence."
The challenge to the judge's characterisation of Damian's role
"Here was a clandestine ride – commonly called a 'joy-ride' – on a dark night in February, without proper lights, and the two men had taken the car for a purpose, which the jury have found was not felonious, but which had as its object a 'joy-ride' without the knowledge and assent of the owner. Looking at these facts, and at the actual speed of the car and its movements before and after the collision, we think that the jury were entitled to find that both the appellant and [the driver] were responsible for the way in which the car was being driven at the moment of collision."
The facts of that case were of course stronger. In this case there was no joint taking of the bike, albeit it was a stolen bike stored at, and collected by Damian from, Daniel's home; nor did the judge make any finding as to whether Daniel himself was picked up on the bike by prearrangement with Damian. But the principle of joint responsibility is equally applicable and in my view, as already indicated, there is enough in the present facts to justify the inference that both boys were responsible for the way in which the bike was being ridden.
"83. … Unquestionably there was fault on Daniel's part. When he got on the bike, he knew that Damian was likely to drive on the road and too fast. He knew that a pillion passenger was not allowed on the bike, and he knew that Damian was using the bike without insurance or a valid driving licence. Daniel was the author of his own misfortune to a significant extent …."
Clearly, that finding does not sit comfortably with the judge's earlier finding. But in any event, if at the time of the accident Daniel was party to a joint enterprise to ride the bike dangerously, his participation in that joint enterprise must in my view be regarded as a cause of his injuries – a conclusion which fits far better with the judge's view that he was the author of his own misfortune to a significant extent.
Ex turpi causa: the authorities
"The wider and simpler version is that which was applied by Flaux J [at first instance in Gray]: you cannot recover for damage which is the consequence of your own criminal act. In its narrower form, it is that you cannot recover for damage which is the consequence of a sentence imposed upon you for a criminal act."
The justification for the narrower rule was based on the inconsistency of requiring someone to be compensated for a sentence imposed because of his own personal responsibility for a criminal act. As to the wider rule:
"51. … It differs from the narrower version in at least two respects: first, it cannot, as it seems to me, be justified on the grounds of inconsistency in the same way as the narrower rule. Instead, the wider rule has to be justified on the ground that it is offensive to public notions of the fair distribution of resources that a claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct. Secondly, the wider rule may raise problems of causation which cannot arise in connection with the narrower rule. The sentence of the court is plainly a consequence of the criminality for which the claimant was responsible. But other forms of damage may give rise to questions about whether they can properly be said to have been caused by his criminal conduct.
52. The wider principle was applied by the Court of Appeal in Vellino v Chief Constable of Greater Manchester Police [2002] 1 WLR 218. The claimant was injured in consequence of jumping from a second-floor window to escape from the custody of the police. He sued the police for damages, claiming that they had not taken reasonable care to prevent him from escaping. Attempting to escape from lawful custody is a criminal offence. The Court of Appeal (Schiemann LJ and Sir Murray Stuart-Smith; Sedley LJ dissenting) held that, assuming the police to have been negligent recovery was precluded because the injury was the consequence of the plaintiff's unlawful act.
53. This decision seems to me based upon sound common sense. The question, as suggested in the dissenting judgment of Sedley LJ, is how the case should be distinguished from one in which the injury is a consequence of the plaintiff's unlawful act only in the sense that it would not have happened if he had not been committing an unlawful act. An extreme example would be the car which is damaged while unlawfully parked. Sir Murray Stuart-Smith, at para 70, described the distinction:
'The operation of the principle arises where the claimant's claim is founded upon his own criminal or immoral act. The facts which give rise to the claim must be inextricably linked with the criminal activity. It is not sufficient if the criminal activity merely gives occasion for tortious conduct of the defendant.'
54. This distinction, between causing something and merely providing the occasion for someone else to cause something, is one with which we are very familiar in the law of torts. It is the same principle by which the law normally holds that even though damage would not have occurred but for a tortious act, the defendant is not liable if the immediate cause was the deliberate act of another individual. Examples of cases falling on one side of the line or the other are given in the judgment of Judge LJ in Cross v Kirby [2000] CA Transcript No 321. It was Judge LJ, at para 103, who formulated the test of 'inextricably linked' which was afterward adopted by Sir Murray Stuart-Smith in Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218. Other expressions which he approved, at paras 100 and 104, were 'an integral part or a necessarily direct consequence' of the unlawful act (Rougier J: Revell v Newbery [1996] QB 567, 571) and 'arises directly ex turpi causa: Bingham LJ in Saunders v Edwards [1987] 1 WLR 1116, 1134. It might be better to avoid metaphors like 'inextricably linked' or 'integral part' and to treat the question simply as one of causation. Can one say that, although the damage would not have happened but for the tortious act of the defendant, it was caused by the criminal act of the claimant? (Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218). Or is the position that although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant? (Revill v Newbery [1996] QB 567)."
"The issue here is whether the plaintiff in a personal injury claim for damages for negligence is debarred from making any recovery where he was a trespasser and engaged in criminal activities when the injury was suffered. Any broad test of causation is satisfied almost by definition in such a case, because he would not have sustained the injury caused by the defendant unless he had been where he was and acting as he was at the relevant time.
These are the factors of fault and responsibility which are taken into account when assessing the issue of contributory negligence pursuant to section 1 of the Law Reform (Contributory Negligence) Act 1945 ….."
That last passage was a reference to the trial judge's apportionment of responsibility between the claimant and the defendant in the ratio two-thirds to one-third, which was not challenged on the appeal.
"37. … Here the crucial question is whether, on the one hand the criminal activity merely gave occasion for the tortious act of the first defendant to be committed or whether, even though the accident would never have happened had they not made the journey which at some point involved their obtaining and/or transporting drugs with the intention to supply or on the other hand whether the immediate cause of the claimant's damage was the negligent driving. The answer to that question is in my judgment quite clear. Viewed as a matter of causation, the damage suffered by the claimant was not caused by his or her criminal activity. It was caused by the tortious act of the first defendant in the negligent way in which he drove his motor car. In those circumstances the illegal acts are incidental and the claimant is entitled to recover his loss."
"5. The concept applies generally when a claimant is injured whilst committing a criminal offence We are concerned in this case with its application in one particular context, namely where one criminal is injured by the negligence of another when they are both engaged in a criminal enterprise. The authorities demonstrate that whilst it is widely recognised that the ex turpi principle will often apply to deny the claimant the right to damages in such cases, the jurisprudential basis for reaching that conclusion is a matter of some dispute. I will first consider the principles which have been developed in the context of injuries incurred in the course of joint criminal enterprises, then focus on the distinct principles which apply where the criminal is injured by a third party unconnected to the criminal activity, and then suggest how the two strands of authority may be integrated."
"If, in a particular case, it were to be shown that a probable consequence of commission of an offence of taking or using a vehicle illegally was the commission of other driving offences (including reckless or dangerous driving) those who were complicit in the initial offence would be criminally liable for the subsequent offences as well. More particularly, if, as here, the driver of the illegally used vehicle drove dangerously, and driving in that manner was a probable consequence of the prosecution of the joint illegal purpose, a person complicit in the crime of illegal use would also be complicit in the offence of driving dangerously. And if, as a result of the dangerous driving, the complicit passenger were injured, it would evidently be incongruous to decide that the offender who drove the vehicle owed that passenger a duty to drive with reasonable care. The passenger would have committed the offence of dangerous driving and yet, if the driver owed the passenger a duty to take reasonable care, the passenger (who would be criminally responsible for the driver's dangerous driving) might sue the driver for damages for driving negligently."
"21. The principle developed in these joint enterprise cases can be seen as merely one specific application of a wider principle that a man cannot recover compensation where his cause of action is based on his own criminal or immoral act. However, the test for determining liability in those circumstances has focused on causation rather than on considerations of whether a duty of care can properly be said to exist."
"27. Accordingly, the same causation principle should apply whether the criminal is acting alone or as part of a joint enterprise. But this does not in my opinion mean that the established jurisprudence on joint enterprise cases is of no continuing relevance. The material additional feature in such a claim is that the claimant may be denied recovery not merely where the injury results directly from his own criminal conduct, but also where it results from the action of a joint participator carried on in furtherance of the joint enterprise. In certain cases the injury will still be treated as having been caused by the claimant even though the direct cause of the injury was his co-defendant.
28. In my judgment, in the application of the causation principle developed in Gray v Thames Trains Ltd [2009] AC 1339, the courts should recognise the wider public policy considerations which have led them to deny liability in joint enterprise cases. This is compatible with Lord Hoffmann's approach. The earlier authorities provide valuable assistance in answering the question whether the claimant's injury will be treated as having been caused by his own conduct notwithstanding that the immediate cause was the act of a partner in crime. They reflect what seems to me to be the underlying policy even if the rationale for denying liability must now be cast in terms of causation rather than duty. In my view the injury will be caused by, rather than occasioned by, the criminal activity of the claimant where the joint criminal illegality affects the standard of care which the claimant is reasonably entitled to expect from his partner in crime. This is consistent with the result of Ashton v Turner [1981] QB 137 and Pitts v Hunt [1991] 1 QB 24, but it focuses on causation rather than duty.
29. I would formulate the principle as follows: where the character of the joint criminal enterprise is such that it is foreseeable that a party or parties may be subject to unusual or increased risks of harm as a consequence of the activities of the parties in pursuance of their criminal objectives, and the risk materialises, the injury can properly be said to be caused by the criminal act of the claimant even if it results from the negligent or intentional act of another party to the illegal enterprise. I do not suggest that this necessarily exhausts situations where the ex turpi principle applies in joint enterprise cases, but I would expect it to cater for the overwhelming majority of cases …."
"51. Given that the doctrine is one of public policy, I would accept that there should indeed be some flexibility in its operation. The doctrine will not apply, for example, to minor traffic offences. I suspect that in most joint criminal liability cases at least, the nature and characteristics of the principal offence will in practice determine which acts of a co-conspirator will attract the application of the ex turpi doctrine, and for relatively trivial offences the range of such acts is likely to be very limited. None the less, I recognise that there may be a problem in determining in certain cases whether the offence attracts the application of the doctrine or not.
52. However, in my view, wherever the precise line is to be drawn, the theft of these ladders would fall clearly on the side where the doctrine applies. It is not merely an imprisonable offence but carries a seven-year maximum sentence; it is not a strict liability offence which may be committed without any real moral culpability …."
"22. However, it does not follow that the courts should be insensitive to the draconian consequences which the ex turpi causa principle can have if it is applied too widely. The starting point in any review of the modern law must be that we are concerned with a principle based on the application of general rules of law and not on fact-based evaluations of the effect of applying them in each individual case. However, the content of the rules must recognise that within the vast and disparate category of cases where a party in some sense founds his claim on an immoral or illegal act there are important differences of principle. The application of the ex turpi causa principle commonly raises three questions: (i) what acts constitute turpitude for the purposes of the defence? (ii) what relationship must the turpitude have to the claim? (iii) on what principles should the turpitude of an agent be attributed to his principal, especially when the principal is a corporation? Each of these questions requires a principled distinction to be made between different kinds of immoral or illegal acts and different ways in which they may give rise to claims. For present purposes, we are concerned only with the question what constitutes turpitude for the purposes of the defence …."
"23. The paradigm case of an illegal act engaging the defence is a criminal offence. So much so, that much modern judicial analysis deals with the question as if nothing else was relevant. Yet in his famous statement of principle in Holman v Johnson 1 Cowp 341 Lord Mansfield CJ spoke not only of criminal acts but of 'immoral or illegal' ones. What did he mean by this? I think that what he meant is clear from the characteristics of the rule as he described it, and as judges have always applied it. He meant acts which engage the interests of the state or, as we would put it today, the public interest. The illegality defence, where it arises, arises in the public interest, irrespective of the interests or rights of the parities. It is because the public has its own interest in conduct giving rise to the illegality defence that the judge may be bound to take the point of his own motion, contrary to the ordinary principles of adversarial litigation. In some contexts, notably the invalidity of contracts prohibited by law, the ex turpi causa principle can be analysed as part of the substantive law governing the parties' rights. The contract is void, and any right derived from it is non-existent. But in general, although described as a defence, it is in reality a rule of judicial abstention. It means that rather than regulating the consequences of an illegal act (for example by restoring the parties to the status quo ante, in the same way as on the rescission of a contract) the courts withhold judicial remedies, leaving the loss to lie where it falls. This is so even in a contractual context, when the court is invited to determine the financial consequence of a contract's voidness for illegality. The ex turpi causa principle precludes the judge from performing his ordinary adjudicative function in a case where that would lend the authority of the state to the enforcement of an illegal transaction or to the determination of the legal consequences of an illegal act.
…
25. The ex turpi causa principle is concerned with claims founded on acts which are contrary to the public law of the state and engage the public interest. The paradigm case is, as I have said, a criminal act. In addition, it is concerned with a limited category of acts which, while not necessarily criminal, can conveniently be described as 'quasi-criminal' because they engage the public interest in the same way ….
…
29. It is right to add that there may be exceptional cases where even criminal and quasi-criminal acts will not constitute turpitude for the purposes of the illegality defence. In Gray v Thames Trains Ltd [2009] AC 1339, para 83, Lord Rodger of Earlsferry suggested that some offences might be too trivial to engage the defence. In general, however, the exceptional cases are implicit in the rule itself. This applies in particular where the act in question was not in reality the claimant's at all. Leaving aside questions of attribution which arise where an agent is involved, and which are no part of the present appeal, there is a recognised exception to the category of turpitudinous acts for cases of strict liability, generally arising under statute, where the claimant was not privy to the fact making his act unlawful: see Stone & Rolls Ltd v Moore Stephens [2009] AC 1391, paras 24, 27 (Lord Phillips of Worth Matravers). In such cases, the fact that liability is strict and that the claimant was not aware of the facts making his conduct unlawful may provide a reason for holding that it is not turpitude at all …. The application of the exception for cases of strict liability may require a court to determine whether the claimant was in fact privy to the illegality. To that extent, an inquiry into the claimant's moral culpability may be necessary in such cases before his act can be characterised in law as 'turpitude'. This may be a difficult question, but it is not a question of degree. The conclusion will be a finding that the claimant was aware of the illegality or that he was not. It is a long way from the kind of value judgment implicit in the search for a proportionate relationship between the illegality and its legal consequences of the claim."
Ex turpi causa: the application of the principles to the facts of this case
"where the character of the joint criminal enterprise is such that it is foreseeable that a party or parties may be subject to unusual or increased risks of harm as a consequence of the activities of the parties in pursuance of their criminal objectives, and the risk materialises, the injury can properly be said to be caused by the criminal act of the claimant even if it results from the negligent or intentional act or another party to the illegal enterprise."
The issue of Mr Bell's negligence
"69. There is one other aspect of Mr Bell's evidence I should mention. In his witness statement, he said that once the two trials bikes had passed him, he had dismissed them from his thoughts: they had not appeared to be slowing down or about to turn, so he had not considered them to be a hazard. However, in a statement he gave to the police on 10 April 2007, he said that when he had been turning into the community centre the bikes had still been in the back of his mind. Since Mr Bell had seen them travelling fast on the cycle path or the footpath, he should therefore be treated as having been alive at least to the possibility that one or both of them might have turned round and might have been speeding back towards the city on the cycle path or the footpath. It goes without saying that in the normal course of events, it may not have occurred to someone turning right into the community centre from Wigton Road that a trials bike might come fast towards the city centre on either the cycle path or the footpath on the same side of the road as the community centre. In such circumstances, there would have been no need for such a driver to take special precautions to guard against that risk …. But the fact that Mr Bell had already seen the bike on which Damian and Daniel had been on what we know from the evidence of the three schoolgirls was the cycle path, as well as the other bike, means that their possible presence on the cycle path was something which he should have been alive to (and on the basis of what he had told the police was something to which he had in fact been alive to), especially as so many of the locals (including him, he was to admit) knew that trials bikes were being driven dangerously in the area.
70. So the question is whether the bike which Damian and
Daniel were on was there to be seen or heard by someone who was alive to the possibility that the bike might be coming back towards the city centre on the cycle path …."
"82. … The bike had been there to be seen, and Mr Bell was negligent in having failed to check that either of the bikes were on the cycle path or the footpath, bearing in mind that he should have been alive to the possibility that one or other or both of them might have turned round and been returning to the city centre on the cycle path or the footpath."
The issue of contributory negligence
"83. As I have said, prior to the beginning of the trial, the parties agreed that Daniel's failure to wear a helmet should result in his damages being reduced by 15%. The question is whether his damages should be further reduced because of his fault in allowing himself to be a pillion passenger on the bike. Unquestionably there was fault on Daniel's part. When he got on the bike, he knew that Damian was likely to drive on the road and too fast. He knew that a pillion passenger was not allowed on the bike, and he knew that Damian was using the bike without insurance or a valid driving licence. Daniel was the author of his own misfortune to a significant extent. The extent of it is not susceptible to much analysis. It is for the most part a matter of impression based on an assessment of Daniel's blameworthiness and one's experience of previous cases. In my opinion, the extent to which Daniel's damages should be discounted to reflect his own responsibility for his injuries (including his failure to wear a helmet) is 45%."
"35. … In the absence of an identifiable error, such as an error of law, or the taking into account of an irrelevant matter, or the failure to take account of a relevant matter, it is only a difference of view as to the apportionment of responsibility which exceeds the ambit of reasonable disagreement that warrants the conclusion that the court below has gone wrong. In other words, in the absence of an identifiable error, the court must be satisfied that the apportionment made by the court below was not one which was reasonably open to it."
"44. The view that parties are equally responsible for the damage suffered by the pursuer is substantially different from the view that one party is much more responsible than the other. Such a wide difference of view exceeds the ambit of reasonable disagreement, and warrants the conclusion that the court below has gone wrong …"
The court therefore allowed the appeal and made a deduction of 50% in the damages awarded to the pursuer, rather than the 70% ordered by the court below (which had itself been a variant of the 90% ordered by the judge at first instance).
The costs appeal
"12. I turn, then, to who should pay the MIB's costs – Daniel or Mr Bell. There is much to be said in favour of requiring Daniel to pay at least some of the MIB's costs, since Daniel lost his claim against the MIB. Indeed, he did so, argued Mr Grime, on a basis which suggested that the members of his family who gave evidence minimised his contact with Damian, his experience of trial bikes and his use of trial bikes on the road. So if Daniel was relieved of having to pay any of the MIB's costs when his litigation friend ought to have realised that the claim against the MIB could well fail, it would send out the wholly inappropriate message that you could join the MIB as a defendant in the action without having to worry about having to pay the MIB's costs if someone else is found to be negligent.
13. I see the force of that, but there is another side to the coin. Daniel may have failed against the MIB, but he succeeded in the action, and the real question is whether it was reasonable for him to sue the MIB as well as Mr Bell. I think it was. There was always the possibility that Mr Bell would be held not to have been negligent, and it would have been unrealistic for Daniel to have sued only Mr Bell when Damian was obviously the more negligent, provided, of course, that there was a realistic chance that Daniel could rebut both the defence of ex turpi causa and the defence on which the MIB succeeded, even if the members of his family had given evidence along the lines of what I found had been the case. In my opinion, there was a realistic chance of that, and in the circumstances I do not think that Daniel should end up having to pay the MIB's costs. Whatever the doctrinal justification for making a Bullock order rather than a Sanderson order may be, it is easier for the parties to comply with a Sanderson order. I therefore order Mr Bell to pay to MIB 90% of its costs …."
"22. There is no doubt that the jurisdiction to make a Bullock or Sanderson order has survived the introduction of the CPR, though the exercise of discretion to make such an order must be guided by the overriding objective and the specific provisions of Rule 44.3 [now rule 44.2]. The jurisdiction is a useful one. It is designed to avoid the injustice that when a claimant does not know which of two or more defendants should be sued for a wrong done to the claimant, he can join those whom it is reasonable to join and avoid having what he recovers in damages from the unsuccessful defendant eroded or eliminated by the order for costs against the claimant in respect of his action against the successful defendant or defendants. However, it must also be recognised that it is a strong order, capable of working injustice to the defendant against whom the claim has succeeded, to be made liable not only for the claimant's costs of the action against that defendant, but also the costs of the other defendants whom the claimant has chosen to join but against whom the claimant has failed.
23. The court has a wide discretion over costs, and even where a claimant reasonably brings proceedings against two separate defendants and succeeds against one and fails against the other, there is no rule of law compelling the court to make a Bullock or Sanderson order (see Hong v A&R Brown Ltd [1948] 1 KB 515). That case demonstrates that the court must also consider whether it would work injustice on an unsuccessful defendant to make him liable for the costs of another defendant against whom the claimant has failed.
24. The circumstances in which the court makes an order are stated in the White Book 2004, paragraph 44.3.8 as follows: 'Where a claimant sues two defendants in the alternative and succeeds against only one, the court has a discretion to order the unsuccessful defendant to pay the successful defendant's costs'.
…
26. Such is the width of the language of Rule 44.3(1) [now rule 44.2(1)] that I do not suggest that the court has no power to order one defendant to pay the costs of another defendant, even when the claims are not in the alternative. But that is not the ordinary circumstances for a Bullock or Sanderson order ….
27. A further factor in determining whether a Bullock or Sanderson order is appropriate is whether the causes of action relied on against the defendants are connected with each other ….
30. An important consideration which the court should have in mind when exercising the discretion whether to make a Bullock or Sanderson order is the reasonableness of the claimant's conduct in joining and pursuing a claim against the defendant against whom the claimant did not succeed …."
Conclusions
Lord Justice Underhill :
Lord Justice Christopher Clarke :