England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/05/2012

MR JUSTICE COOKE:

Introduction

1. It is common ground that, at about 13:25 hours on Tuesday the 21^st April 2009, the claimant, then 20 years old, was holding onto the back of a Ford Transit van that was being driven along small side streets in suburban Addiscombe (on the outskirts of Croydon) when he fell off, as the van negotiated a sharp left turn at a road junction. The owner and driver of the van was the claimant's uncle, the first defendant, who was in his 30's, for whom the claimant would, from time to time, work in gardening/labouring.
2. The claimant was severely injured and did not give evidence, stating that he had no recollection of the circumstances immediately giving rise to the accident. His case is that he was standing on the rear of the vehicle (possibly the step or bumper) when he lost his grip or footing and was thrown to the ground with the result that he suffered a severe head injury. The accident was caused, on his case, by the negligence of the first defendant, constituted by driving at an excessive speed, driving when the claimant was not safely positioned either on or in the vehicle, failing to keep a proper look out and failing to stop or slow down so as to avoid the accident.
3. On the 20^th August 2010 at the Croydon Crown Court, the first defendant pleaded guilty to a charge of dangerous driving on the basis that he knew that his nephew was on the back of the van, that he only drove for a short distance for about 20 seconds and, although he was not driving over the speed limit of 30 mph, he was travelling too fast for the relevant road. He accepted that it was serious misjudgement to drive with his nephew on the back.
4. The first defendant played no part in the action but the second defendant, his motor insurers, defend the claim on the basis that, although the first defendant admittedly drove carelessly, he is not liable to the claimant because the two of them were, at the time, engaged in a common criminal enterprise. In the circumstances the first defendant owed no duty of care to the claimant and/or the first defendant was entitled to rely upon the legal doctrine of "ex turpi causa non oritur actio".
5. The insurers' case is that the claimant and first defendant had together stolen extending ladders from the front garden of number 17 Coniston Road, Addiscombe and were making their getaway when the accident occurred. The insurers say that the claimant and/or the first defendant had placed the ladders in the back of the van but because of their length, they could not fit inside it with the doors closed. They protruded out of the back, with the right hand door open. In consequence the first defendant stood on the rear foot plate, holding onto the back of the van by the closed left hand door or the roof, with the ladders held under or over his right arm whilst the right hand door flapped as the van travelled down the road.
6. The van had to make a sharp right hand turn towards the end of Coniston Road and then, on meeting the T-junction ahead, a sharp left hand turn into Addiscombe Avenue. It was at a point some 15 to 25 yards from the junction that the claimant fell off in Addiscombe Avenue, sustaining a severe head injury. It was the insurers' case that the first defendant, after initially stopping, drove his van some 150 yards on to the other end of Addiscombe Avenue, parking on the right hand side there before removing the ladders from the back of the van and concealing them in an alleyway which runs off from the other side of the road, where they were to be subsequently found. He then returned to the scene of the accident.

The Evidence

7. As I have already said, neither the claimant nor the first defendant gave evidence. The first defendant gave a series of wholly inconsistent versions of events to the emergency services, to Mr O'Hare, to a paramedic and to the police, as overheard by Mr North. He answered "no comment" to all questions in police interview but served a defence statement which, it is common ground, was not true. At various times, he said that he did not know that his nephew was hanging onto the rear of the vehicle by the doors or the ladders, that his nephew had clambered through the back of the vehicle from the front passenger seat to secure doors which had come open, that his nephew was riding on the footplate as a "joke" and that his nephew had got out of the van when stationary to secure the doors and was, as far as he was concerned, not on or in the van at all at the relevant time. In the circumstances it is understandable that no one wished to call him as a witness nor rely upon his evidence.
8. The statement of a paramedic at the scene was read in which she referred to the first defendant telling her that his Transit van was parked at the far end of the road, saying he had moved it to prevent the road being blocked. She found this strange as the road was blocked behind the claimant by the car of the following driver, Mr O' Hare, who had deliberately put his car in such a position with that object in mind. The first defendant's own explanation to the police for moving the car was his supposed need to identify the name of the road in order to call the emergency services, but since the road name appeared at the junction 15-20 yards in the opposite direction, this explanation was scarcely cogent.
9. The first defendant explained to the paramedic that his nephew had been standing on the back step of the van for a laugh and had told him to drive on, foot down. He said that his nephew had fallen off, but he thought he was playing a joke, a matter he repeated several times. She said in her statement that in all her experience as a paramedic, she had never known anyone involved in an accident to drive off to park his vehicle, whilst leaving an injured person in the road.
10. The evidence of Mr O'Hare, a local estate agent who knew the area extremely well and had driven along the relevant roads every day of his working life for some 24 years, was clear and compelling. He was driving along Coniston Road on his way back to the office when he first became conscious of the first defendant's van "driving unnaturally fast" in front of him. He himself was driving at 25 to 30 miles an hour which he regarded as top speed for narrow roads with cars parked on both sides, in the vicinity of a school, where there was the potential for individuals to cross behind parked cars. He first became conscious of the van somewhere between numbers 36 and 45 Coniston Road (a matter perhaps of some significance in the context of an alleged theft from number 17). He saw the claimant hanging on to the back of the van with some difficulty. The ladder was under or over his right arm whilst he hung onto the door or roof with his left hand, with the door flapping. The combination of the speed and the fact that the man was hanging on the back of the van was to his mind obviously dangerous and extremely stupid. He described it at the trial as reckless.
11. As the van went round the right hand bend in Coniston Road, it did not slow down as he would have expected, particularly given the downhill incline. The position of the claimant on the back became more unstable and precarious. There was only 30 metres or so to the T junction with Addiscombe Avenue where the van had to turn either left or right and Mr O'Hare's view was that an accident was bound to happen as the van did not appear to slow down in any way. He was some 8 metres behind it. He could see that the claimant was losing his balance at the right hand bend and sensed that there was no way he could recover his hold and position and was therefore bound to fall off as the van turned sharp left. He could not say how fast the van was travelling as he took the bend but it was, in his judgment, "way too fast for the road and conditions". This was "an accident waiting to happen" in his view. He considered the driving to be dangerous on the straight stretch of Coniston Road and increasingly so on the bend of it and at the left turn at the T-junction into Addiscombe Avenue.
12. He stopped immediately behind the fallen man in the road. He immediately went to help the man who was plainly seriously injured with blood pouring from his head. Mr O'Hare telephoned 999 at 13:25 hours and 48 seconds and gave details as to what had happened. Mr O'Hare placed his mobile on the ground with the loud speaker on so that he could assist the claimant, with the benefit of instructions from the emergency services. In informing the emergency services as to what had happened, he said this:

"He was on the back of a van holding a ladder and as it swang round, they were going a little bit fast and he just smacked against the back of the car, you know real amateurish bit of you know builder… "

13. Mr O'Hare's evidence was that the first defendant had stopped the van in the middle of the road about 20 feet down from the accident but, after coming back for a bit, said something to the effect that he was going off to park the vehicle and drove off before coming back for a second time to the location of the accident about 5 minutes later, when he noisily engaged in a telephone conversation, which interfered with the receipt of instructions by Mr O'Hare from the emergency services. He could not make out what the first defendant was saying. The transcript of the emergency calls reveals that, as Mr O' Hare was assisting the claimant, the first defendant was talking in the background, some two or three minutes into the call and that the first defendant had begun his own emergency call from somewhere near Everton Road (which he spelt out to the emergency services) at about 13:26, continuing as he returned to the scene.
14. Although he found it difficult to understand what he was saying, Mr O'Hare recalled that the driver told him that he did not know that the injured man was on the back of the van and had thought that he was walking beside it. He subsequently heard the first defendant tell the police that the man lying in the road had been a passenger in the van and that he had gone through the van to close the back doors. Both versions of events were completely at odds with what he himself had seen, which was a man seeking to hold onto the ladders to keep the ladders in the van, with the door open, whilst the ladder protruded from the back at about the height of his chest or shoulders.
15. By pleading to the charge of dangerous driving, the first defendant accepted that he had been driving far below the standard to be expected of an ordinary careful driver. On the evidence, it is clear that the first defendant was driving too fast throughout the time when he was being observed by Mr O'Hare. Nonetheless, Mr O'Hare's evidence was that he was following closely behind and was never more than 5 to 8 metres away making use, as he put it, of "his knowledge of the road". Whilst the first defendant's driving was too fast for the conditions, it is not clear that he was ever breaking the speed limit. When pressed as to the speed at which the van took the left hand turn into Addiscombe Avenue, Mr O'Hare suggested 30 miles an hour on the basis that the vehicle had never slowed. That estimate may be a slight exaggeration, given that he was close behind and was, on his own evidence, travelling at 25 to 30 miles an hour. When consideration is given to the particulars of negligence pleaded by the claimant, it is clear that the "recklessness" to which Mr O'Hare referred, consists of driving at a speed which was too fast for the road but which would not have led to any problems at all but for the fact that there was a man standing on the footplate clinging on to the back with one hand, whilst trying to prevent ladders falling out of the open swinging door. Self-evidently, the manner of transporting the claimant and the ladder was inherently dangerous and travelling round corners at any speed created a substantial risk of an accident of the kind which occurred.
16. As is plain, once the first defendant's self serving denials are seen for what they are in the light of his plea, the first defendant was well aware of what the claimant was doing. He should simply not have been driving the van at all with the claimant in that position let alone at a speed of around 30 miles an hour on these cluttered roads in a built up area. The key element of negligent driving is therefore "driving the vehicle when the claimant was not safely positioned either on or in the vehicle", combined with excessive speed and a failure to slow down when taking the right hand bend and subsequent left hand turn.
17. The obvious question to be asked is why the claimant was in the position that he was when the accident occurred. I heard evidence from Mr Raymond Armstrong and his son Benedict who at the time were living at number 17 Coniston Road. The evidence establishes that, at lunchtime that day, a set of extendable Youngmans aluminium ladders, belonging to Mr Armstrong Senior, were left by his son, leaning against the front of the house, whilst he went off to obtain further supplies for the decorating of the house which he was carrying out that day. Whilst the son was away and Mr Armstrong Senior was in the house, on the telephone to a utility company on what was likely to be a free phone call, the ladders were stolen. The call was, as Mr Armstrong Senior remembered it, an extended one, involving waiting in a queue, with the result that he did not answer the door when there were two knocks on it. It was about 10 to 15 minutes later that he came out, curious to see whether it was the usual purveyors of plastics or religion who had knocked, to find that the ladders had disappeared.
18. The evidence of his son was that he was gone for about 40 minutes. Upon his return, he assumed that his father had taken the ladders indoors, only to be told that they had been stolen. The exact timing of this is uncertain, save that it was about lunch time. The telephone records obtained by Mr Armstrong Senior do not assist since they shown only chargeable calls and he had no recollection of any of the conversations listed by British Telecom, including one at 13:33 to his son. His son had no recollection of that either but said that, on his way back from the shop, there was a helicopter in the air, the road was blocked and an ambulance was present, all of which he reported to his father. They made no link at the time between the disappearance of the ladders and this incident.
19. It was over a year later that the Armstrongs were approached by the second defendant's representatives who were making inquiries about the stolen ladders so that it is not surprising that neither of the Armstrongs had any more detailed recollection of the timing. In due course they were shown photographs of ladders which were found in an alleyway some 150 yards or so from the scene of the accident which were of the same make as those which belonged to Mr Armstrong Senior. Whilst neither could be sure that the ladders in question were the same as those which had been stolen, Mr Armstrong Senior was confident about the position. They "resonated" as his ladders and looked right in every respect. They were of the right dimensions, being substantial heavy duty ladders of a semi industrial robust type. They had comfortable treads on the rungs with a fairly flattish top to the rungs. They were of the right make and age, as confirmed by his inquiries of the manufacturers, since he had bought these ladders from a neighbour whose husband had recently died but had been previously involved in the decorating business.
20. The evidence of Mr Kevin Everett was that, on the day of the accident, before he was aware that an accident had occurred, he was at home at number 10 Addiscombe Avenue, which was five doors away from an alleyway on his side of the road which led down behind the houses which fronted Everton Road. He saw a large white Transit van travelling at speed past his house toward Everton Road. The noise of the van skidding to a stop brought him to the front window from which he saw the van pull in on the opposite side of the road, some four or five houses down, opposite the alleyway. The driver descended from the van "like a cheetah", pulled ladders from the top or rear of the van and, with the skill of someone used to handling ladders, virtually ran with them, in an upright position, to the alleyway, disappearing for a moment and then reappearing without them, and going back to the van. He was acting as if he wanted to get rid of the ladders. Mr Everett was suspicious of this behaviour.
21. 10 minutes later, he left the house to take his dog for a walk. The van was still there, and he saw, to his right down the road the melee of people following the accident. He walked the other way to see what the driver of the van had done with the ladder and saw it lying on the ground in the alleyway. As he came back down the road from the other end, walking the dog, he saw the police at the scene and was allowed to pass through the cordon on saying where he lived. He did not say anything to the police about the ladders because he did not know what was going on, had other things on his mind and did not want to get involved with interviews at the police station. Though it was suggested in cross examination that he had not seen what he said he did, I accept his evidence of what it was that he saw of the ladders and their abandonment in the alleyway.
22. Mr Kerol Wright lived at number 10 Everton Road on the corner with Addiscombe Avenue. The alleyway ran behind his house and garage. He would inspect the alley from time to time, as people dumped things there. He came across the ladders there, and, thinking that they might have been stolen from the local Hire shop in Lower Addiscombe Road, went there and spoke to Mr North about his find.
23. Mr North had reason to link these ladders with the accident because, on the day in question, he had not only seen the white van pass by his shop in the morning (with no ladder protruding), but, on observing an air ambulance in the area, had walked down Everton Road and into Addiscombe Avenue where he saw the white van parked in the location described by Mr Everett in his evidence, with a police officer standing by it. He walked down to the scene of the accident where he heard the driver tell the police that the back doors of the van had come open, that the claimant had climbed from the front of the van, through to the back and had fallen out. He then spoke to Mr O' Hare whom he knew and Mr O' Hare told him how the accident had actually occurred with the claimant holding on to the ladders and falling off.
24. Mr North's evidence was that it was on the 22^nd April 2009 that Mr Wright had come into his shop to inform him of his discovery of the ladders in the alley the night before. He then went round to inspect the ladders and ascertained that they did not belong to his business. It occurred to him at once that, because of the location in which they were found, they might be connected to the accident which had occurred the previous day, so he reported the matter to the police.
25. The police made arrangements to collect the ladders and to take photographs of them, which were later shown to the Armstrongs, since by the time that they had been traced by the second defendants, long after the first defendant had pleaded guilty to dangerous driving, the ladders had been disposed of.

Findings of Fact

26. I am conscious of the need, when serious allegations are made of criminal activity, in the course of civil proceedings to proceed with care in applying the civil standard of proof and to be assiduous in requiring cogent evidence, in accordance with the principles enunciated in Hornal v Neuberger Products [1957] 1 QB 247 and H (Minors), Re [1996] AC 563. The evidence here of theft is circumstantial, but to my mind the inference is overwhelming. There is no doubt that the ladders were stolen from the Armstrongs' front garden at 17 Coniston Road. Mr O'Hare first noticed the first defendants' white van with ladders protruding in the grasp of the claimant outside number 35 or thereabouts, having turned into Coniston Road from Blackhorse Lane. The evidence is clear that the first defendant proceeded to dispose of those ladders in the alleyway, immediately following the accident, leaving his seriously injured nephew in the road to do so, before making an emergency call and returning to the scene.
27. I find that the ladders found in the alleyway were those that belonged to Mr Armstrong and had been stolen from 17 Coniston Road. Whilst particular ladders may not readily be identifiable, particularly from photographs, Mr Armstrong Senior was confident about the position, though his son was less so, but the coincidences of timing and location, together with the evidence of the actions of the claimant and the first defendant leave no room for doubt. The ladders were of the right make, matched those of Mr Armstrong in all respects and were plainly stolen and disposed of. The inference is plain.
28. There is only one good reason for the claimant's own actions in standing on the back of a Transit van, holding on to unsecured projecting ladders, with only one hand free to hold on to the van, whilst the van travelled at greater speed than anyone would think sensible around corners. There is only one good reason for the first defendant's conduct in driving away from the scene and disposing of the ladders in the alleyway, following what was plainly a serious accident to his nephew. There had been a theft of the ladders from number 17, the two were seeking to make a speedy getaway with the ladders, without taking time to secure them in the van (or to secure the door) in the manner in which objects protruding from a van are often, however dangerously, secured with rope. The first defendant then hastily disposed of the stolen property following the accident. The first defendant's lies about the position of his nephew inside or outside the van all point to the same conclusion.
29. It was suggested that I could not be sure of the claimant's involvement in the theft. It could be, it was said, that he was duped by his uncle into thinking that there was authority to remove the ladders from 17 Coniston Road. That, to my mind is fanciful, given the knocking on the door, the taking of the ladders, the failure to secure them or the door and the claimant's part in holding on to the ladders whilst standing on the rear step, with the first defendant driving off at speed. I am entirely satisfied that this was a theft in which each of the claimant and first defendant played their part. It was, in criminal parlance a joint enterprise.

The effect in law of the findings of fact.

30. There are, in the light of the authorities, a number of different bases upon which the courts have held that a claimant is not entitled to succeed in a claim, where he has been involved in criminal conduct. The maxim ex turpi causa non oritur actio, according to Lord Hoffman in Gray v Thames Trains [2009] 1 AC 1339 at para 30 "expresses not so much a principle as a policy" which "is not based upon a single justification but on a group of reasons which vary in different situations" because, where two parties are involved in an unlawful transaction, the court "faces the dilemma that by denying relief on the ground of illegality to one party, it appears to confer an unjustified benefit illegally obtained on the other".
31. The second defendant insurers, through Mr Richard Lynagh QC submitted that the policy manifested itself in two related principles:

i) The law will not recognise the existence of a duty of care owed by one participant in a crime to another participant in the same crime, in relation to an act done in connection with the commission of that crime.

ii) As a matter of public policy, a claimant cannot recover compensation for loss suffered in consequence of his own criminal act.

32. There is therefore a general moral turpitude point because the law will not regard it as fair, just and reasonable to impose a duty on one criminal to take care of his co-conspirator in the crime when carrying it out. This has been supported by the proposition that it is impossible to measure an appropriate standard of care in such a criminal conspiracy where there is inherent danger in the activities in question (e.g. handling explosives).
33. There is also a more limited point as to causation of loss by the criminal act in question. The general policy has been justified on the ground that it is offensive to public notions of the fair distribution of resources that a claimant should be compensated (often out of public funds) for the consequences of his own criminal conduct. This issue of causation has been held, in recent authorities, to be the key to recoverability. This was the approach of the majority in the ratio of Vellino v Chief Constable of the Greater Manchester Police [2002]1 WLR 218, as endorsed by Lord Hoffman in Gray (obiter) and the Court of Appeal in Delaney v Pickett 2011 EWCA Civ 1532 as part of the ratio of their decision in finding that the first defendant there was liable for causing injury to a fellow conspirator by dangerous driving when both were out, as the judge found, on a trip selling cannabis.
34. In Vellino the principle was expressed thus:

"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 the tortious conduct of the defendant"

35. This was explained by Lord Hoffman in Gray as being a simple question of causation, with which all lawyers were familiar in the law of tort, a point with which Lord Phillips, Lord Scott and Lord Brown appear to have agreed;

"This distinction, between causing something and merely providing the occasion for someone else to cause something …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 judgement of Judge LJ in Cross v Kirby …[who] formulated the test of 'inextricably linked' which was afterwards adopted in ….Vellino. Other expressions which he approved ...were 'an integral part or a necessarily direct consequence' of the unlawful act… and 'arises directly ex turpi causa…'. It might be better to avoid metaphors like 'inextricably linked' or 'integral part' and to treat the question as simply one of causation. Can one say that, although the damage would not have happened but for the tortious conduct of the defendant, it was caused by the criminal act of the claimant? Or is it 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."

36. In Delaney, Ward LJ, having reviewed earlier authorities, cited this passage in the speech of Lord Hoffman and said that it provided the answer in the case he was deciding. The criminal activity in which they were embarked merely provided the opportunity for the dangerous driving which was the immediate cause of the injuries suffered. The obtaining and transporting of the drugs in the journey on which the claimant and defendant were there embarked was incidental to the negligent driving itself. Both Richards LJ and Tomlinson LJ agreed, though both held that the same result would follow from the application of other principles enunciated in other authorities to which I shall refer shortly.
37. On the causation test, the claim here must fail. The claimant and defendant were both participating in a criminal enterprise which involved the theft of the ladders and the unlawful removal of them in a van, where the only means of so transporting them in a speedy getaway meant that the claimant had to keep the ladders in the van, with the door open by standing on the rear footplate of the van and hanging on to the ladders and the rear of the van. Speed was of the essence of the getaway and the claimant's actions were an essential part of the joint enterprise. His injuries were caused by a combination of the first defendants' driving at speed and his position on the back, which made that driving dangerous. What he was doing was so unusual as to be as causative of his injuries as the driving, both of which were part of the criminal activity in which they were both engaged.
38. Mr Christopher Melton QC submitted that there was a principle of proportionality which came into play in measuring the consequences of the tortious activity of the driver against the degree of criminality of the claimant. I am unable to detect any such element in Gray or Delaney, where causation was treated as the key (although the point was raised in the context of the issue concerning the MIB Agreement in Delaney, where I find myself in agreement with Tomlinson LJ rather than Ward LJ). If the question is one of causation, there is no room for the operation of any considerations of the disproportionate injury suffered as against the heinousness of the crime committed. Although Sir Murray Stuart Smith suggested in Vellino that the criminal conduct in question had to be sufficiently serious for the principle of ex turpi causa to apply, his own statement of the relevant principles at para 70 conflated the moral turpitude point with that of causation, whilst saying that there was no question of proportionality arising between the conduct of the claimant and the defendant. He pointed out also that, if the criminal offence was trivial it was hard to see how it could be "integral" (i.e. directly causative) of the claim.
39. I gained no assistance from any of the statutes referred to by the claimant nor from the Law Commission's reports which do not suggest that the law needs changing.
40. I am also clear however, that the claimant cannot recover on the basis of the first principle to which I have referred in paragraph 31 above. In Vellino, Schiemann LJ and Sir Murray Stuart Smith both said that application of the maxim ex turpi causa would be likely to give rise to the same result as a refusal to recognise the existence of a duty. At para 35 Schiemann LJ said that:

"whether one expresses the refusal of a remedy as being based on absence of causation, absence of duty in these circumstances, absence of breach of a wider duty, or as being based on the application of a wider principle that a plaintiff as a matter of policy is denied recovery in tort when his own wrongdoing is so much part of the claim that it cannot be overlooked. Or because the plaintiff had voluntarily assumed the risk of it, is perhaps a matter of jurisprudential predilection on the part of the judge."

41. Schiemann LJ also referred to an unreported earlier decision of his in 1998 in the Court of Appeal in Sacco v Chief Constable of the South Wales Constabulary, where he said this;

"it is common ground that the policy of the law is not to permit one criminal to recover damages from a fellow criminal who fails to take care of him whilst they are both engaged in a criminal enterprise. The reason for that rule is not the law's tenderness towards the criminal defendant but the law's unwillingness to afford a criminal plaintiff a remedy in such circumstances."

42. In Ashton v Turner [1981] 1 QB 137, the claimant was one of three young men who, after an evening's drinking, used a car belonging to one of them in a joint enterprise of burglary. They threw a brick through a shop window, which set off the alarm, and stole two or three radios, ran for the car and then sought to make their escape in the car, which was quickly hemmed in by taxis which came on to the scene. The claimant gave some directions to the defendant who was driving, to "reverse" and to "go through the gears" and the defendant then drove at a speed in excess of 60mph and skidded when being chased by the taxis. It was found that both the claimant and the defendant were participating in a burglary which involved the use of a getaway car being driven by the first defendant to avoid the arrest of both of them. Ewbank J referred to National Coal Board v England [1954] AC 40 (HL) and the statement of Lord Asquith that, if the maxim of ex turpi causa was to apply, the tortious act in question had to be "at least a step in the execution of the common illegal purpose". He then referred to a number of Australian authorities and concluded:

"..the law of England may in certain circumstances not recognise the existence of a duty of care owed by one participant in a crime to another participant in the same crime in relation to an act done in connection with the commission of that crime. That law is based on public policy and the application of the law depends on a consideration of all the facts. Having regard to all the facts in this case, I have come to the conclusion that a duty of care did not exist between the first defendant and the plaintiff during the course of the burglary and during the course of the flight in the getaway car".

43. The Judge went on to find alternatively that the maxim applied, even if he was wrong on the question of duty.
44. Pitts v Hunt [1991] 2 QB 24 (CA) was not dissimilar inasmuch as the plaintiff was the pillion passenger on a motor bike which was involved in a collision with a car. The claim against the rider of the bike failed because the two were together engaged in a criminal offence, both having drunk substantial quantities of alcohol and the plaintiff having encouraged the defendant to ride the bike unlicensed, uninsured and in a highly reckless and dangerous manner. The maxim applied, although each member of the Court of Appeal gave differing reasons for their decision.
45. Beldam LJ referred to Ashton and to the National Coal Board decisions, as well as Australian authorities and concluded that, on the findings of the judge, the plaintiff was playing a full and active part in encouraging the rider to commit offences and was therefore debarred on grounds of public policy from recovering compensation for injuries sustained. It was the conduct of the person who sought to base his claim upon an unlawful act of his own, that determined whether the maxim applied. Balcombe LJ reached his decision on the basis that, as set out in the Australian authorities, it was not possible to determine the standard of care to be applied in an unlawful enterprise of this kind, in the same way as it was impossible in the case of a getaway driver. Therefore there was no duty of care owed. Dillon LJ found it difficult to apply a test of what would or would not be an affront to the public conscience and considered that the key question was whether the plaintiff's action arose directly ex turpi causa or whether he had suffered a genuine wrong to which the unlawful conduct was merely incidental. This avoided grading illegalities according to moral turpitude. He referred also to the difficulty of determining a standard of care in such circumstances, citing without disapproval the decision in Ashton in relation to the driving of a getaway car and concluded that the injury arose directly from the joint criminal enterprise.
46. In my judgement, it matters not which test or formulation of ex turpi causa is applied, as the result is the same- the claim must fail. As a matter of general public policy, a participant in a joint enterprise theft which involves a speedy getaway in a van, with one participant driving and the other clinging dangerously on to the stolen items and the rear of a semi open van, with a door swinging, cannot recover for injuries suffered in the course of that enterprise. The driver cannot owe a duty of care to his co-conspirator and it is not possible to set a standard of care as to how fast the van should be driven, in circumstances where speed is necessary to get away and there is a need for the other co-conspirator to hang on desperately to the stolen items and the back of the open van in order to effect their joint objective of a speedy escape. Risk and danger were inherent in the enterprise itself. Furthermore, for the reasons I have already given, the unlawful activity of the claimant in the theft and getaway was as directly causative as the driving of the first defendant. The claimant is thus precluded from recovery for the consequences of his own criminal conduct.
47. Once again there is no question of proportionality here. In Revill v Newbery [1996] QB 567, the existence of an occupier's duty to a trespasser could not be in issue because of the Occupier's Liability Act and it was held that the existence of the defendant's duty was effectively concluded by that, even thought the claimant was a trespasser engaged in a criminal enterprise. The question of proportional use of force by the defendant was a key issue for liability in respect of the trespasser and the court held that the principles of ex turpi causa could not apply. It does not therefore assist the claimant in the case of a conspiracy to which he was a party with the first defendant.

Contributory negligence

48. As I have held that the claimant cannot recover at all, the issue of contributory negligence does not arise. Had it arisen, I would have found that, in accordance with s 1 of the 1945 Act, the claimant and the first defendant were both equally to blame for the injuries he suffered and that his recovery would have been restricted to 50%.

Conclusion.

49. For the reasons given, the claim fails, and absent any special features of which I have not been told, it follows that costs must follow the event. If there are any unusual features about this, the parties can address me on them and I will make an appropriate ruling. Otherwise I anticipate that the parties will be able to agree the order which follows from my judgment.

JC- 16.5.12.