High Court of Ireland Decisions

Neutral Citation No: [2005] IEHC 221

THE HIGH COURT

RECORD NO. 2002/6753P

ALAN ANDERSON

PLAINTIFF

AND THOMAS COOKE AND BRIAN COOKE

DEFENDANTS

Judgment of Finnegan P. delivered on the 29th day of June 2005

The Plaintiff resides at 4 Maypark Lane, Co. Waterford. He was born on the 11^th September 1979 and at the time of the events giving rise to this action was aged 22 years. He is now aged 26 years.

On the 18^th November 2001 the Plaintiff was a passenger in a motor car the property of the first named Defendant and then being driven by the second named Defendant at Port Road, Belview, Waterford. The motor car left the road and collided with a ditch or wall. The Defence delivered does not deny the foregoing. The Plaintiff because of his injuries has no recollection of the accident or any relevant preceding or succeeding events.

The Defence delivered contains the following pleas –

1. The Plaintiff was not at any material time a lawful passenger in the Defendant's vehicle, but was at all material times travelling in the said vehicle for the purpose of obtaining photographic evidence of it performing at maximum speed, which said material he required for submission for an internet website and he requested the second named Defendant to so drive the said car at maximum speed for the said purpose and thereby expressly or impliedly consented to the risks involved in travelling at such speed which said speed caused the loss of control and collision complained of and in the aforesaid circumstances the Plaintiff expressly or impliedly consented to the risks of being driven as a passenger at such speed and is thereby precluded from pursuing this claim against the Defendants.

2. The Plaintiff and the second named Defendant were at all material times engaged in a common or joint criminal enterprise, namely the driving of the said car at maximum speed and in excess of the prevailing speed limit and the collision complained of was caused by and consequent on the said enterprise and the Plaintiff is thereby precluded from pursuing this claim and the Defendant will rely in support of such contention on the doctrine of "ex causa turpe non oritur actus".

3. The Defendants will, inter alia, rely on the defence of volenti non fit injuria.

The Defence further pleads that the Plaintiff was negligent and contributorily negligent in respect of the matters set out in paragraphs 1 and 2 of the Defence and also guilty of contributory negligence in failing to wear a seatbelt. There is an admission of driving at an excessive speed and other particulars of negligence pleaded are denied.

Garda John Killeen the investigating Garda gave evidence on behalf of the Plaintiff. The road on which the accident occurred is a new road servicing the new port of Waterford. He was called to the scene of the accident at about 8.05. The evening was dry. When he arrived at the scene he found that a car had crashed into a pole on the right hand side of the road as one goes towards the port. The car was facing away from the port. The road inclines slightly towards the port. Skid marks on the road indicated that the car was travelling towards the port and commenced on the incorrect side of the road for a car travelling in that direction. The Plaintiff was trapped in the car and was mostly on the driver's side. As the second named Defendant was being placed in the ambulance called to the scene he said he was sorry, that he was showing off and that he had been travelling at 90 miles per hour. At the scene of the accident there was a slight bend to the right as the car was travelling. The nature of the impact was such as would push the passenger over to the driver's side of the car and the position of the Plaintiff in the car was consistent with his having been a passenger. The car was a high powered vehicle. Arising out of the accident the second named Defendant appeared in the District Court and the Circuit Court pleading guilty to careless driving in each case. At no time in these proceedings was any mention made of a joint enterprise between the Plaintiff and the second named Defendant. The speed limit on the road is 60 m.p.h. There are three gentle curves the length of the road. The witness was unable to say whether or not the Plaintiff was wearing a seatbelt. Skid marks at the scene stretch for 230 feet after which the car made a high speed impact with the pole. The skid mark indicated that the car had pirouetted close to the impact with the pole.

John Tierney gave evidence on behalf of the Plaintiff. He is an employee of the South Eastern Health Board Ambulance Service and accompanied the ambulance to the scene of the accident. Part of his duty was to complete a form. In this form he recorded that the Plaintiff was wearing a seatbelt at the time of the accident. This he did from his observations at the scene.

The second named Defendant gave evidence. The car in which he was driving is a Toyota Corolla Twin Cam GTI model manufactured in 1989/1990. It has a far more powerful engine than the normal 1.6 Corolla and would be used for motor sport purposes. He had known the Plaintiff for a number of months. They had originally met in a car park where motor enthusiasts meet and discuss cars. At the time of the accident he was familiar with a website called MAXED.ie.net and both he and the Plaintiff had user names and passwords for that site. He had been using the site for some six months prior to the accident during which time he had communicated with the Plaintiff on the site. They had met at car parks on several occasions and had exchanged phone numbers. On the day of the accident he received a phone call from the Plaintiff and they agreed to meet. The Plaintiff suggested that they take the first named Defendant's car and see how fast it would go and enable the Plaintiff to take a photograph of the speedometer which could be posted on the internet. He agreed. The Plaintiff had a camera with him. The Port Road was practically if not entirely empty. The Plaintiff prepared his camera and the first named Defendant then set off at high speed with a view to reaching the highest possible speed in the car. On the first run the Plaintiff took his seatbelt off so that he could lean over and take a photograph of the speedometer and he did take such a photograph. On that run the car travelled in excess of 125 m.p.h. They made a second run starting somewhat down the Port Road and did not achieve the same speed. As they came to the end of the Port Road he was slowing down when the accident happened. He did not know the speed achieved on the second run. No photograph was taken on the second run. The accident occurred when the back of the car spun out to the left causing the car to go out of control onto the right hand side of the road and collide with the pole. He estimated his speed at the time the car went out of control as 110 m.p.h. He could not recall whether the Plaintiff had put his seatbelt on for the second run. Several days following the accident he went to see the car and there were no personal belongings in the same. He then attended the Garda Station and recovered the contents of the car from Garda Killeen. These included a camera belonging to the Plaintiff which was damaged so that he could not remove the film. He left the camera into a photographic shop in Waterford to have the film developed. He identified one photograph that was developed and which showed the speedometer of the car indicating a speed of 126 m.p.h.

The witness was cross examined. He had never previously attempted to find out how fast the car would go. He had previously driven the car on the Port Road but not for the purpose of testing its speed but rather to meet with other car enthusiasts and do handbrake turns inside a shed.

Thomas Cooke the first named Defendant and Aleta Thorsson gave evidence that they had accompanied the second named Defendant to the Garda Station to collect the items taken from the car by the Gardai and that included among them was a camera.

In addition to the foregoing witnesses the Defendant called Dr. Woods an Engineer and John Paul L'Estrange who has a knowledge of cameras: I did not find their evidence of great assistance. Finally a private investigator, John Cahill, was called to give evidence of what he found on the internet and particular forums in which car enthusiasts exchange correspondence which can be viewed by other persons accessing the site. He found postings by the Plaintiff. Accepting that this was indeed the case the evidence did not assist me in my determination of the facts.

Having considered the evidence which I have summarised above I accept the account given by the second named Defendant as to the events of the evening on which the accident occurred. I am satisfied that the Plaintiff and the second named Defendant agreed between themselves that the second named Defendant should drive the car as quickly as possible along the Port Road with a view to the Plaintiff taking a photograph of the speedometer to record the speed at which the car was travelling. Such a photograph was indeed taken. I accept the second named Defendant's evidence that the Plaintiff removed his seatbelt for the purposes of taking the photograph. The photograph was taken on the first run. On the second run which is that relevant to this case I have considered the evidence of the second named Defendant and of John Tierney. The onus is on the Defendants to satisfy me on the balance of probabilities that the Plaintiff was not wearing a seatbelt on the second run: this they have failed to do and accordingly insofar as this particular of contributory negligence is concerned I hold in favour of the Plaintiff.

Turning then to the legal issues raised by the Defendants these are as follows –

1. Volenti non fit injuria.

2. Ex turpi causa

3. Volenti non fit injuria as contributory negligence.

Insofar as volenti non fit injuria is concerned I first have regard to section 34 of the Civil Liability Act 1961 which deals with apportionment of liability in case of contributory negligence. Section 34(1)(b) provides as follows –

"This subsection shall not operate to defeat any defence arising under a contract or the defence that the plaintiff before the act complained of agreed to waive his legal rights in respect of it, whether or not for value; but, subject as aforesaid, the provisions of this subsection shall apply notwithstanding that the defendant might, apart from this subsection, have the defence of voluntary assumption of risk."

The effect of this provision is that volenti non fit injuria is no longer a defence unless there was an agreement. See O'Hanlon v Electricity Supply Board 1969 I.R. 75 where Walsh J. said in relation to section 34(1)(b) –

"In section 2(1) of the Act the word "contract" is defined as meaning a contract under seal or by parole. This clearly refers to a contract supported by consideration or one under seal. There is no such contract alleged in this case and it is not necessary to consider this point further. It is already settled that such contracts are construed strictly against the party claiming the benefit of the exemption and there are instances where such contracts are actually prohibited by statute.

Under the terms of the Act of 1961 the Defendants must establish that the Plaintiff agreed to waive his legal rights in respect of the act complained of and that such agreement was made before the act. As no question of statutory duty arises in this appeal it is unnecessary to consider whether any such agreement, if it did exist, would be contrary to the statute or to public policy. In my opinion, the use of the word "agreed" in the Act of 1961 necessarily contemplates some sort of intercourse or communication between the Plaintiff and the Defendants from which it could be reasonably inferred that the Plaintiff had assured the Defendants that he waived any right of action that he might have in respect of the negligence of the Defendants. A one sided secret determination on the part of the Plaintiff to give up his right of action for negligence would not amount to an agreement to do so. Such a determination or consent may be regarded as "voluntary assumption of risk" in the terms of the Act but, by virtue of the provisions of the Act and for the purposes of the Act, this would be contributory negligence and not the absolute defence mentioned in the first part of subsection (1)(b) of section 34."

The evidence has not established any such contract or agreement and in these circumstances the plea by way of defence of volenti non fit injuria fails.

In relation to the defence of ex turpi causa the Civil Liability Act section 57 is relevant. This provides as follows –

"57(1) It shall not be a defence in an action of tort merely to show that the plaintiff is in breach of the civil or criminal law.

The effect of section 57(1) is to modify but not to abolish the defence of ex turpi causa. While for some time there appears to have been doubt as to whether the maxim applied to actions based on contract only it is now well settled that it applies equally to actions grounded in tort: Hegarty v Shine 2 L.R.I. 273, and 4 L.R.I. 288 Palles C.B. at 299, O'Connor v McDonnell The High Court Unreported 30^th June 1970 Murnaghan J., National Coal Board v England 1954 1 All E.R. 546. In O'Connor v McDonnell Murnaghan J. cited with approval the statement of the law by Lord Mansfield in Holman v Johnston 1 Cooper 341 –

"No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act if from the Plaintiff's own stating or otherwise the cause of action appears to arise ex turpi causa or the transgression of a positive law of this country then the court says he has no right to be assisted. It is upon that ground the court goes: not for the sake of the defendant."

The principle however was refined and it was not every crime committed by the Plaintiff which would cause his claim to be non suited. Thus in National Coal Board v England the Plaintiff was in breach of the Explosives in Coalmines Order 1934 the contravention of which was an offence. This was held not to bar him succeeding in his action. Lord Porter cited with approval from the judgment of Cohen L.J. in Cakebread v Hopping Brothers (Whetstone) Limited 1947 1 All E.R. 389

"The maxim ex turpi causa is based on public policy, and it seems to me plain that on the facts of this case public policy, far from requiring that the action shall be dismissed, requires that it shall be entertained and decided on its merits. The policy of the (Factories Act 1937) makes it plain that such a defence as was put forward by Counsel for the employers in this case would be inconsistent with the intention of Parliament when it passed the Act."

He held that the policy of the Act was to ensure a safe method of working.

This policy based approach was also adopted in Canada in Henwood v Municipal Tramways Trust (S.A) (1938) 60 C.L.R. 438. The Plaintiff was a passenger in a tram and becoming affected by nausea put his head outside the window and was struck by two standards while the tram was in motion. His conduct was in breach of a byelaw which exposed him to a penalty. The Defendant was found liable and it was held that the Plaintiff's breach of the byelaw was not a defence to his action. It was there held that there is no general rule denying to a person who is doing an unlawful act the protection of the general law imposing upon others duties of care for his safety. Thus at common law an occupier could incur liability to a trespasser. See also Revill v Newbery 1996 1 All ER 291 an occupiers liability case in which the occupier shot the Plaintiff who was attempting to break into his premises and in which the Defendant was found liable.

The maxim is more likely to have application in circumstances of joint illegal activity. This was the case in O'Connor v McDonnell where the Plaintiff and the Defendant with others were engaged in the poaching of deer when the Defendant accidentally shot the Plaintiff. Murnaghan J. held that the maxim applied and that the Plaintiff must fail. The applicability of the maxim to joint unlawful activities has been considered in a number of Australian cases – Smith v Jenkins 1970 119 C.L.R 397, Jackson v Harrison 1978 138 C.L.R. 438 and Gala & Ors v Preston 100 A.L.R. 29. In Gala the Plaintiff together with the three Defendants drank all afternoon and then stole a motor vehicle. They drove for some four hours drinking beer and sharing the driving after which the vehicle crashed while being driven by the first Defendant. On appeal it was held that the Plaintiff and the first Defendant were engaged in a joint illegal enterprise. It was held that the driver of the vehicle owed no duty of care to the Plaintiff as the parties were not in a relationship of proximity such as to give rise to a relevant duty of care since it was not possible or feasible for a court to determine what was an appropriate standard of care to be expected in the circumstances. In the course of a Judgment delivered by Mason C.J. Deane, Gaudron & McHugh J.J. the Court said –

"Commencing with Jaensch v Coffey (1984) 155 C.L.R. 549 this Court, in a series of decisions, has accepted that a relevant duty of care will arise under the common law of negligence only in a case where the requirement of a relationship of proximity between the Plaintiff and the Defendant has been satisfied. The requirement of proximity constitutes the general determinant of the categories of case in which the common law of negligence recognises the existence of a duty to take reasonable care to avoid reasonably foreseeable and real risk of injury. In determining whether the requirement is satisfied in a particular category of case in a developing area of the law of negligence, the relevant factors will include policy considerations. Where, as in the present case, the parties are involved in a joint criminal activity, those factors will include the appropriateness and feasibility of seeking to define the content of a relevant duty of care. Thus, it would border on the grotesque for the Court to seek to find the content of a duty of care owed by one bank robber to another in blowing up a safe which they were seeking to rob. On the other hand to take an extreme example the other way, it would be unjust and wrong for the Court to deny the existence of the ordinary relationship of proximity which exists between the driver of a motor vehicle and a passenger merely because the driver was, with the encouragement of the only passenger, momentarily driving in a traffic lane reserved for the use of cars with three or more occupants."

The Court went on to find that the onus lies on the party who asserts that by reason of special and exceptional facts, the ordinary relationship of a driver towards a passenger is transformed into one which lacks the requisite relationship of proximity to give rise to a relevant duty of care. The same view as to onus was taken in the Canadian case Hall v Hebert 1993 101 DLR (Fourth) 129. Insofar as this conflicts with the statement of the Law by Lord Mansfield cited by Murnaghan J. in Holman v Johnston I prefer the latter view. As the issue historically was policy based I consider it appropriate that the Court may itself raise the issue even if the Defendant does not: there are cases in which the Court has regarded it as contrary to policy to lend assistance to a Plaintiff involved in joint illegal activity even though the defence of ex turpi causa is not raised by the Defendant by way of defence – I recall an action for an account of a joint venture between two highwaymen. The Defendant in this case has in fact pleaded ex turpi causa and has discharged the onus which rests upon a Defendant.

The approach adopted in Gala save in relation to onus, it seems to me, reflects the common law – it is not in every case in which the parties had acted together in a manner which was illegal that the illegality would be a bar to the action.

This being the case what is then the effect of section 57(1)? Firstly it seems to envisage the approach adopted by the Court in National Coal Board v England and Henwood v Municipal Tramways Trust that is to examine the policy of the statute or common law under which the Plaintiff's illegality arises and then determine if a duty of care exists. Secondly it seems to me that the Civil Liability Act, even in cases of a criminal act in which both the Plaintiff and Defendant are jointly engaged, the Court is required to enquire upon the basis of proximity whether a duty of care and if so what duty arose on the part of the Defendant to the Plaintiff in the circumstances of the particular case: if the Court is unable to determine if, and if so what duty of care arose the Plaintiff's claim will fail.

This being the view which I have formed as to the law I am satisfied that in the circumstances of this case it is not possible to determine the duty of care which the Defendant owed to the Plaintiff having regard to the illegal enterprise upon which they were both engaged. If the joint enterprise was that the car should be driven at 70 m.p.h. where speed was limited by regulation to 60 m.p.h. the Court might well be in a position to establish the standard of care owed by the driver to the passenger: each case must turn upon its own circumstances. In the present case I cannot establish the duty of care if any which was owned by the Defendant to the Plaintiff in order to determine if there was a breach of the same. Insofar as there is authority for the proposition that the Courts in a case in which the Plaintiff and Defendant were joint participants in illegal conduct the Court will not hear evidence to enable it to establish whether and if so what duty of care is owed by the Defendant to the Plaintiff by reason of section 57(1) of the Civil Liability Act 1961 that is no longer the law. The denial of relief is related not to the illegal character of the activity but rather to the character and incidents of the enterprise upon which the Plaintiff and the Defendant are engaged and to the hazards which are necessarily inherent in its execution. In the circumstances of this case as I am unable to determine the duty if any which was owed by the Defendant to the Plaintiff and accordingly to determine whether or not there was a breach of the same the Plaintiff fails.

In these circumstances the third issue raised by the Defendant – volenti non fit injuria

as contributory negligence does not arise.

Approved: Finnegan P.