News Category 3
Ex Turpi Causa, Causation and Contributory Negligence - Katharine Evans (CILEx), Bartletts Solicitors
10/07/15. The Court of Appeal has recently handed down an interesting judgment in a road traffic personal injury case which involved an examination of the defence of ex turpi causa non oritur actio along with the issues of causation and contributory negligence.
In Daniel McCracken (a protected party suing by his mother and litigation friend Deborah Norris) v (1) Damian Smith (2) The Motor Insurers’ Bureau (3) Darren Michael Ball [2015] EWCA Civ 380, the claimant (M) had been injured in an accident in which he had been a pillion passenger on a trials motorbike being driven by the first defendant (S) when it collided with a minibus being driven by the third defendant (B). The case was complicated in particular by the fact that S did not have a driving licence or insurance, the bike was stolen and what’s more was not designed for riding by more than one person.
At first instance, the judge held that S was liable to M. As for the MIB’s liability in this respect, the judge rejected the defence of ex turpi causa both in respect of S and the MIB. He also found that the MIB had not proven that M knew or ought to have known that the bike had been stolen or unlawfully taken. However, the MIB’s liability in this respect was excluded due to the fact that the judge also found that M knew that the bike was being used without insurance (under clause 6.1(e)(ii) of the Uninsured Drivers’ Agreement).
The judge then went on to find that the minibus driver, B, had driven negligently and since the defence of ex turpi causa had failed in relation to the other two defendants it was not necessary to consider it with respect to him. As for contributory negligence the judge held that damages should be reduced by 45%, a figure which included 15% for not wearing a helmet.
B appealed the judgment on the issues of ex turpi causa, liability, contributory negligence and finally costs.
Ex Turpi Causa
The leading judgment was given by Richards LJ with whom Underhill LJ and Christopher Clarke LJ agreed, with the latter adding further comments of his own. Richards LJ examined a number of authorities on this issue including Joyce v O’Brien [2014] 1 WLR 70, Pitts v Hunt [1991] 1 QB 24 and Les Laboratoires Servier v Apotex Inc [2015] AC 430.
In doing so, he referred to Lord Sumption’s approach in the latter case and asked whether M’s conduct amounted to “turpitude” for the purpose of the defence. He found that it did on the basis that M was aware of facts which could give rise to the offence of dangerous driving.
However, the big question was whether the claim against B was founded upon that turpitude. On this, Richards LJ said that on the duty of care analysis formerly applied in joint enterprise cases the dangerous driving had no effect on the duty or standard of care expected of B. However, with regards to the causation analysis this was more difficult because there were two causes: the dangerous driving of the bike and the negligent driving of the minibus. On this analysis he concluded that the defence should fail, explaining at paragraph 52 that:
“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.”
This was further explained by Christopher Clarke LJ who added at paragraph 87:
“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.”
Though not the subject of the appeal, it should be noted that Richards LJ also said the following in relation to the judgment on ex turpi causa in relation to the claim (by Daniel) against S (Damian) and the MIB (at paragraph 48):
“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.”
Liability and Contributory Negligence
In relation to B’s negligence, the court upheld the judge’s finding. But on the issue of contributory negligence, Richards LJ referred to the recent case of Jackson v Murray [2015] UKSC 5 in which the Supreme Court interfered with a finding of contributory negligence. This was also so in the present case and the court held that the overall reduction on the basis of M’s contributory negligence should be 65% as opposed to 45%.
Costs
A final point on the appeal was the costs. At first instance the judge had found that the MIB could recover 90% of its costs and that these should be paid for by B rather than M. This was upheld by the court with Richard LJ emphasising that the “MIB's continued involvement in the proceedings was necessitated by Mr Bell's denial of any degree of negligence” (paragraph 78).
Conclusion
At first blush it might seem surprising that a claim can succeed if the court has found the claimant’s conduct came under the heading of “turpitude”. But in actual fact, allowing the claim to succeed against B (as opposed to S) and instead turning to contributory negligence seems to bring some logic into an area that is at risk of seeming confused.
As for the re-opening of contributory negligence, tt remains to be seen if this perhaps indicates a moves towards greater interference in such matters by the higher courts or whether each of these two cases are simply limited to their very specific facts.
Katharine Evans (CILEx)
Bartletts Solicitors, Liverpool
Please note that this article is correct as at 20 May 2015. It does not constitute nor is any substitute for legal advice. Any Crown Copyright material is reproduced with the permission of the Controller of OPSI and the Queen’s Printer for Scotland.
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Low Exposure Asbestos Claims: the Devil Is in the Detail… and the Disclosure - Jon Andrews, Linder Myers Solicitors
08/07/15. Following the cases of ‘Williams v Birmingham’ and ‘McGregor v Genco’ in particular, it has become common for asbestos claims to be defended on the basis that low exposure to asbestos, even in the 1970’s, did not create a foreseeable risk of injury and hence does not amount to a breach of duty on the part of an employer. The simple point being, that even if causation is established, the Claimant will fail to establish a breach if the exposure levels were low, and thus the claim must be dismissed.
Most commonly, the Defendant will rely on Technical Data Note 13 (TDN 13). Entitled ‘Standards for Asbestos dust concentration for use with the Asbestos Regulations 1969’ this document sets out guidance for HM factory inspectors, in the context of when to enforce the substantive provisions of the 1969 regulations. It is important to remember that is all the document was ever meant to provide.
The argument will be put forward that if exposure was below the levels set out in TDN13, no breach has occurred. The argument will be strengthened if evidence of some steps taken by the Defendant to prevent or mitigate exposure is forthcoming. Such evidence will still assist the Defendant even if the steps taken, with the benefit of hindsight, seem woefully inadequate, but were not ‘clearly bad’ at the time. This was much the case in McGregor.
There are undoubtedly difficult issues for Claimants here. However, it is important not to throw in the towel at the first mention of TDN13. Why?...
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The Risk and Burden of Being a Trespasser - Helen Tinkler, CILEx Law School, Bar Standards Board and Whatley Weston & Fox
07/07/15. The Occupiers' Liability Act 1957 provides that its rules have effect in place of the rules at common law. This encourages a temptation to overlook the obvious derivation of the statutory rules from the common law. But to be successful in any claim arising from an occupiers' liability, whether to a visitor or a trespasser, the burden of proof rests with the claimant (ignoring res ipsa loquitor), to prove three things: a) that the defendant owed a duty of care, b) that the defendant breached the duty of care and c) that the breach of duty of care caused damage to the claimant - in effect, the same tests to establish negligence.
Under the OLA 1957, the claimant starts from an advantage as the existence of a duty of care is already established - (s.2(1) and (2)(2)). For a trespasser, bringing a claim under the OLA 1984, there is no such advantage and no avoiding the need to establish the existence of a duty of care. So found Thomas Buckett in the recent case of Buckett v Staffordshire County Councilcase no 3SO90263). Buckett, aged 16 at the time of the accident, was trespassing with friends on a school roof on a Sunday afternoon. Having jumped onto a skylight, he went through it and suffered a severe head injury in the fall. What is engaging about the case is that much of the...
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Paying the Premium for Inadequate Evidence on Detailed Assessment - Andrew Roy, 12 Kings Bench Walk
06/07/15. Nokes v Heart of England NHS Foundation TrustSenior Court Costs Office, Master Leonard, 29 May 2015. This case is the first reported decision on the recovery of additional liabilities taken out after the implementation of the Jackson reforms on civil funding. As is well known, these reforms almost entirely abolished inter partes recoverability of additional liabilities.
This case concerns one of exceptions to this, the presevered recoverability in clinical negligence cases of ATE premiums in respect of a Claimant’s the liability to pay for expert reports.
The case is however relevant beyond this specific context:
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The approach taken to the quantum of ATE premiums remains relevant to mesothelioma claim, the old regime having been preserved entirely in their case.
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It also remains relevant to any outstanding cases litigated under the old-style funding arrangements before they were abolished.
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At a more general level, the manner in which the arguments in this case were advanced and determined is instructive in respect of all costs disputes, not merely those involving additional liabilities...
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Woodland v Maxwell and or [2015] EWHC 273 (QB): Liability Win on Basis of Children’s Lay Witness Evidence - Jenny Maloney, Slater and Gordon (UK) LLP
01/07/15. The claimant won this case because Mr Justice Blake preferred the contemporaneous evidence to new versions of events given at trial. Annie Woodland nearly drowned during a school swimming lesson at Gloucester Park swimming pool in Essex on 5th July 2000 when she was ten years old. She survived but suffered a serious brain injury and is permanently disabled. Whitmore Junior School engaged independent contractors to teach swimming and provide supervision. The claimant brought a civil action alleging that the swimming teachers and lifeguard failed to supervise her properly, causing a delay in her rescue.
The trial took place in January 2015 against two defendants. The first defendant was the lifeguard and the only one of the independent contractors with insurance. The second defendant was Essex County Council, the local authority responsible for the school. Following the Supreme Court ruling in Woodland v Essex County Council [2013] UKSC 66, Essex County Council owed the claimant a non-delegable duty of care and was therefore liable for the negligence of the claimant’s swimming teacher.
There was a hot factual dispute at the trial as to what happened on the day. The judge heard lay witness evidence from the teachers and lifeguard who were at the pool and three of the claimant’s classmates...
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