LORD JUSTICE BELDAM: The appellant, Andrew James Pitts, appeals against the judgment of His Honour Judge Fallon sitting as a Judge of the High Court at Bristol on 1st December 1988. The appellant claimed damages for personal injuries received when he was travelling as a pillion passenger on a motor cycle ridden by the deceased, Mark Hunt, which was in collision with a car driven by the second defendant on 10th September 1983. The question of liability had been ordered to be tried as a preliminary issue. Having heard evidence on Wednesday 26th to Friday 28th October 1988, the learned judge dismissed the appellant's case against both defendants. From his dismissal of the claim against the first defendants, the appellant now appeals.
The facts as found by the learned judge are not challenged.
The appellant at the time of the accident was eighteen years old. He himself owned a motor bicycle and was licensed to ride it. Mark Hunt, the deceased, whose personal representatives are the respondents to the appeal, was sixteen years of age. He was the owner of a 250 cc Suzuki motor bicycle which he used as a trail bike. He was not, however, the holder of a licence, nor was he insured to use the motor bicycle on a road. The appellant and the deceased were friends and used to go trail biking together. The appellant knew that the deceased was not the holder of a licence and that he was not insured to use the Suzuki motor cycle on the road. Together these two young men went to a disco at the Boot Inn at Shipton on 10th September 1983. They arrived there at about 7.30 pm and stayed until 11.15 pm. During that time they each drank far more than was good for them. After the accident samples taken from the deceased showed that the concentration of alcohol in his blood was over twice the permitted limit. In spite of this, the two young men set off together on the deceased's motor bicycle with the deceased driving. Their journey home took them along the A338 road which leads from Shipton Bellinger to Tidworth. They were travelling in a northerly direction towards Tidworth along a stretch of road which is approximately 8 metres wide and which passes the Tidworth Garrison Cricket Ground. The centre of the road is marked by painted hazard lines and cat's eye studs. There is no street lighting on this section of the road and traffic is restricted to a speed of 60 mph. It is an "A" class road with a good surface which was wet at the time. Approaching the scene of the accident when travelling towards Tidworth, as the motor cycle was, the road is virtually straight for 200 yards. It then rises to a crest and starts to bear to the left.
As these two young men rode home, no doubt in high spirits, the effects of intoxication began to exert themselves, and as is too frequently the case it caused them to throw caution to the wind; they began to behave in a reckless, irresponsible and idiotic way.
Two Army non-commissioned officers whose car had broken down were walking towards Shipton Belinger along the right-hand side of the road facing oncoming traffic when they heard the motor cycle approaching. They then saw its light and it was clearly in the middle of the road. The driver and pillion passenger were shouting as if they were having a good time and the horn was being blown. It then appeared to be driven straight towards them and passed them so closely that they moved onto the verge to get out of its way. They noticed then that it was being driven from side to side of the road, weaving in and out of the white hazard lines. It was travelling at about 50 mph as it did so. They heard both the rider and pillion passenger shouting "Hooray" and "Yippee", as if enjoying the experience. They were clearly showing no concern for other users of the road and the judge drew the inference that they were deliberately riding in a way calculated to frighten others. The evidence of these two pedestrians clearly supported that inference.
The second defendant, a young man of twenty-six, was driving his girlfriend home in his parents' Renault motor car. He was also giving a lift home to his brother's girlfriend. He was approaching the scene of the accident, travelling in a southerly direction at a reasonable speed, on his own side of the road. He was about to negotiate the bend in the road when he saw the motor cycle coming towards him on its wrong side of the road and travelling directly towards him in his path. Instinctively he moved to his offside in the hope that he would avoid a collision but, no doubt because the motor cycle was weaving down the centre of the road, it then seemed as if it swerved back onto its own side. So in response the second defendant steered towards his nearside but in the time available he was unable to avoid a collision. The motor cycle struck the Renault a severe but glancing blow on the front offside corner and then careered back onto its nearside verge for a distance of about 35 metres beyond the point of impact which appears to have been on or near the crown of the road. Tragically the injuries received by Mark Hunt were fatal. The appellant sustained injuries which have left him permanently partially disabled.
Such were the primary facts as the judge found them. He acquitted the second defendant of all blame and dismissed the appellant's claim against the first defendant on a number of grounds. Before considering them, it is necessary to state some further findings which the learned judge made. He found that the deceased had drunk so much that he was obviously unfit to drive and that if the appellant had been in a proper state he would have realised that. He found that the deceased, very much aided and abetted by the plaintiff, was deliberately trying to frighten others who were on the road. No doubt because they had drunk so much, they viewed it as a joke or a game but it was certainly reckless driving. He found that the appellant had supported or encouraged the deceased whom he knew was under age, drunk and uninsured, and he added:
"On my findings 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. Indeed the eye-witness accounts which I have accepted demonstrate that both the plaintiff and the deceased were actually enjoying their experience, partly, if not largely as a result of the very large amount they had drunk that night."
The learned judge then considered the various defences which had been raised by the first defendants. Firstly he held that the plaintiff could not maintain an action which was based on or arose out of criminal conduct on his part, "ex turpi causa non oritur actio. Secondly that on the grounds of public policy the law would not recognise in the circumstances of this claim that a duty of care was owed by the deceased to the appellant. Thirdly that, even if the appellant would ordinarily have been owed the normal duty of care, the risk of injury was so glaring and obvious that by the act of travelling as a pillion passenger on a motor bicycle ridden by the deceased in a state of intoxication and in the manner which he himself encouraged and enjoyed, he must be taken to have willingly accepted any risk of injury involved, "violenti non fit injuria". It had, however, been argued on the plaintiff's behalf that the provisions of section 148(3) of the Road Traffic Act 1972 precluded the first defendant from relying upon such a defence.
Holding that the section did in fact have that effect, the learned judge then considered whether if there had been a breach of duty by the deceased the damages recoverable by him should be reduced having regard to his own fault and if so to what extent. On this basis he concluded that as the appellant was equally responsible for what had happened and was in effect a partner in a joint enterprise of stupidity with the deceased, that it would defy commonsense to find that the appellant was not himself wholly to blame for his own injuries. Accordingly he held the appellant was not entitled to recover any damages even on that basis.
The first two grounds on which the learned judge rejected the plaintiff's claim arose from the first defendant's reliance upon public policy and, in particular, the policy expressed in the Latin maxim "ex turpi causa non oritur actio".
Since the days of Lord Mansfield it has been a rule of public policy that a court will not lend its aid to a man who founds his cause of action on an illegal or immoral act: Holman v. Johnson [1775] 1 Cowp 341. The question there arose in an action for goods sold and delivered which it was alleged were supplied in the knowledge that they were to be smuggled into England. The plaintiff, however, recovered the price of the goods since mere knowledge on his part that they might be unlawfully imported into England did not bar his claim.
The same grounds of public policy were said to underlie the decision of Lord Kenyon in Merryweather v. Nixon [1799] 8 T.R. 136 that a joint tortfeasor who had alone been sued to judgment and had had to pay the whole damages could claim no contribution from his fellow wrongdoer. This rule, finally abolished in 1935? was narrowed in its effect by later decisions to cases in which the tortfeasor claiming indemnity or contribution must have known that he was doing an unlawful act. In Adamson v. Jaryis [1827] 4 Bing 66 Best C.J. said:
"..... from the concluding part of Lord Kenyon's judgment in Merryweather v. Nixon, and from reasoned justice, and sound policy, the rule that wrongdoers cannot have redress or contribution against each other is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act."
In Colburn v. Patmore [1834] Exch. 1 CM & R 73 Lord Lyndhurst C.B. said at page 83:
"I know of no case in which a person who has committed an act, declared by the law to be criminal, has been permitted to recover compensation against a person who has acted jointly with him in the commission of the crime. It is not necessary to give any opinion upon this point but I may say that I entertain little doubt that a person who is declared by the law to be guilty of a crime cannot be allowed to recover damages against another who has participated in its commission."
This principle was applied by Denning J. (as he then was) in Askey v. Golden Wine Company & Ors. [1948] 2 AER 35. He held that the plaintiff who had been induced by the defendant's fraud to sell liquor in breach of the Food and Drugs Regulations and who had been fined could not recover the amount of the fine from the defendant when he had himself at least been guilty of gross negligence.
It is perhaps not surprising that few cases are to be found in the eighteenth and nineteenth centuries in which joint participants in a tort, the facts of which also constituted a crime, are to be found seeking redress the one against the other. The punishment meted out to the solicitors for the parties in the Highwayman's case, Everet v. Williams [1725] who were imprisoned and fined £50 each, would not have encouraged the bringing of such proceedings, see LQR 9 197, and until the rule in Smith v. Selwyn [1914] 3 KB 98 was abolished, no civil remedy could be pursued by the victim of a crime which amounted to felony until the criminal had been prosecuted. Further, before 1870, if he was prosecuted and convicted, the felon's property would be forfeited so that it was unlikely that any claim against him would be satisfied.
The rule of public policy that a cause of action could not be based upon an illegal act has been held to extend to cases in which an insured has sought indemnity under a policy of insurance for liability caused through his own unlawful acts. See Haseldine v. Hosken [1933] 1 KB 822 and Gray v. Barr [1971] 2 QB 554. Such a rule was treated by Kennedy J. in Burrows v. Rhodes [1899] 1 QB 816 at page 828 as having long been settled law if the liability in respect of which a person seeks indemnity arises from an act which is manifestly unlawful or which the actor knows to be unlawful as constituting either a civil wrong or a criminal offence. However the law has treated cases in which an insured claims indemnity in respect of a liability arising out of the use of a motor vehicle on the highway exceptionally in this respect. In Tinline v. White Cross Insurance [1921] 3 KB 327 an insured was held to be entitled to indemnity under a policy of motor insurance in respect of an accident even though he had pleaded guilty to manslaughter of a person killed as a result of his driving. Bailhache J. acknowledged that it was against public policy to indemnify a man against the consequences of a crime which he knowingly commits and in the word "crime" he included breach of any statutory duty which rendered a man liable to fine or imprisonment. In permitting recovery under the policy the judge drew a clear distinction between accidents which occurred through gross negligence and those which could be said to be the result of intentional acts on the part of the insured in which case he would have been denied indemnity.
In James v. The British General Insurance Co. Ltd. [1927] 2 KB 311 the insured was drunk and had been convicted of manslaughter and sentenced to twelve months imprisonment. Roche j. again drew the distinction between gross negligence or reckless negligence, negligence of the kind which constitutes criminality but nevertheless negligence as opposed to the wilful or advertent doing of the act. He said:
"In such circumstances as these there is not in my view on the part of the person who does the act that degree of criminality which in the doing of a known unlawful act makes it against public policy that the perpetrator should be indemnified in respect of it."
The distinction between deliberate and intentional acts and those which are unintentional though grossly negligent was maintained in the case of Hardy v. Motor Insurers Bureau [1964] 2 QB 745. In that case a security officer had been intentionally injured when he sought to prevent the driver of a van from driving off while he questioned him. The security officer had obtained judgment for damages of £300 in respect of his injuries. The driver of the van who was uninsured had been convicted of maliciously inflicting grievous bodily harm to the security guard. The requirement of malice in that offence would have been satisfied by recklessness: see R. v. Shephard [1981] AC 394. Nevertheless it was clear that the driver had deliberately driven off while the security guard was hanging on to the vehicle and had continued to drive when it must have been obvious to him that he would cause some injury to the guard. As the van driver was uninsured, the security guard sought to recover his damages from Motor Insurers Bureau who by the terms of their agreement with the Ministry of Transport had agreed to satisfy claims in respect of any judgment obtained for a liability required to be covered under a policy of motor insurance issued under the Road Traffic Acts. It was contended for the Bureau that liability for a criminal act was not a liability which the Road Traffic Acts required, or could require, to be covered by a policy of insurance. This court held that it was not against public policy to allow the security guard to recover under the agreement even though public policy would have precluded the driver from claiming indemnity under a policy if he had had one. Diplock L.J. said at page 767:
"The rule of law on which the major premise is based -ex turpi causa non oritur actio - is concerned not specifically with the lawfulness of contracts but generally with the enforcement of rights by the courts, whether or not such rights arise under contract. All that the rule means is that the courts will not enforce a right which would otherwise be enforceable if the right arises out of an act committed by the person asserting the right (or by someone who is regarded in law as his successor) which is regarded by the court as sufficiently anti-social to justify the courts refusing to enforce that right."
After holding that as the Road Traffic Act conferred on an injured third party a direct right of action against insurers and that it was therefore within the agreement and that it did not offend against the rule ex turpi causa non oritur actio to permit the injured person to recover, he went on:
"No doubt, in the unlikely event of the assured himself discharging his liability to the third party, the rule ex turpi causa non oritur actio would prevent his enforcing his contractual right to indemnity against the insurers if the event which gave rise to his liability to the third party were an intentional crime committed by the insured."
In Gray v. Barr (supra) an insured had been held liable for injuries caused by discharging a shotgun when confronting his wife's lover. He claimed indemnity under a policy of insurance covering him for personal liability for accident. He had been charged with manslaughter of the wife's lover but had been acquitted. This court unanimously held that in such a case he was not entitled to indemnity. The first ground of its decision was that the incident was not an accident within the meaning of the policy, but the court went on to consider whether the claim to indemnity was barred by public policy. Lord Denning drew the distinction between manslaughter which could be categorised as "motor manslaughter" on the one hand, and manslaughter in which the conduct is wilful and culpable on the other. He said at page 569:
"If the death of Mr. Gray was caused by the deliberate act of Mr. Barr in going up the stairs with a loaded gun, it was no accident, and it would, in any case, be against public policy to allow him to recover indemnity for the consequences of it."
Salmon L.J. thought that the cases which permitted an insured convicted of manslaughter for reckless and drunken driving to recover indemnity under a policy of insurance might be "sui generis". He went on on page 582:
"In any event, although motor cars have sometimes been called lethal weapons, these cases are not in my view akin to the cases in which injuries are caused in the course of unlawfully threatening a man with a loaded gun. Public policy is not static ... In any event, threatening violence with a loaded gun would, I am sure, now be generally regarded as much more shocking and necessary to be deterred than what the unfortunate Major Rowlandson did in Beresford's case. I am confident that, in any civilised society, public policy requires that anyone who inflicts injuries in the course of such an act shall not be allowed to use the courts of justice for the purpose of enforcing any contract of indemnity in respect of his liability in damages for causing injury by accident."
Lord Denning at page 568 drew attention to the distinction between manslaughter in which the death of another may be the result simply of a reckless act, and manslaughter in which the death arises from an unlawful and dangerous act done with the intention of frightening or harming someone or when the actor knows that it is likely to frighten or harm someone and nevertheless goes on and does it regardless of the consequences.
I have quoted at some length the considerations which have led courts to refuse on grounds of public policy to permit a person to enforce a claim to indemnity for they illustrate to my mind how the courts have adjusted the application of the maxim to changing social conditions and in particular to the policy underlying the Road Traffic Acts. They establish, I believe, that it is the conduct of the person seeking to base his claim upon an unlawful act which is determinative of the application of the maxim.
Before leaving the question of public policy as it has been applied in cases of indemnity or contribution, it is pertinent to point out that when in 1935 the rule in Merryweather v. Nixon was finally abolished by the Law Reform (Married Women and Tortfeasors Act) 1935 a tortfeasor liable in respect of damage suffered by any person as a result of a tort (whether a crime or not) could recover contribution from any other tortfeasor liable in respect of the same damage. The rule was abolished as a result of the third interim report of the Law Revision Committee which expressly considered whether an exception ought to be made in the case where a tort is also a crime. In its report, 1934 Command Paper 4637, para. 10, the Committee said:
"At first sight public policy might appear to demand that such an exception should be made at any rate when the crime is wanton and deliberate and not merely the result of inadvertence. We have, however, come to the conclusion that it is impracticable to draw such a distinction and that any attempt to exclude from our recommendation torts which are also crimes would produce anomalies (such as would result from the fact that libel is a crime while slander is not or that negligent driving may amount to felony) and uncertainties which it would be undesirable to introduce. Accordingly our recommendation is made without qualification."
In defence to a claim in tort based on negligence or breach of statutory duty, public policy based upon the rule ex turpi causa non oritur actio has not often been raised. It was raised in National Coal Board v. England [1954] AC 403. A mineworker who was injured in an explosion of a detonator in a colliery at Aberdare claimed damages for breach of statutory duty by the shotfirer who fired the shot without first ascertaining that all persons in the vicinity had taken shelter. The plaintiff had aided and abetted the shotfirer by coupling up the charges when he was not supposed to do so. It was contended that he could not recover because of his own illegal acts. Although the House of Lords had little difficulty in rejecting this contention, Lord Asquith said at page 428:
"Cases where an action in tort has been defeated by the maxim are exceedingly rare. Possibly a party to an illegal prize fight who is damaged in the conflict cannot sue for assault. ... But it seems to me in principle that the plaintiff cannot be precluded from suing simply because the wrongful act is committed after the illegal agreement is made and during the period involved in its execution. The act must, I should have supposed, at least be a step in the execution of the common illegal purpose. If two burglars, A and B, agree to open a safe by means of explosives, and A so negligently handles the explosive charge as to injure B, B might find some difficulty in maintaining an action for negligence against A. But if A and B are proceeding to the premises which they intend burlariously to enter, and before they enter them, B picks A's pocket and steals his watch, I cannot prevail on myself to believe that A could not sue in tort (provided he had first prosecuted B for larceny). The theft is totally unconnected with the burglary. There is, however a surprising dearth of authority on this point."
The case in which this question arose directly was Ashton v. Turner and Anr. [1981] l QB at page 137. The plaintiff was one of three young men who after an evening's drinking used a motor car belonging to one of them on a joint enterprise of burglary. Having stolen some radios and set off the alarm, they tried to make their escape in the car which, due to the negligent driving of the defendant, crashed and the plaintiff sustained injury. He sought to recover damages from the driver. Ewbank J. dismissed the plaintiff's claim holding that as a matter of public policy the law would not recognise a duty of care owed by one participant in a crime to another. He held in the alternative that, even if a duty of care was owed, the plaintiff had willingly accepted as his the risk of negligence and injury resulting from it.
In arriving at this conclusion Ewbank J. was much influenced by two decisions in the Courts of Australia: Godbolt v. Fittock [1963] 63 S.R.(N.S.W.) 617 and Smith v. Jenkins [1970] 44 ALJR 78. In the latter case the High Court of Australia held that no action would lie by the passenger in a motor vehicle to recover damages for injuries sustained by the careless driving of the vehicle when the passenger and driver were at the time of the accident participating jointly in the offence of unlawfully using the motor vehicle. Although all the judges were agreed that the plaintiff could not recover, there was a difference of opinion about the legal basis for the decision. Kitto J. and Walsh J. considered that in the circumstances public policy would not recognise a right of action. Barwick C.J., Windeyer J. and Owen J. considered that the basis for dismissing the claim should be that the law would not hold that a duty of care arose out of the relationship of joint participants in an illegal enterprise. ^
The question again came before the High Court of Australia in 1977 in the case of Jackson v. Harrison [1977-1978] 138 CLR 438. The respondent was injured when he was travelling as a passenger in a motor car driven by a driver he knew to be disqualified. The two of them were jointly participating in an offence under the Motor Vehicles Act 1959. The majority distinguished the case of Smith v. Jenkins (supra) and held that the passenger was not disabled from recovering damages on the ground that the illegality did not bear on the standard of care reasonably to be expected of the driver. Barwick C.J. dissented and in the course of his judgment he said:
"It seems to me that where there is a joint venture to do an act punishable by fine or imprisonment, no narrow or pedantic view should be taken of the nature and scope of the arrangement between the parties when applying the principle of Smith v. Jenkins and that the consequence to one of the participants of any act done in furtherance of the arrangement or in obtaining the benefit of having carried it out should not give rise to a cause of action. The relationship of those participants should not be regarded as giving rise to relevant rights and duties. The public policy which the denial of a cause of action in such circumstances is designed to serve is not satisfied if the miscreant is not denied rights against his co-participant in the commission of the offence in respect of acts related to that commission."
Mason J. said:
"If a joint participant in an illegal enterprise is to be denied relief against a co-participant for injury sustained in that enterprise, the denial of relief should be related not to the illegal character of the activity but rather to the character and incidence of the enterprise and to the hazards which are necessarily inherent in its execution. A more secure foundation for denying relief, though more limited in its application - and for that reason fairer in its operation - is to say that the plaintiff must fail when the character of the enterprise in which the parties are engaged is such that it is impossible for the court to determine the standard of care which is appropriate to be observed."
Jacobs J. based his conclusion on the fact that the type of offence in which they were jointly engaged did not bear at all on the standard of care which was to be expected of the driver in the circumstances.
In another jurisdiction nearer home in Winnick v. Dick [1984] Scots Law Times page 185, the Second Division of the inner House also considered the question whether public policy would preclude an action for damages by a passenger in a motor car which was being driven by a driver with whom he had been drinking all day and knew that he was drunk. Lord Hunter at page 189 said:
"..... either because in law one joint participant would not in such circumstances be held to owe a duty of care to the other joint participant or because on grounds of public policy, the court would not countenance nor adjudicate on a claim by one such joint participant against another I see no reason why a Scottish court should not on the basis of one or other or both of these principles, arrive in appropriate circumstances at a result the same as that reached in several cases in other jurisdictions, to which we were referred, see, e.g. Smith v. Jenkins and Ashton v. Turner."
Lord Wheatley, however, felt that such a defence would have far reaching effects and could give rise to delicate decisions on what is embraced in 'crime' in this context and he felt that in the circumstances of that case, since the pleadings did not raise the issue with clarity, the point should not be decided.
In opening his appeal on behalf of the appellant, Mr. Peppitt drew attention to the case of Saunders v. Edwards [1987] 1 WLR 1116. This court, he said, had approved a test for determining whether in the circumstances the court would decline to allow the plaintiff to recover in cases of illegality. It was based upon a helpful review of cases by Hutchison J. in Thackwell v. Barclays Bank plc [1986] 1 AER 676. The plaintiff in that case was a party to a fraudulent scheme under which a cheque had been made payable to him. The plaintiff's signature endorsing the cheque to a third party was forged and in reliance on the forgery the bank credited the third party. The plaintiff sued the bank for conversion. In defence the bank relied on the maxim "ex turpi causa". The test applied by Hutchison J. in that case and approved by the court in Saunders v. Edwards -
"... involved the court looking at the quality of the illegality relied on by the defendant and all the surrounding circumstances, without fine distinctions, and seeking to answer two questions: first, whether there had been illegality of which the court should take notice and, second, whether in all the circumstances it would be an affront to the public conscience if by affording him the relief sought the court was seen to be indirectly assisting or encouraging the plaintiff in his criminal act."
Mr. Peppitt relied particularly on the passage in the judgment of Bingham L.J. where he said:
"Where issues of illegality are raised, the courts have (as it seems to me) to steer a middle course between two unacceptable positions. On the one hand it is unacceptable that any court of law should aid or lend its authority to a party seeking to pursue or enforce an object or agreement which the law prohibits. On the other hand, it is unacceptable that the courts should, on the first indication of unlawfulness affecting any aspect of a transaction, draw up its skirts and refuse all assistance to the plaintiff, no matter how serious his loss nor how disproportionate his loss to the unlawfulness of his conduct."
Bingham L.J. went on to point out that the cases which had been referred to in the judgments of Kerr L. J. and Nicholls L. J. were valuable both for the statements of principle which they contained and for the illustrations which they give of the courses which courts had in fact steered in different factual situations. It was his view that, on the whole, the courts had tended to adopt a pragmatic approach to these problems, seeking where possible to see that genuine wrongs were righted so long as the court did not thereby promote or countenance a nefarious object or bargain which it was bound to condemn. So Mr. Peppitt argued on behalf of the appellant that the court should take a pragmatic approach and, in deciding whether the public conscience would be shocked by allowing the appellant to recover the damages in the circumstances of this case, the court should have regard to the serious injuries which he had suffered and from which he would suffer for the rest of his life and should regard the public conscience as being as greatly shocked by the idea that he would recover no compensation for those injuries as it would be by the thought of allowing him to recover by basing his claim on the unlawful escapade in which he suffered the injuries.
The particular sphere of social behaviour and activity arising from the use of motor vehicles in modern conditions is one in which Parliament has been continuously active during this century. It has produced codes designed to regulate and control the behaviour of drivers and for the construction, maintenance and use of vehicles for the purpose of securing the safety of road users. It has also produced a code of requirements for motor insurance designed to make provision for compensating those who suffer injury from the use of vehicles on the road. Thus it seems to me that the primary source of public policy in this sphere must be the Acts of Parliament themselves. That policy is properly supplemented by taking into account the reasons given by the courts of this country for refusing to enforce rights based on conduct which has been regarded as sufficiently anti-social and contrary to the policy of the Acts. I would regard decisions in other jurisdictions which may have different social attitudes as of but secondary guidance, though of course entitled to respect and consideration. Although it is part of that policy that passengers carried on or in vehicles who sustain injury should be compensated, it is clear that Parliament did not regard it as essential that the driver of a vehicle who by his own fault injures himself should be required to insure against that risk. Parliament did however provide that, of the various offences specifically relating to the use of motor vehicles, causing death by reckless driving, reckless driving itself and driving when under the influence of drink and drugs were to be regarded as among the most serious of offences and were to be punishable by imprisonment. Parliament did not expressly provide that a passenger who took part with the driver in the commission of such offences should not be entitled to the benefit of the provisions designed to secure that he should receive compensation.
The policy underlying the provisions for compulsory insurance for passengers and others injured in road accidents is clearly one intended for their benefit: it does not follow that if an offence is committed jointly by the driver and passenger of a kind not regarded as so serious as to disentitle the driver from claiming indemnity for the benefit of an innocent passenger, the passenger who is a joint offender can, subject to questions of contributory negligence, recover compensation from the driver. If however the offence, or series of offences, is so serious that it would preclude the driver on grounds of public policy from claiming indemnity under a policy required to be effected under the Act for the benefit of a passenger, that public policy would in my judgment also preclude the passenger jointly guilty of that offence from claiming compensation.
On the facts found by the learned judge in this case the appellant was playing a full and active part in encouraging the young rider to commit offences which, if a death other than that of the young rider himself had occurred, would have amounted to manslaughter. And not just manslaughter by gross negligence on the judge's findings. It would have been manslaughter by the commission of a dangerous act either done with the intention of frightening other road users or when both the appellant and the young rider were aware or but for self induced intoxication would have been aware that it was likely to do so and nevertheless they went on and did the act regardless of the consequences. Thus on the findings made by the learned judge in this case I would hold that the appellant is 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. On a question on which, as Bingham L.J. said, the courts have tended to adopt a pragmatic approach, I do not believe that it is desirable to go further in an attempt to categorise the degree of seriousness involved in offences which will not preclude recovery of compensation. I would, however, add that the public attitude to driving a motor vehicle on a road when under the influence of drink has, I believe, changed markedly with the increasing number of serious accidents and the dreadful injuries which are the consequence of such driving. The public conscience is ever increasingly being focussed not only on those who commit the offence but, in the words of recent publicity, those who ask the driver to drink and drive.
The second ground upon which the learned judge held that the plaintiff's claim failed was because in the circumstances of the case the law would not recognise the existence of a duty of care owed by the rider to the appellant. As this ground is also based on public policy, it is not I think in the circumstances of this case significant. That both the appellant and rider owed a duty to other road users to exercise reasonable care is clear. I am not convinced of the wisdom of a policy which might encourage a belief that the duty to behave responsibly in driving motor vehicles is diminished even to the limited extent that they may in some circumstances not owe a duty to each other, particularly when those circumstances involve conduct which is highly dangerous to others.
As to the defence raised that the appellant voluntarily undertook to run the risk of injury by taking part in such a foolhardy, risky and illegal activity, I would have been prepared to say that it was obvious from the description of the appellant's behaviour whilst he was participating that he had done so. However the learned judge accepted that the effect of section 148(iii) of the Road Traffic Act was that any agreement or understanding that the risk of injury would be the appellant's was of no effect.
Before the enactment of the Motor Vehicles (Passenger Insurance) Act 1971, a policy of insurance required to be effected under the provisions of the Road Traffic Act 1960 was not required to cover:
"a) Liability in respect of the death of, or bodily injury to, persons being carried in or upon, or entering or getting onto or alighting from, the vehicle at the time of the occurrence of the event out of which the claims arise"
unless such passengers were carried in a vehicle for hire or reward or in pursuance of a contract of employment. It was this provision and proviso which were repealed by section 1 of the Motor Vehicle (Passenger Insurance) Act 1971. At the same time in subsection (2) it was provided:
"If any other person is carried in or upon the vehicle while the user is so using it, any antecedent agreement or understanding between them (whether intended to be legally binding or not) shall be of no effect so far as it purports or might be held
(a) to negative or restrict any such liability of the user in respect of persons carried in or upon the vehicle as is required by section 203 of that Act to be covered by a policy of insurance; or
(b) to impose any conditions with respect to the enforcement of any such liability of the user; and the fact that a person so carried has willingly accepted as his the risk of negligence on the part of the user shall not be treated as negativing any such liability of the user. For the purposes of this subsection ... the reference to an antecedent agreement is to one made any time before the liability arose."
This is the provision now to be found in section 1483 of the Road Traffic Act 1972. It is not at first sight easy to see a distinction between an understanding between the driver and passenger, whether legally binding or not, which is made at any time before the liability arises and the fact that the person so carried has willingly accepted as his the risk of negligence on the part of the user. If the former is of no effect, it would not negative any liability of the user. I can only think that the draughtsman was drawing a distinction between agreements or understandings which negative or restrict liability by their terms on the one hand and, on the other, facts which would give rise to the defence of volenti no fit injuria which but for the provision would be taken to negative the liability which is required to be recovered under a policy of insurance under section 145. That is to say, any liability which may be incurred by the driver in respect of death or bodily injury to any person caused by or arising out of the use of the vehicle on the road. I think therefore that the words of section 148(3) clearly mean that it is no longer open to the driver of a motor vehicle to say that the fact of his passenger travelling in a vehicle in circumstances in which for one reason or another it could be said that he had willingly accepted a risk of negligence on the driver's part relieves him of liability for such negligence. I am supported in this view by the decision of the Inner House of the Court of Session in Winnick v. Dick [1984] SLT and by the opinion of Lord Hunter and Lord Wheatley in that case. I do not believe that there is any difference of principle in the application of the doctrine of volenti in Scotland and England which would lead to a different result in England. This is a conclusion at which I arrive with some relief because the rights of a passenger under section 148 of the Road Traffic Act, which applies to Scotland as well as to England, ought not to suffer a change on his journey by car to Scotland as it crosses the border.
Although it is unnecessary in view of the decision to which I have come to express an opinion on the learned judge's decision that the appellant should have his damages reduced to nil by reason of his own fault, I would say that I was quite unpersuaded by the argument for the respondent that this was a correct apportionment of responsibility. Although the court when apportioning liability between two tortfeasors is given express power under section 6 of the Law Reform (Married Women and Tortfeasors) Act 1935 to exempt a person from liability to make contribution, or to direct that a contribution to be recovered from any person liable in respect of the damage should amount to a complete indemnity, it seems to me that the wording of section 1 of the Law Reform (Contributory Negligence) Act 1945 is incapable of a similar interpretation. Section 1 begins with the premise that the person suffers damage as a result partly of his own fault and partly of the fault of any other person or persons. Thus before the section comes into operation, the court must be satisfied that there is fault on the part of both parties which has caused damage. It is then expressly provided that the claim shall not be defeated by reason of the fault of the person suffering the damage. To hold that he is himself entirely responsible for the damage effectively defeats his claim. It is then provided that the damages recoverable in respect thereof (that is the damage suffered partly as a result of his own fault and partly the fault of any other person) shall be reduced. It therefore presupposes that the person suffering the damage will recover some damage. Finally reduction is to be to such extent as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage. To hold that the claimant is 100% responsible is not to hold that he shared in the responsibility for the damage.
For these reasons I would not support the judge's conclusion. In the circumstances of this case in which arguments can be advanced on the question of blameworthiness which might suggest a greater degree of fault on the older as opposed to the younger boy, or as to the rider as opposed to the passenger, I would not myself take any view which attributed a greater share of responsibility to one or the other. They participated equally in the illegal and dangerous escapade regardless of the safety of others and of themselves and had they been jointly charged with the criminal offences they were jointly committing they would have been charged and convicted as principals.
Subject to the question of their ages, I doubt whether any distinction would have been drawn for the purpose of any sentence imposed upon them. In the circumstances, had the appellant been entitled to damages, I would have held they should have been reduced by 50%. For the reasons I have given, however, I would dismiss the appeal.
LORD JUSTICE BALCOMBE: I have had the advantage of reading in draft the judgments of Beldam and Dillon L.JJ. The facts are fully set out in the judgment of Beldam, L.J. and I need not repeat them.
Three issues arise on this appeal and cross-appeal:
(1) Whether the joint illegal enterprise upon which the appellant plaintiff and the deceased Hunt were engaged at the time of the accident was such as to preclude the plaintiff from being able to sue Hunt's representatives for damages?
(2) Whether any defence of volenti non fit injuria which might otherwise be available is excluded by section 148(3) of the Road Traffic Act 1972.
(3) Whether the plaintiff was one hundred per cent contributorily negligent.
I consider these issues separately below.
1. The joint illegal enterprise.
In a case of this kind I find the ritual incantation of the maxim "ex turpi causa non oritur actio" more likely to confuse than to illuminate. I prefer to adopt the approach of the majority of the High Court of Australia in the most recent of the several Australian cases to which we were referred - Jackson v. Harrison [1978] 138 C.L.R. 438. That is to consider what would have been the cause of action had there been no joint illegal enterprise - that is the tort of negligence based on the breach of a duty of care owed by Hunt to the plaintiff - and then to consider whether the circumstances of the particular case are such as to preclude the existence of that cause of action. I find myself in complete agreement with the following passage from the judgment of Mason J. in Jackson v. Harrison at pp.455-6:
"If a joint participant in an illegal enterprise is to be denied relief against a co-participant for injury sustained in that enterprise, the denial of relief should be related not to the illegal character of the activity but rather to the character and incidents of the enterprise and to the hazards which are necessarily inherent in its execution. A more secure foundation for denying relief, though more limited in its application - and for that reason fairer in its operation - is to say that the plaintiff must fail when the character of the enterprise in which the parties are engaged is such that it is impossible for the court to determine the standard of care which is appropriate to be observed. The detonation of an explosive device is a case of this kind. But the driving of a motor vehicle by an unlicensed and disqualified driver, so long as it does not entail an agreement to drive the car recklessly on the highway (see Bondarenko v. Sommers [(1968) 69 S.R. (N.S.W.) 269], stands in a somewhat different position. In this case the evidence indicates that the participants contemplated that the vehicle would be driven carefully -an accident or untoward event might, as in fact it did, lead to discovery of their breach of the law. It is not suggested that either party lacked the experience or ability to drive carefully - that they were unlicensed was due to their having been disqualified as a result of earlier traffic offences.
... A plaintiff will fail when the joint illegal enterprise in which he and the defendant are engaged is such that the court cannot determine the particular standard of care to be observed. It matters not whether this in itself provides a complete answer to the plaintiff's claim or whether it leads in theory to the conclusion that the defendant owes no duty of care to the plaintiff because no standard of care can be determined in the particular case."
The facts of the earlier case in the High Court of Australia of Smith v. Jenkins [1970] 119 C.L.R. 397 are set out in the judgment of Dillon L.J. and I need not repeat them. Of those facts Jacob J. said in Jackson v. Harrison (supra) at page 460:
"It appears to me that these facts lie at the basis of the conclusion that there was a relevant joint criminal enterprise. It was a jaunt, an escapade, a joyride even though of a most serious kind from the beginning to the end. How could a standard of care be determined for such a course of criminal activity? I doubt that the decision would have been the same if the accident had occurred days, weeks or months later when the circumstances of the taking of the vehicle had ceased to have any significant relationship to the manner in which the vehicle was being used."
This approach seems to me to enable the court to differentiate between those joint enterprises which, although involving a contravention of the criminal law and hence illegal - e.g. the use of a car by an unlicensed and disqualified driver as in Jackson v. Harrison (supra), are not such as to disable the court from determining the standard of care to be observed, and those, such as the use of a get-away car as in Ashton v. Turner [1981] Q.B. 137, where it is impossible to determine the appropriate standard of care.
Mr. Peppitt submitted that, however reprehensible the plaintiff's conduct may have been, his culpability involved neither dishonesty nor violence nor any moral turpitude such as is inherent in crimes of dishonesty or violence. Although an assessment of the degree of moral turpitude becomes unnecessary if one adopts, as I do, the approach of the majority of the High Court of Australia in Jackson v. Harrison (supra), I would not wish it to be thought that I accept this submission. It was only by good fortune that no innocent third party was injured by this disgraceful piece of motorcycle riding, in which the judge found on the facts that the plaintiff was an active participant. If moral turpitude were relevant, here was moral turpitude of a high degree.
However, I prefer to found my judgment on the simple basis that the circumstances of this particular case were such as to preclude the court from finding that Hunt owed a duty of care to the plaintiff.
I agree with Dillon L.J. and for the reasons which he gives, that section 148(3) of the road Traffic Act 1972 does not affect the position under this head.
2. Volenti and section 148(3).
Mr. Bamett sought to persuade us that the application of the 'violenti' doctrine is to extinguish liability and, if liability has already been extinguished, there is nothing on which section 148(3) of the Road Traffic Act 1972 can bite. As Dillon L.J. says, if this argument were to be accepted, it would mean that section 148(3) could never apply to a normal case of volenti, although that was clearly its intention. For the reasons given by the judge below, by both Beldam and Dillon L.JJ. and by the Inner House of the Court of Session in Winnick v. Dick [1984] SLT 185, I agree that the effect of section 148(3) is to exclude any defence of volenti which might otherwise be available. On this issue I agree with the judge below that Ewbank J's. decision in Ashton v. Turner (supra) at page 148A-B was incorrect.
3. Contributory Negligence.
I agree that the judge's finding that the plaintiff was one hundred per cent contributarily negligent is logically unsupportable and, to use his own words, "defies common sense". Such a finding is equivalent to saying that the plaintiff was solely responsible for his own injuries, which he clearly was not. For my part I prefer to express no opinion on how the liability should have been apportioned, had that been material.
I agree that this appeal should be dismissed.
LORD JUSTICE DILLON: I gratefully accept the account of the facts of this case contained in the judgment of Beldam L.J.
On those facts the plaintiff accepts that if he is entitled to recover anything from the first defendants his award must be subject to a significant deduction for contributory negligence. The judge's finding that the second defendant was not at fault is not challenged by anyone. The first defendants say however that the plaintiff is not entitled to recover anything at all, and the case was put in the court below on one or other or both of the well-known Latin maxims ex turpi causa and volenti non fit injuria.
The judge, in a very careful reserved judgment, held that because of section 148(3) of the Road Traffic Act 1972 the maxim volenti could not provide the first defendants any defence, but he also held that the plaintiff was not entitled to recover anything from the first defendants on the grounds of ex turpi causa and further that the plaintiff was one hundred percent contributorily negligent.
The judge's view on the extent of the plaintiff's contributory negligence was that the plaintiff and the deceased boy Mark Hunt were jointly responsible for the reckless driving of the motor cycle. So both were responsible for causing the accident and, on the judge's view, "logically at least" each was one hundred percent to blame. With all respect I do not find that logical nor has the judge approached the question correctly. In the context of the plea of contributory negligence in the present case, the judge was required to apportion liability for the accident as between the deceased and the plaintiff. He does not effect any apportionment by saying that each was 100 percent to blame. If they were equally to blame the apportionment would be 50 percent to each. On the facts it would be impossible to apportion more than 50 percent liability to the pillion passenger, the plaintiff, vis a vis the driver, the deceased.
Another matter which can be disposed of quite shortly is the issue of volenti. We have had argument as to whether the doctrine of volenti requires it to be shown, as Lord Denning M.R. said in Nettleship v. Weston [1971] 2 Q.B.691 at 701 D-E, that the plaintiff had voluntarily agreed to waive any claim for any injury that might befall him or whether the application of that doctrine is that it should be implied, from the mere acceptance by the plaintiff of such an obvious risk, that there was no duty of care. I find it unnecessary to explore this, since on any view the volenti defence is, in my judgment, precluded by section 148(3) of the 1972 Act.
Section 148(3) (now replaced by section 149 of the Road Traffic Act 1988 which has entirely the same effect) provides as follows:
"(3) Where a person uses a motor vehicle in circumstances such that under section 143 of this Act there is required to be in force in relation to his use of it such a policy of insurance or security as is mentioned in subsection (1) of that section, then, if any other person is carried in or upon the vehicle while the user is so using it, any antecedent agreement or understanding between them (whether intended to be legally binding or not) shall be of no effect so far as it purports or might be held -
(a) to negative or restrict any such liability of the user in respect of persons carried in or upon the vehicle as is required by section 145 of this Act to be covered by a policy of insurance; or
(b) to impose any conditions with respect to the enforcement of any such liability of the user;
and the fact that a person so carried has willingly accepted as his the risk of negligence on the part of the user shall not be treated as negativing any such liability of the user.
For the purposes of this subsection references to a person being carried in or upon a vehicle include references to a person entering or getting on to, or alighting from, the vehicle, and the reference to an antecedent agreement is to one made at any time before the liability arose."
On that wording, the fact that the plaintiff has willingly - volens - accepted as his the risk of negligence on the part of the deceased cannot be treated as negativing the liability of the deceased, and the defence of volenti cannot apply. The Court of Session so held in Winnik v. Dick [1984] SLT 185 – see especially per Lord Hunter at 190, right-hand column to 191 -and I respectfully agree with them. I see no significant difference between the English and Scottish doctrines of volenti, (taking the latter as explained by Lord Kilbrandon in McCaig v. Lanqan [1964] SLT 121), and I would reject arguments for the first defendants which would have the effect that the provisions of section 148(3) could never apply to a "normal" case of volenti.
The much more difficult aspect of this appeal arises from the first defendants' claim, which the judge upheld, that the plaintiff is barred from recovering anything by the application of the maxim "ex turpi causa".
It so happens that the cases where a passenger has been injured by the "negligence" of the driver when the vehicle in which the passenger was being carried was being used for an illegal purpose in which the passenger was an accomplice have come before the High Court of Australia more often than before the Appellate Courts in this country. The factual situations in which the Australian Courts have held that a passenger injured by the "negligence" of the driver in the course of a joint criminal enterprise cannot recover damages from the driver are clear. But the reasoning by which the Australian Courts have reached their conclusions from common law principles is, to me, very much less clear, not least because of the extent to which the judgments in one particular decision of the High Court, Smith v. Jenkins [1970] 44 AL.J.R.78; 119 C.L.R.397 have been reinterpreted in later decisions of the High Court. There is also the problem of how the Australian approach, purportedly based on common law principles, is reconcilable with certain recent developments in the English Courts, also purportedly based on common law principles, in cases to which the judge below was not referred.
It is clear for a start that the fact that a plaintiff was engaged in an illegal activity which brought about his injury does not automatically bring it about that his claim for damages for personal injury as a result of the negligence of the defendant must be dismissed. See e.g. Baker v. Market Harborouqh Industrial Co-Operative Society Ltd. [1953] 1 WLR 1472 where, as in many other cases, the court apportioned liability for a road accident which had been caused by each driver, independently, driving negligently and without due care and attention. See also the judgment of Latham C.J. in Henwood v Municipal Tramways Trust [1938] 60 CLR 438. In that case a passenger on a tram, feeling ill, lent out of a window of the tram to be sick, and was killed because his head was struck in succession by two steel standards erected by the tram company to carry the overhead cables which supplied the current for the trams. It was an offence punishable by a fine under a by-law having statutory force for any passenger in a tram to lean out of the window. But it was nonetheless held that the parents of the deceased could bring an action for negligence in respect of his death, and seemingly he himself could have brought the action if he had merely been injured and survived, on the grounds that the tram company had failed to take sufficient steps to protect passengers against a foreseeable, and indeed known, danger. Latham J. said at page 446:
"But there are other considerations which are, in my opinion, sufficiently weighty to displace those to which I have referred. In the first place, there is no general principle of English law that a person who is engaged in some unlawful act is disabled from complaining of injury done to him by other persons, either deliberately or accidentally. He does not become caput lupinum. Other persons still owe to him a duty to take care, the extent of that duty being determined by the circumstances of the case which create the duty. The person who is injured in a motor accident may be a child playing truant from school, an employee who is absent from work in breach of his contract, a man who is loitering upon a road in breach of a by-law, or a burglar on his way to a professional engagement - but none of these facts is relevant for the purpose of deciding the existence or defining the content of the obligation of a motor driver not to injure them. Thus, it cannot be held that there is any principle which makes it impossible for a defendant to be liable for injury brought about by his negligence simply because the plaintiff at the relevant time was breaking some provision of the law.
The general principle stated will probably not be questioned, ..."
So much is common ground between the parties, but it raises questions which have been the subject of discussion in English and Australian judgments as to whether a line can be drawn between different grades of illegality, and whether there is a distinction, and if so, on what ground, between the ordinary case of negligence, albeit involving a criminal act, such as the two last cited, and cases where a passenger sues the driver for injuries sustained by reckless driving at the time of the accident when they were both engaged in a joint criminal enterprise of which the reckless driving was an inherent part.
Mr. Peppitt Q.C. for the plaintiff founds on certain recent authorities in this country which he relied on as establishing a "conscience test" to be applied in cases of illegality.
The starting point is the judgment of Hutchison J. in Thackwell v. Barclays Bank [1986] 1 ALL ER 676. In that case the plaintiff claimed damages from the bank for having paid a cheque drawn in favour of the plaintiff to a third party in reliance on a forgery of the plaintiff's signature on an endorsement of the cheque. The claim was rejected on the ground that the cheque represented the proceeds of a fraud on a fourth party, to which the plaintiff, the drawer of the cheque and the forger of the endorsement were all parties. Hutchison J. at 689 C-D treated the case as one in which public policy would prevent the plaintiff suing just as it would prevent a burglar from whom the stolen goods were snatched by a third party just as the burglar left the victim's house from maintaining an action in conversion against the third party. The judge in reaching that conclusion seems to have accepted a submission from counsel for the defendants that there were two distinct but related lines of authority running through the cases on illegality, the second of which laid down the "conscience test". That test was put as follows at 687 D-E:
"That test, he suggested, involved the Court looking at the quality of the illegality relied on by the defendant and all the surrounding circumstances, without fine distinctions, and seeking to answer two questions: first whether there had been illegality of which the Court should take notice and, second, whether in all the circumstances it would be an affront to the public conscience if by affording him the relief sought the Court was seen to be indirectly assisting or encouraging the plaintiff in his criminal act."
The context in which that submission was put forward in Thackwell v. Barclays Bank seems to have been one of the proximity of the illegality to the matters of which complaint was made in the action. There is authority in Singh v. Ali [1960] AC 167 that a person who has acquired property under an illegal contract and has been using it without a permit can nonetheless maintain an action for damages for conversion against a person, even the vendor of the property, who subsequently - on the facts some three or four years later - wrongly deprives him of that property. The suggestion seems to have been in Thackwell v. Barclays Bank that it would be an affront to the public conscience to allow one thief to maintain an action because a second of the thieves had stolen the first's share in the course of the division of the swag.
The conscience test was approved by this court in Saunders v. Edwards [1987] 1 WLR 1116. That was again a case of the proximity, or relevance, of the illegality to the matters of which the plaintiff was complaining. The plaintiff claimed damages for fraudulent misrepresentation which had induced him to purchase a flat from the defendant. The defendant sought unsuccessfully to defend himself by asserting that the contract for the sale of the flat, and presumably also the conveyance, were tainted with illegality in that in the apportionment of the purchase price in the contract between chattels and the flat itself the amount attributable to the chattels had been fraudulently inflated, and the amount attributable to the flat had been correspondingly reduced, in order to reduce the stamp duty payable to the Revenue. This court applied Hutchison J's test, to which Nicholls LJ at 1132H added at the end of the formulation the words "or encouraging others in similar criminal acts".
Saunders v. Edwards was, it seems to me, a case where the alleged illegality over the stamp duty apportionment was independent of, or unrelated to, the wrong in the way of fraudulent misrepresentation for which the plaintiff was suing. Kerr L.J. decided the case, however, on the basis, at 1127 C-E, that the cases "show that there are no rigid rules for or against the ex turpi causa defence" and that the cases "show that the conduct and relative moral culpability of the parties may be relevant in determining whether or not the ex turpi causa defence falls to be applied as a matter of public policy". Bingham L.J. used rather different language at 1134 C-E where he said:
" ... I think that on the whole the Courts have tended to adopt a pragmatic approach to these problems, seeking where possible to see that genuine wrongs are righted so long as the Court does not thereby promote or countenance a nefarious object or bargain which it is bound to condemn. Where the plaintiff's action in truth arises directly ex turpi causa, he is likely to fail ..... Where the plaintiff has suffered a genuine wrong to which allegedly unlawful conduct is incidental, he is likely to succeed."
That passage was adopted by Kerr L.J. in giving the leading judgment of this court in Euro-Diam Ltd. v. Bathurst [1988] 1 Ll Rep 228 at 233. The latter part of it is sufficient to cover the decision in Saunders v. Edwards.
I find a test that depends on what would or would not be an affront to the public conscience very difficult to apply, since the public conscience may well be affected by factors of an emotional nature, e.g. that these boys by their reckless and criminal behaviour happened to do no harm to anyone but themselves. Moreover if the public conscience happened to think that the plaintiff should be compensated for his injuries it might equally think that the deceased driver of the motor cycle, had he survived and merely been injured, ought to be compensated, and that leads into the much-debated question whether there ought to be a universal scheme for compensation for the victims of accidents without regard to fault.
Beyond that, appeal to the public conscience would be likely to lead to a graph of illegalities according to moral turpitude, and I am impressed by the comments of Mason J. in Jackson v. Harrison [1978] 138 CLR 438 at 455 where he said:
"... there arises the difficulty, which I regard as insoluble, of formulating a criterion which would separate cases of serious illegality from those which are not serious. Past distinctions drawn between felonies and misdemeanours, malum in se and malum prohibitum, offences punishable by imprisonment and those which are not, non-statutory and statutory offences, offer no acceptable discrimen."
Bingham L.J's dichotomy between cases where the plaintiff's action in truth arises directly ex turpi causa and cases where the plaintiff has suffered a genuine wrong to which allegedly unlawful conduct is incidental avoids this difficulty, in that it does not involve grading illegalities according to moral turpitude.
In the Australian courts it was held by the High Court of Australia in Jackson v. Harrison that the maxim ex turpi causa is a maxim of the law of contract which cannot apply in the law of tort. This however is, as it seems to me, a matter of terminology and in the present case rather a red herring. The most commonly cited anglicisation of the maxim is that of Lord Mansfield in Holman v. Johnson [1775] 1 Cowp 341 at 343 that "No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act". Whether that is or is not -see Windeyer J. in Smith v. Jenkins - a correct translation of the maxim is now beside the point since it has been applied continuously as the law of England for over 200 years. Moreover it has been so applied not only in cases where the cause of action has been laid in contract, but also in cases, such as Chettiar v. Chettiar [1962] AC 294 where it was held that a person who was party to an illegal transaction could not be heard to claim that that transaction had given rise to an enforceable trust in his favour. See also Re Emery's Investments Trust [1959] Ch 410.
That a defence of illegality can be pleaded to a case founded in tort is, in my judgment, clear, whether or not the defence is correctly called "ex turpi causa". Thackwell v. Barclays Bank is one instance. Another is Murphy v. Culhane [1977] QB 94. There the plaintiff as the widow and administratrix of the estate of her deceased husband claimed damages from the defendant on the ground that the defendant had unlawfully assaulted the deceased by beating him about the head with a plank by which assault he was killed. The plaintiff did not have to plead any illegality as part of her case, but on a preliminary issue the defendant was allowed by this court to plead that the assault alleged occurred during and as part of a criminal affray initiated by the deceased and others with the joint criminal purpose of assaulting and beating the defendant. Lord Denning considered that a man who took part in a criminal affray might well be said to have been guilty of such a wicked act as to deprive himself of a cause of action; alternatively, even if the plaintiff were entitled to damages, they might fall to be reduced under the Law Reform (Contributory Negligence) Act 1945. Since the case came before this court on a preliminary issue, it was unnecessary to decide between these alternatives.
I find it, at this stage, both necessary and helpful to examine the principal Australian cases.
In Smith v. Jenkins a group of four youths all about sixteen years of age, who had been drinking, robbed a man, stole his car keys, and then, having found out where his car was, stole the car and drove it off on a joyride. The plaintiff was the first driver, but after a couple of changes of driver he was merely a passenger; a relatively few miles from the scene of the theft the car left the road at 80 or 90 m.p.h. and hit a tree. The plaintiff was seriously injured and sued the youth who had been the driver at the time of the accident; it was held that he could not recover anything.
In Bondarenko v. Sommers [1967] 69 S.R.(N.S.W.) 269 a decision of the Court of Appeal of New South Wales, a group of youths stole a car and proceeded to race the stolen car against a car one of them owned along a rough and fairly narrow road containing potholes and ruts. The result of such reckless driving was that the stolen car turned over. One of the youths who was a passenger in the stolen car at the time of that accident claimed damages for his injuries, but was held not entitled to recover.
Then in Jackson v. Harrison a passenger was injured through the negligent driving of a motor car by a driver who was at the time of the accident and to the passenger's knowledge disqualified from driving. It was held by the majority of the High Court, Barwick C.J. dissenting, that the passenger was not thereby disabled from recovering damages from the driver. The view of the majority, Mason J., Jacobs J. and Aickin J., was that the illegality did not bear on the standard of care reasonably to be expected of the driver. That followed from a further decision of the High Court in a case of Progress & Properties Ltd. v. Craft [1976] 135 CLR 651, which was not a motoring case.
In that case the plaintiff. Craft, was a workman on a building site who, in breach of statutory regulations, was carried to the top floor of a building under construction in a goods hoist with the concurrence of the operator of the hoist who was a fellow employee. As the hoist reached the top floor the operator's foot slipped off the brake, the hoist fell to the ground at a speed which exceeded the maximum permissible speed under the regulations, and the plaintiff was injured. He claimed damages from his employers because of the operator's negligence and the employers pleaded as a defence the illegality on which the plaintiff and the operator were jointly engaged. It was held by a majority of the High Court, Barwick C.J. again dissenting, that the plea of illegality did not avail the employers. The reason given in the judgment of Jacobs J. with which the other members of the majority concurred was that the duty of care owed by the operator was the same whether he was hoisting goods only or a man in the hoist. Therefore the illegality did not affect the standard of care the plaintiff was entitled to expect. Both Jackson v. Harrison and Progress & Properties Ltd. v. Craft can be regarded as cases within Bingham L.J'S category, in Saunders v. Edwards, of cases where the plaintiff had suffered a genuine wrong to which his allegedly unlawful conduct was merely incidental.
In Smith v. Jenkins, Kitto J. founded his judgment on a principle which he took from the judgment of Scrutton L.J. in Hillen v. I.C.I. (Alkali) Ltd. [1934] 1 KB 455 that if the whole transaction is known by each party to be illegal there is no contribution or indemnity between joint wrongdoers. He said at page 80 of the A.L.J, report: " ... it seems ... clear that Scrutton L.J. perceived a general principle of law ... namely that persons who join in committing an illegal act which they know to be unlawful (or I should add in the language of the judgment in Adamson v. Jarvis [1827] 4 Bing 66 at p.73 which they must be presumed to know to be unlawful) have no legal rights inter se by reason of their respective participations in that act." That principle cannot, however, have survived intact as a principle of English law since the enactment of section 6 of the Law Reform (Married Women and Tortfeasors) Act 1935.
Barwick C.J. held at 78-9 of the report of Smith v. Jenkins that the failure of the plaintiff to recover damages was to be attributed to a refusal of the law to erect a duty of care as between persons jointly participating in the performance of an illegal act, rather than to a refusal of the courts, upon grounds of public policy, to lend their assistance to the recovery of damages for breach in those circumstances of a duty of care owed by the one to the other because of the criminally illegal nature of the act out of which the harm arose. The other members of the High Court seem to have taken the same view. Owen J. commented at page 89 that it would be an odd state of affairs if in a case such as that put by Lord Asquith in National Coal Board v. England [1954] AC 403 at 429 a court was called upon to consider and decide the standard of care to be expected in particular circumstances of a prudent safebreaker, or whether in the case suggested by Scrutton L.J. in Hillen v. I.C.I. (Alkali) Ltd. the smuggler who had not warned his confederates of a defect in the rope which they were using in the course of hiding smuggled goods had acted with the degree of care to be expected in the circumstances of a reasonably careful smuggler. The court considered that the doctrine of volenti did not provide a satisfactory solution of the problem.
On the facts of Progress & Properties Ltd. v. Craft it became clear that merely to say that if the parties were engaging in a joint illegal act neither would owe any duty of care to the other was to put the proposition too widely. The distillation of the law by the High Court of Australia rests therefore now on the judgment of Jacobs J., with which the other members of the majority of the court concurred, in Progress & Properties Ltd. v. Craft and in the judgments of Mason and Jacobs JJ. with whom Aickin J. concurred in Jackson v. Harrison. For relief to be derived on the ground of the illegality, the circumstances of the joint illegal venture in the course of which the accident which caused the plaintiff's injuries occurred must be such as to negate, as between the two of them, any ordinary standard of care. Thus Mason J. said in Jackson v. Harrison at page 456:
"A plaintiff will fail when the joint illegal enterprise in which he and the defendant are engaged is such that the court cannot determine the particular standard of care to be observed." -
and Jacobs J. said in Progress & Properties Ltd. v. Craft at page 668:
"Where there is a joint illegal activity the actual act of which the plaintiff in a civil action may be complaining as done without care may itself be a criminal act of a kind in respect of which the court is not prepared to hear evidence for the purpose of establishing the standard of care which was reasonable in the circumstances."
This formulation would clearly cover the instances given in the authorities of the careless smuggler or safebreaker, or the reckless driving, to escape capture, of the getaway car after a robbery as in the English case of Ashton v. Turner [1981] QB 137. It was regarded in Jackson v. Harrison as also covering the factual situations in Bondarenko v. Sommers where there was, in the words of Mason J. in Jackson v. Harrison, an agreement to drive the stolen car recklessly for the purpose of racing on the highway, and the factual situation in Smith v. Jenkins. In reference to Smith v. Jenkins, Jacobs J. said in Jackson v. Harrison at 460:
"It was a jaunt, an escapade, a joyride even though of a most serious kind from the beginning to the end. How could a standard of care be determined for such a course of criminal activity?"
I feel unable to draw any valid distinction between the reckless riding of the motor cycle in the present case by the deceased boy Hunt and the plaintiff under the influence of drink, and the reckless driving of the cars, albeit stolen, in Smith v. Jenkins and Bondarenko v. Sommers. The words of Barwick C.J. in Smith v. Jenkins -
"The driving of the car by the appellant, the manner of which is the basis of the respondent's complaint, was in the circumstances as much a use of the car by the respondent as it was a use by the appellant. That use was their joint enterprise of the moment."
apply with equal force to the riding of the motor cycle in the present case. This is a case in which, in Bingham L.J's words, the plaintiff's action in truth arises directly ex turpi causa.
It remains, however, to consider whether the agreement or understanding between the plaintiff and the deceased to ride the motor cycle recklessly while under the influence of drink falls within section 148(3) of the Road Traffic Act 1972 and so is of no effect so far as it purports or might be held to negative or restrict any such liability of the deceased in respect of persons carried in or upon the vehicle as is required by the Act to be covered by a policy of insurance.
It is fundamental to the distinction by the Australian courts between Smith v. Jenkins and Bondarenko v. Sommers (and the decision of the court of Appeal in New South Wales in Godbolt v. Fittock [1963] S.R. (N.S.W.) 617 on the one hand and Jackson v. Harrison and Progress & Properties Ltd. v. Craft on the other hand that the joint illegal purpose on which the parties were engaged at the time of the accident must have displaced the ordinary standard of care. Does section 148(3) have the effect that an express or tacit agreement by the parties to engage in such a joint illegal venture cannot be relied on to negative or restrict liability for negligent driving in the ordinary sense of those words?
My answer to that question is "No" because section 148(3) is concerned to preclude a defence of "volenti", but it is not concerned with any defence of illegality. The words "agreement or understanding" in section 148(3) do not contemplate an illegal agreement, express or tacit, to carry out an illegal purpose, otherwise, since the words in section 148(3) are "negative or restrict" liability, the passenger in the stolen getaway car driven recklessly from the scene of a robbery in order to escape interception and capture would be able to recover full damages from the Motor Insurers Bureau, as representing the uninsured driver, without even any reduction or restriction of the damages for contributory negligence.
For the foregoing reasons I would dismiss this appeal.
Appeal dismissed. Application for costs against the Legal Aid Board adjourned to 15th June. Application for leave to appeal to the House of Lords granted.
