Joyce v O'Brien [2013]

The principle of ex turpi causa was applicable where the character of a joint criminal enterprise was such that it was foreseeable that a party to the enterprise could be subject to unusual or increased risks of harm as a consequence of the pursuit of those criminal activities, as any resulting injury could properly be said to be caused by the claimant's criminal act even if it resulted from the negligent or intentional act of another party to the illegal enterprise.

The appellant (J) appealed against a decision dismissing his claim for damages for personal injury against the first respondent (O) and the second respondent insurance company (T).

J had been seriously injured when he fell from the rear footplate of a van driven by O. O had pleaded guilty to dangerous driving and J claimed damages for personal injury on the basis of O's negligence. T asserted that O and J had been making their escape after stealing a set of ladders and that O, and therefore T, was not liable as they had been engaged in a criminal joint enterprise. The judge was satisfied that O and J had been involved in a joint enterprise theft and held that the public policy reflected in the principle of ex turpi causa was applicable. The issue was the ambit of the principle in the context of one criminal being injured by the negligence of another criminal when engaged in a joint criminal enterprise.

Held: Appeal dismissed.

(1) The wider principle was that a person could not recover compensation where his cause of action was based on his own criminal or immoral act. The test for determining liability had focused on causation, whereas the principle developed in joint enterprise cases had focused on the existence of a duty of care. However, the same causation principle should apply whether the criminal was acting alone or as part of a joint enterprise, Delaney v Pickett [2011] applied. When applying the causation principle developed in Gray v Thames Trains Ltd, the courts should recognise the wider public policy considerations which had led them to deny joint liability in joint enterprise cases. The earlier authorities…