Dear Colleagues;
There is a very interesting review of the current law on the impact of a joint illegal enterprise between a claimant and defendant in a negligence action in
Joyce v O'Brien & Anor [2013] EWCA Civ 546 (17 May 2013)
http://www.bailii.org/ew/cases/EWCA/Civ/2013/546.html. The claimant and the defendant were both fleeing after stealing some ladders, the claimant falling out of the back of the speeding van driven by the defendant. In rejecting the claim on the basis of ex turpi causa in the context of joint illegal enterprise, Elias LJ very helpfully reviews not just the English law but also the development of the law in Australia, leading up to the decision in Miller v Miller a few years ago. His Lordship formulates a principle for these sort of cases based, he says, on a causation analysis, not on duty of care or "standard of care" as had been done in Australia prior to Miller. The principle at [29] is:
where
the character of the joint criminal enterprise is such that it is foreseeable
that a party or parties may be subject to unusual or increased risks of harm as
a consequence of the activities of the parties in pursuance of their criminal objectives,
and the risk materialises, the injury can properly be said to be caused by the
criminal act of the claimant even if it results from the negligent or
intentional act of another party to the illegal enterprise.
There are appropriate qualifications given later about "minor offences" but in the context of this case it was clear that both parties could foresee the dangerous nature of the speedy getaway in a van, the doors of which had to be open to the length of the ladder, and hence the claimant could not recover.
Regards
Neil
Neil Foster
Associate Professor in Law,
Newcastle Law School;
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
Room MC177,