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Rick Glofcheski 03/23/06 6:24 PM >>>
Hello
from Hong Kong.
It
seems to me that ex turpi causa may be relevant to the discussion,
or in any event may in some circumstances provide the answer to
the liability question. The defence is related to consent in that
it deprives a plaintiff of a cause of action if s/he was injured
while willingly participating in an illegal venture. In Murphy
v Culhane [1976] 3 All ER 533, this defence was considered
in the context of battery. Murphy and some other men went to beat
up the defendant. In the fight, the defendant struck Murphy with
a plank and killed him. The plaintiff (Murphy's widow) brought an
action against the defendant under the Fatal Accidents Act for damages
for battery. The plaintiff applied for summary judgment. The application
for summary judgment was dismissed in view of the defendant's plea
of ex turpi causa, which Lord Denning held was applicable in such
circumstances.
In
Lane v Holloway [1967] 3 All ER 129, it was said that for
the defence of ex turpi causa to apply there must be some proportionality
between the defendant's blow and the plaintiff's act. If the defendant
gives a "savage blow out of all proportion to the occasion"
the defence does not apply and the action could proceed. In Revill
v Newbery [1996] 1 All ER 291, where the defendant poked his
gun through the door and shot the plaintiff who was attempting to
burgle the defendant's premises, the court rejected the defence
of ex turpi causa because it was concerned to avoid treating the
plaintiff as an "outlaw" completely bereft of the law's
protection. The court so decided, influenced in part by what it
understood to be the intention of the legislature in including trespassers
within the law's protection with the passing of the Occupiers' Liability
Act 1984.
However,
in Cross v Kirkby (The Times Law Report, 5 April 2000),
the English Court of Appeal applied ex turpi causa as an alternative
reason to defeat the plaintiff's claim in battery in circumstances
where the plaintiff had been the instigator of a fight that resulted
in his injuries at the hands of the defendant. In the court's view,
proportionality of the defendant's blow was not the issue in the
application of this defence, because the defence does not exist
for the benefit of the defendant.
Rather,
the issue was the nature of the plaintiff's criminal conduct, and
whether "the facts that give rise to [his claim] are inextricably
linked with his criminal conduct". Having illegally entered
the defendant's property and threatened the plaintiff with weapons,
the court held that the facts were inextricably linked and the defence
would apply.
