Pitts v Hunt [1990] EWCA Civ 17

A passenger, who encouraged the drunk, unlicensed driver of a motorcycle to drive recklessly, was severely injured in a crash. The Court of Appeal held his claim for negligence was barred by the defence of illegality (*ex turpi causa*), as his injuries were inseparable from the joint criminal enterprise he was participating in.

Facts

The claimant, Stephen Pitts, aged 18, was a passenger on a motorcycle driven by Mr Hunt, aged 16. Both had spent the evening drinking heavily. The claimant knew that Hunt was unlicensed, uninsured, and had consumed a significant amount of alcohol. Despite this, the claimant got on the motorcycle as a pillion passenger and actively encouraged Hunt to drive in a reckless and dangerous manner, with the intention of frightening other road users. Their dangerous driving led to a collision with a car driven by the second defendant, Mrs Lovett. As a result of the collision, Hunt was killed and the claimant was left with permanent partial disability.

At first instance, the trial judge found that while the driver was negligent, the claimant was 100% contributorily negligent, but still awarded him damages on the basis that a 100% reduction was not permissible. The driver’s insurers appealed.

Issues

The Court of Appeal considered the following key legal issues:

1. Whether the defence of ex turpi causa non oritur actio (illegality) could defeat the claimant’s claim, given that he was a willing participant in a joint criminal enterprise.
2. Whether the defence of volenti non fit injuria (consent) was applicable, and if it was precluded by section 148(3) of the Road Traffic Act 1972 (now s.149 of the Road Traffic Act 1988).
3. Whether it was logically possible to find a claimant 100% contributorily negligent.
4. Whether the court could establish a standard of care owed between two participants during the commission of a joint criminal act.

Judgment

The Court of Appeal, by a majority (Beldam and Dillon L.JJ., with Balcombe L.J. dissenting), allowed the appeal and dismissed the claimant’s action. The majority held that the claim was barred by the doctrine of ex turpi causa non oritur actio.

Beldam L.J. (Majority)

Beldam L.J., giving the leading judgment, concluded that the claimant’s claim should fail on grounds of public policy. The principle of ex turpi causa applied because the claimant’s injuries were a direct consequence of the joint criminal enterprise he was engaged in. He reasoned that it was impossible for the law to set a standard of care owed by the defendant to the claimant in these circumstances.

From the start to the finish, the joint criminal enterprise was, as the plaintiff must have known, fraught with risks of the gravest kind. In the course of a joint criminal enterprise, is one participant liable to another for the consequences of an act or omission in the course of that enterprise which is negligent because it is not carried out with the skill and care to be expected in a lawful activity? … Thus I would hold that on the grounds of public policy the plaintiff was precluded from recovering compensation for his injuries and that the judge was wrong to allow his claim.

He distinguished this from contributory negligence, stating that a 100% finding of contributory negligence was not a valid concept, as it would mean the claimant was the sole cause of his own injuries, negating the defendant’s negligence. He also held that section 148(3) of the Road Traffic Act 1972, which prevented the defence of volenti, did not prevent the application of the separate and distinct public policy defence of ex turpi causa.

Dillon L.J. (Majority)

Dillon L.J. agreed with Beldam L.J. He emphasised the impossibility of determining a duty of care in the context of the specific criminal acts being committed.

The facts were that the plaintiff was not merely a passenger who knew that the driver was likely to drive carelessly; he was actively encouraging the driver to drive with a degree of recklessness which was from the outset a feature of the criminal enterprise on which they were jointly engaged… In those circumstances, because of the plaintiff’s participation and encouragement in the very acts which led to his injury, the defendant, Hunt, did not owe the plaintiff a duty to drive with skill and care.

Balcombe L.J. (Dissenting)

Balcombe L.J. dissented. He believed that the public policy intention of the Road Traffic Act 1972 was to ensure compensation for victims of road traffic accidents. He reasoned that section 148(3), by negating the defence of consent (*volenti*), should also by extension negate the defence of illegality (*ex turpi causa*), as they were closely related. He would have upheld the trial judge’s decision but on the basis that a 100% deduction for contributory negligence was a valid finding, effectively extinguishing the claim for damages while establishing initial liability.

Implications

The case is a leading authority on the defence of illegality in tort law. It firmly establishes that a claimant cannot recover damages for an injury sustained as a direct consequence of a joint criminal enterprise in which they were a willing participant. The court’s reasoning demonstrates a refusal to legislate a standard of care between criminals in the course of their crime. Furthermore, the judgment clarifies that the statutory restrictions on the defence of *volenti non fit injuria* in road traffic cases do not extend to the public policy defence of *ex turpi causa non oritur actio*.

Verdict: Appeal allowed. The claimant’s action was dismissed.

Source: Pitts v Hunt [1990] EWCA Civ 17