Pitts v Hunt [1990] EWCA Civ 17

An 18-year-old pillion passenger, jointly engaged with a drunk, unlicensed rider in a reckless and illegal motorcycling escapade, was seriously injured in a collision. The Court of Appeal held that public policy barred his negligence claim against the rider’s estate, despite statutory abolition of volenti.

Facts

The appellant, Andrew James Pitts, aged 18, was injured while travelling as a pillion passenger on a 250 cc Suzuki motorcycle ridden by his 16-year-old friend, Mark Hunt, on 10 September 1983. Hunt was unlicensed, uninsured for road use and had been drinking heavily. Pitts knew Hunt was under age, unlicensed and uninsured.

Both had spent the evening at a disco at the Boot Inn, Shipton, consuming substantial quantities of alcohol. Blood analysis after the accident showed Hunt’s alcohol level was over twice the legal limit. They left together with Hunt driving and Pitts on the pillion, travelling along the A338 towards Tidworth in darkness on a wet but good-quality road.

Two army non-commissioned officers saw the motorcycle being ridden in the middle of the road, weaving from side to side across hazard lines at about 50 mph, passing very close to them while Pitts and Hunt shouted and blew the horn. The judge inferred, on evidence he accepted, that both were deliberately riding in a way calculated to frighten other road users and were enjoying it.

Shortly afterwards the motorcycle, still weaving, collided with a Renault car driven lawfully on its own side of the road by the second defendant, Richard Jewell. Jewell took evasive action but could not avoid impact. Hunt was killed and Pitts was left permanently partially disabled. The trial judge exonerated Jewell from blame.

The action against Jewell failed and is not pursued on appeal. The appeal concerns Pitts’s claim in negligence against Hunt’s personal representatives (the first defendants), liability having been tried as a preliminary issue.

Issues

The principal issues before the Court of Appeal were:

(1) Illegality and public policy

Whether Pitts’s participation with Hunt in a joint illegal enterprise of serious, alcohol-fuelled, reckless riding barred his action in negligence against Hunt’s estate, either because:

• on grounds of public policy (expressed in the maxim ex turpi causa non oritur actio) the court would not allow recovery based on such criminal conduct; or
• the law would not recognise that Hunt owed Pitts a duty of care in the circumstances of their joint criminal activity.

(2) Volenti non fit injuria and section 148(3) Road Traffic Act 1972

Whether any defence of volenti non fit injuria was available to the first defendants, or whether section 148(3) of the Road Traffic Act 1972 precluded reliance on such a defence where a passenger has willingly accepted the risk of the driver’s negligence.

(3) Contributory negligence

If a duty of care existed and was breached, whether Pitts’s damages could properly be reduced to nil on the basis that he was 100 per cent contributorily negligent.

Judgment

Findings of fact

The judge’s findings of fact were not challenged on appeal. He found, among other things, that:

• Hunt was obviously unfit to drive through drink.
• If Pitts had been in a proper state he would have realised this.
• The motorcycle was being ridden recklessly and dangerously and Pitts was at least aiding and abetting that driving, fully agreeing with and encouraging the way Hunt rode.

“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.”

The judge concluded that they were partners in a “joint enterprise of stupidity” and equally responsible for what happened.

Illegality / public policy

Lord Justice Beldam reviewed the history and scope of the public policy principle that courts will not assist a claimant who seeks to found a cause of action on an illegal or seriously anti-social act, drawing on authorities including Holman v Johnson, insurance cases such as Tinline v White Cross Insurance, James v British General Insurance Co Ltd, Hardy v Motor Insurers Bureau and Gray v Barr, and the contribution cases following the abolition of Merryweather v Nixon.

He emphasised that the crucial focus is on the conduct of the person seeking to rely on an unlawful act. Parliament’s road traffic legislation was identified as the primary expression of public policy in the motoring context: it both imposes strict standards on drivers and creates a compulsory insurance regime to protect road users.

Beldam LJ reasoned that although Parliament mandates broad passenger protection, it does not follow that a passenger who is a joint offender in serious road traffic crimes must benefit from that policy. He concluded that where an offence, or series of offences, is so serious that public policy would prevent the driver from recovering an indemnity under a compulsory motor policy, that same public policy should also bar a passenger jointly guilty of that offence from recovering compensation from the driver.

On the facts, he held that Pitts and Hunt were jointly engaging in extremely serious criminal conduct. Had a third party been killed, their behaviour would have constituted manslaughter, not merely by gross negligence but by committing a dangerous act intended, or known to be likely, to frighten or harm others. Beldam LJ therefore held that Pitts was precluded on public policy grounds from recovering damages for injuries sustained in the course of these offences.

Balcombe LJ adopted the approach of the majority of the High Court of Australia in Jackson v Harrison, focusing on whether the circumstances of the joint illegal enterprise were such as to preclude the existence of the ordinary duty of care. He agreed with Mason J’s view that a plaintiff will fail when the nature of the joint enterprise is such that it is impossible for the court to determine the appropriate standard of care. Applying that approach, Balcombe LJ considered this case analogous to joyriding and getaway cases and held that the circumstances precluded the court from finding that Hunt owed Pitts a duty of care.

Dillon LJ likewise drew on Australian authorities including Smith v Jenkins, Bondarenko v Sommers, and Jackson v Harrison. He concluded that Pitts’s claim was one where the action “in truth arises directly ex turpi causa“, and that the joint illegal venture displaced any ordinary standard of care between them.

Duty of care

Beldam LJ noted that both Pitts and Hunt clearly owed duties of reasonable care to other road users, but he doubted the wisdom of recognising no duty between participants in such a dangerous escapade. Nonetheless, because he had already held that public policy barred recovery, the precise characterisation of duty between Pitts and Hunt was not determinative.

Balcombe LJ and Dillon LJ expressed the matter as a denial of duty in the specific circumstances of this joint criminal enterprise, following the Australian reasoning that the court cannot or should not define a standard of care for conduct such as deliberately reckless driving undertaken as a criminal escapade.

Volenti non fit injuria and section 148(3)

The trial judge accepted that Pitts had willingly accepted the risk of injury by taking part in a foolhardy, risky and illegal activity, but held that section 148(3) of the Road Traffic Act 1972 prevented the first defendants from relying on a volenti defence. The Court of Appeal agreed.

Section 148(3) renders any antecedent agreement or understanding between driver and passenger, whether or not intended to be legally binding, of no effect in so far as it purports to negate or restrict the driver’s liability required to be covered by compulsory insurance, and further provides that the fact that a passenger has willingly accepted the risk of the driver’s negligence “shall not be treated as negativing” that liability.

Beldam LJ considered that Parliament intended to abolish the volenti defence in this context, whether based on express agreement or on implied acceptance of risk from circumstances. Dillon LJ agreed, holding that the wording means “the defence of volenti cannot apply” in such cases, endorsing the reasoning of the Court of Session in Winnick v Dick. Balcombe LJ similarly held that section 148(3) excludes any volenti defence which might otherwise be available.

However, all three judges distinguished this from the separate issue of illegality. Dillon LJ stressed that section 148(3) is concerned with volenti, not with the illegality-based public policy defence, and does not displace the latter.

Contributory negligence

The trial judge had held that, if liability existed, Pitts was in effect wholly to blame for his injuries and that any award should be reduced by 100 per cent for contributory negligence. The Court of Appeal unanimously rejected this conclusion.

Beldam LJ held that the wording of section 1 of the Law Reform (Contributory Negligence) Act 1945 is incompatible with a 100 per cent reduction. The section presupposes that the claimant’s fault will not defeat the claim but will lead to a reduction, and that the claimant must share in responsibility rather than be solely responsible. A finding of 100 per cent contributory negligence effectively defeats the claim and is not a true apportionment.

On the facts, Beldam LJ considered that Pitts and Hunt participated equally in the illegal and dangerous escapade, and that, had damages been recoverable, they should have been reduced by 50 per cent.

Balcombe LJ likewise described the 100 per cent finding as logically unsupportable and as “defying common sense”, equating it with saying that Pitts was solely responsible for his own injuries, which he plainly was not. He preferred not to state a specific apportionment, as it was not material to the outcome.

Dillon LJ also considered it impossible to apportion more than 50 per cent of the liability to the pillion passenger as against the driver on these facts.

Implications

The decision establishes that, despite the statutory abolition of volenti non fit injuria as a defence in relation to passengers by section 148(3) of the Road Traffic Act 1972, a passenger who is an active participant in a serious joint criminal enterprise of dangerous driving may nonetheless be barred from recovery on grounds of public policy and illegality.

The Court of Appeal aligns English law, in this context, with the reasoning of the Australian High Court in distinguishing between:

• cases where a claimant’s unlawful conduct is merely incidental to a genuine wrong (where claims can still succeed subject to contributory negligence); and
• cases where the injury arises directly from a joint criminal enterprise whose nature makes it inappropriate or impossible for the court to define or apply an ordinary standard of care between participants.

The case also clarifies that section 148(3) removes the volenti defence against passengers in compulsory insurance situations, but does not prevent defendants from relying on a public policy defence based on illegality.

Further, the judgment underscores that contributory negligence under the 1945 Act cannot be used to eliminate a claim entirely by a notional 100 per cent reduction. Where both parties share blame, some apportionment less than 100 per cent is required if liability is otherwise established.

In practice, Pitts v Hunt is a leading authority on the limits of recovery in negligence where claimant and defendant are joint participants in serious criminal conduct, particularly in the road traffic context, and on the interaction between statutory motor insurance provisions and common law illegality principles.

Verdict: Appeal dismissed; the plaintiff’s claim against the first defendants remained dismissed on grounds of illegality and public policy, and no damages were recoverable.

Source: Pitts v Hunt [1990] EWCA Civ 17