![]() If the position were otherwise, any driver whose road traffic offence constituted turpitude, but who was only partially to blame, would fail to recover from anyone else whose negligence caused the accident. “The basis upon which contributory negligence is assessed, namely by taking account of the relative culpability and causative potency of the negligence in question, provides an acceptable basis for determining what damages properly reflect Mr Bell's culpability and its causative effect. This was further explained by Christopher Clarke LJ who added at paragraph 87: “In my judgment, the right approach is to give effect to both causes by allowing Daniel to claim in negligence against Mr Bell but, if negligence is established, by reducing any recoverable damages in accordance with the principles of contributory negligence so as to reflect Daniel's own fault and responsibility for the accident.” ![]() On this analysis he concluded that the defence should fail, explaining at paragraph 52 that: However, with regards to the causation analysis this was more difficult because there were two causes: the dangerous driving of the bike and the negligent driving of the minibus. On this, Richards LJ said that on the duty of care analysis formerly applied in joint enterprise cases the dangerous driving had no effect on the duty or standard of care expected of B. However, the big question was whether the claim against B was founded upon that turpitude. He found that it did on the basis that M was aware of facts which could give rise to the offence of dangerous driving. ![]() In doing so, he referred to Lord Sumption’s approach in the latter case and asked whether M’s conduct amounted to “turpitude” for the purpose of the defence. Richards LJ examined a number of authorities on this issue including Joyce v O’Brien 1 WLR 70, Pitts v Hunt 1 QB 24 and Les Laboratoires Servier v Apotex Inc AC 430. The leading judgment was given by Richards LJ with whom Underhill LJ and Christopher Clarke LJ agreed, with the latter adding further comments of his own. As for contributory negligence the judge held that damages should be reduced by 45%, a figure which included 15% for not wearing a helmet.ī appealed the judgment on the issues of ex turpi causa, liability, contributory negligence and finally costs. The judge then went on to find that the minibus driver, B, had driven negligently and since the defence of ex turpi causa had failed in relation to the other two defendants it was not necessary to consider it with respect to him. ![]() However, the MIB’s liability in this respect was excluded due to the fact that the judge also found that M knew that the bike was being used without insurance (under clause 6.1(e)(ii) of the Uninsured Drivers’ Agreement). He also found that the MIB had not proven that M knew or ought to have known that the bike had been stolen or unlawfully taken. As for the MIB’s liability in this respect, the judge rejected the defence of ex turpi causa both in respect of S and the MIB. The case was complicated in particular by the fact that S did not have a driving licence or insurance, the bike was stolen and what’s more was not designed for riding by more than one person.Īt first instance, the judge held that S was liable to M. In Daniel McCracken (a protected party suing by his mother and litigation friend Deborah Norris) v (1) Damian Smith (2) The Motor Insurers’ Bureau (3) Darren Michael Ball EWCA Civ 380, the claimant (M) had been injured in an accident in which he had been a pillion passenger on a trials motorbike being driven by the first defendant (S) when it collided with a minibus being driven by the third defendant (B). The Court of Appeal has recently handed down an interesting judgment in a road traffic personal injury case which involved an examination of the defence of ex turpi causa non oritur actio along with the issues of causation and contributory negligence. Ex Turpi Causa, Causation and Contributory Negligence - Katharine Evans (CILEx), Bartletts Solicitorsġ0/07/15.
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