Plaintiff's illegality as a bar to recovery of personal injury damages

Plaintiff’s illegality as a bar to recovery of personal injury damages*

Rick Glofcheski Associate Professor of Law, University of Hong Kong.

Despite recent attempts at judicial reformulation, the question of the effect of a plaintiffs illegal conduct on his right to pursue a common law negligence action for personal injury damages remains largely unsettled, and on an uncertain policy and doctrinal foundation. There is u continued obsession with public policy, whether expressed, as it is in England, as a mutter of public conscience, or in Australia, as a proximity consideration preventing the finding of a duty of care. However formulated, public policy, in particular the public conscience, as an ad hoc means of determining the effect of a pluintiff‘s illegality, is unsatisfactory for this purpose, and has proved problematic and unmanageable for the courts. I t is here submitted that personal injury negligence law, properly understood and deployed, does not require, nor is served by, the continued application of the illegality defence.

INTRODUCTION

Not long ago, the English Court of Appeal decided in Revill v Newbery‘ that a burglar could recover personal injury damages in negligence from the owner of the very property he was attempting to burgle.’ The decision aroused great public interest,’ touching as it did a sensitive societal nerve in a jurisdiction where the landholder’s rights have traditionally attracted the highest order of protection from the common law. A review of the illegality defence in the context of personal injury actions is therefore prompted.

It will be argued that, having regard to the origins of the illegality doctrine, its public policy justification, the criteria used in its application, and the functions of negligence law, a plaintiff should never be deprived of his cause of action merely for reasons of his coincident illegal behaviour. This is so not only because a court of law deliberating over the interactions of two individuals is ill-suited to determine matters of public policy, but because it leads to an indefensible, judicial sliding scale of illegality, which, despite efforts at reformulation, the courts have proved unable to avoid. Finally, it will be shown that recent

* I wish to thank Tony Dugdale and Jill Cottrell for their helpful comments on the first draft of this article, and Jim Emptage, who, through our early discussion sessions, contributed to the formulation of the basic argument. 1. [1996] 1 All ER 291. 2. Plaintiff found two-thirds negligent, and damages reduced accordingly. 3. ‘Shotgun old-age pensioner wearies of fame’ The Times, 4 December 1994, p 1; ‘Were damages justified for injured allotment intruder?’ (letter) The Times, 13 December 1994, p 21; ‘Heroes who fell foul of the law’ The Times, 4 October 1995, p 11.

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developments in case law and legislation reveal a policy shift away from the illegality defence and have marginalised it to the point where, in personal injury actions, it should no longer be recognised or applied by the courts.

THE DEFENCE

Whether treated as a matter of defence,? as it is in this paper, or one of duty of care,5 the illegalityb principle, whether so styled, or expressed in the maxim ex rurpi causa non oritur a d o ? is a complete answer to the plaintiff‘s claim. It has its roots in contract law, where it has had wide application, and has long been a bar to recovery.* Its entry into the law of tort was belated, and met with some resi~tance.~ During its relatively short life” as a tort law defence it has had an uncertain existence. Its application has been inconsistent, the courts having failed to identify and agree the conditions for the defence, largely due to its basis in public policy, an inherently nebulous and poorly defined policy that contradicts other tort law values and objectives.

While it is generally agreed that not all plaintiffs tortiously injured while engaged in illegal conduct should be deprived of a cause of action,” the problem

4. Canadian courts favour treating the illegality argument as a defence: see Hall v Hebert (1 993) 10 1 DLR (4th) 129, discussed below. The current English Court of Appeal position is mixed: in Reeves v Commissioner of Police of the Metropolis [1998] 2 All ER 381, it was treated as a defence; but see the different views expressed in Pitts v Hunt [1991] 2 QB 24, discussed below. 5. The Australian courts favour this approach: see Gala v Preston (1990-91) 172 CLR 243, discussed below. For the implications of treating illegality as a duty issue, see B MacDougall ‘Ex Turpi Causa: Should a Defence Arise from a Base Cause?’ (1991) 55 Sask L Rev 1 at 3, and the judgment of McLachlin J in Hall v Hebert (1993) 10 1 DLR (4th) 129 at 168. 6. The term ‘illegality’ is slightly inaccurate. The defence can arise not only in cases of plaintiffs criminal conduct but also in cases of legal but morally objectionable conduct, the principal examples being suicide and attempted suicide: see Yim Tat-fai v A-G of Hong Kong [ 19861 HKLR 873; Kirkham v Chief Constable of Greater Manchester Police [ 19901 2 QB 283; and Reeves v Commissioner of Police of the Metropolis [ 19981 2 All ER 38 1. 7. ‘Out of a base cause there arises no action’. 8. See Holmes v Johnson (1775) 1 Cowp 341 at 343, per Lord Mansfield CJ for one of the earliest applications of the principle in contract. 9. In National Coal Board v England [ 19541 AC 403, where the defence was rejected, Lord Porter remarked that ‘the adage itself is generally applied to a question of contract and I am by no means prepared to concede where concession is not required that it applies also to the case of a tort’ (at 419). 10. Ashton v Turner [ 198 11 QB 137 would appear to mark its entry into the English law of torts. See generally C DeBattista ‘Ex Turpi Causa Returns to the English Law of Torts: Taking Advantage of a Wrong Way Out’ (1984) 13 Anglo Am Law Rev 15, for doubts about the correctness of the application of the illegality defence to Ashton v Turner. 11. For instance, almost no one would suggest that trivial offenders such as a jaywalking pedestrian, or an automobile passenger who fails to buckle up, should be deprived of a damages claim. Certainly, such plaintiffs routinely succeed in their personal injury actions.

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remains one of how to fashion workable criteria for the consistent and fair application of the defence. A course must be negotiated between two unacceptable positions: the court neither wishes to lend its aid to a party seeking to pursue or enforce an illegal object; nor, on the first indication of unlawfulness, ‘draw up its skirts and refuse all assistance to the plaintiff, no matter how serious his loss . . . ’ I 2 The court rightly wishes to avoid creating a class of legal outcasts, excluded from the law’s protection, regardless of the circumstances, including the degree of illegality.

One of the earliest English cases to consider the defence was National Coal Board v Eng1~nd.I~ In this case, a mine worker was injured as a result of a detonation performed by a co-worker in breach of statutory duty. The plaintiff had allegedly aided and abetted the co-worker in breaching the statutory duty. In rejecting the defence of ex turpi cuusa,’4 Lord Asquith emphasised the need for a close connection between the offence and the injury. He said that the defence would not avail where for instance A and B are proceeding to premises that they intend to burglariously enter, and before entering, B picks A’s pocket and steals his watch.15

A sufficiently close connection between the illegal conduct and the damage suffered was established to the satisfaction of the court in Ashton v Turner.“ In this case, the plaintiff and defendant were fleeing the scene of the burglary that they had jointly committed. As a result of the defendant’s negligent driving, the plaintiff suffered personal injury and sued the defendant. The plaintiffs action was dismissed, on the primary ground that the law should not recognise a duty of care owed by one participant in a crime to another when the tortious act in question (negligent driving of the ‘getaway car’) was so closely connected to the commission of that crime.”

Moreover, it is not every illegal activity, however minor, that should attract the defence. As hinted above, a minimum threshold of egregiousness of the illegality must be reached before the defence is activated. In English courts it has been repeatedly stated that the defence will avail where ‘in all the circumstances it would be an affront to the public conscience if by affording him the relief sought the court was seen to be indirectly assisting or encouraging the plaintiff in his criminal act’.I8

Despite broad agreement that for the defence to be activated a close connection between the plaintiffs illegal conduct and the injury is required, and the illegality must be more than trivial, the results in the cases have been inconsistent and difficult to predict.

Before proceeding to an analysis of the recent leading cases and the contradictions to which they give rise, it must be understood that in tort law

12. Per Bingham LJ in Suunders v Edrtwds [ 19871 2 All ER 65 1. 13. Aboven9. 14. The court unanimously held that the defence did not apply to mere breach of statutory duty concerned with a safe working method, particularly in view of the express inclusion of breach of statutory duty in the definition of ‘fault’ in the Law Reform (Contributory Negligence) Act 1945. Lord Porter doubted whether the defence would ever apply to tort ([1954] AC 403 at 419). 15. [ 19541 AC 403 at 429. 16. [I9811 QB 137. 17. [I9811 QB 137 at 146. 18. Euro-Diam Lid v Barkursr [ 19901 1 QB 1 at 35, per Kerr LJ.

Plaintiff’s illegality as a bar to recovery of personal injury damages 9

the defence arises in one of two factual settings. Often, the defence will arise as between two criminals engaged in a joint criminal enterprise.19 The defendant, himself having acted illegally, pleads the plaintiff‘s illegality as a complete answer to the claim. In other cases, it is the plaintiff alone who was engaged in illegal conduct at the time the injury was caused through the defendant’s negligence.20 The distinction between these two types of cases has implications for the criteria for the application of the defence, particularly the argument (to be discussed below) that the claim of a plaintiff acting illegally should be rejected because a standard of care cannot be determined. None the less, this distinction has been brushed over or ignored in the general pronouncements of the courts on the effect of plaintiff‘s illegal conduct.

THE UNAVOIDABLE PROBLEM OF THE ‘GRAPH OF ILLEGALITIES’

The English Court of Appeal case of Pitts v Hunt2’ provides fertile ground for a close examination of the defence. It exposes the phenomenon known as the ‘graph of illegalities’, and the inadequacy of the judicial attempts to avoid it.

In this case, the plaintiff was riding as a passenger on the motorcycle owned by the deceased driver who, to the plaintiff‘s knowledge, was unlicensed and uninsured. The two were engaged in a ‘joy-ride’ involving excessive speeds and intimidating driving tactics. Both had consumed excessive amounts of alcohol prior to these events, which culminated in a collision with a car, the death of the motorcycle driver, and serious injuries to the plaintiff. The evidence showed that the plaintiff was a willing accomplice, and indeed had encouraged the deceased driver throughout. At trial, the plaintiffs negligence action against the deceased driver’s personal representative was dismissed, on the basis of the ex turpi causa principle, and so the plaintiff appealed.

In the Court of Appeal, all of the judges agreed that not all crimes should attract the defence - in particular, minor crimes, and those that are causally unrelated to the plaintiffs injury. Beyond this, three distinct approaches can be identified in the judgments, revealing the law’s uncertainty and discomfort with the illegality issue.

Beldam LJ applied a public conscience test. He referred to the Acts of Parliament and codes designed to control and regulate the behaviour of drivers, and interpreted the public conscience as expressing a strong disapproval of conduct involving the dangerous use of automobiles.22 Therefore, the plaintiff would fail in his action. However, as pointed out by Dillon LJ in the same case, this deceptively simple solution gives rise to an unsolved judicial conundrum. It leads to the creation of a ‘graph of illegalities according to moral turpitude’,23 the existence of which implies varying degrees ofjudicial (dis)approval for different crimes. Using the public conscience as the determinant for civil liability suggests

19. Eg Pitts v Hunt [ 19911 2 QB 24; Gala v Preston (1990-91) 172 CLR 243; and Hall v Heberr (1993) 101 DLR (4th) 129; all discussed below. 20. Eg Revill v Newbery [ 19961 1 All ER 291. See also Kirkham v Chief Constable of Greater Manchester Police [19 901 2 QB 283; Yim Tat-fai v A-G of Hong Kong [ 19861 HKLR 873; and Reeves v Commissioner of Police of the Mefropolis [ 19981 2 All ER 381. 21. [I9911 2 QB 24. 22. [I9911 2 QB 24 at 46. 23. [I9911 2 QB 24 at 56.

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that the courts condone the view that criminal conduct is susceptible of such classification, and that some criminal conduct is not ‘serious’. This is a message that the courts obviously wish to avoid sending to would-be criminals or to the public generally. Moreover, the test is too vague, leaving no guidance as to how to identify plaintiffs’ behaviour that would offend the public conscience. How is public conscience to be gauged? Any attempt at classifying criminal conduct according to its treatment by the criminal law - as (for instance) subject to imprisonment on a first offence, or according to its treatment as either felony or misdemeanour, or indictable or summary procedure - would be artificial and unsatisfactory. At any rate, the cases suggest that ex turpi cuusu may not be confined to criminal conduct, but extends to immoral conduct inimical to public va1ues.Z‘

In recognition of these problems, Dillon LJ rejected the public conscience test, but took an approach that seems no less vague. He said that a distinction -

‘between cases where the plaintiff‘s action in truth arises directly ex turpi causa and cases where the plaintiff has suffered a genuine wrong to which allegedly unlawful conduct is incidental avoids this difficulty, in that it does not involve grading illegalities according to moral turpitude . . .’2s

He held the instant case to be one which arises directly ex turpi cuusu. An obvious objection to this approach is that, in many cases of morally

inoffensive illegal behaviour, the action arises directly ex turpi cuusu. This happens, for instance, in the routine case of the pedestrian injured while jay-walking, the driver who speeds, the injured passenger who fails to wear a seat belt, or the worker injured through his employer’s negligence who was himself in breach of a statutory

Tort law does not exclude such plaintiffs, and a move in that direction would not only be a radical alteration of the law but would be universally condemned by judiciary and public alike. Moreover, there is unlikely to be agreement as to when a plaintiff‘s injury arises directly ex turpi cuusu. If an injury caused to a burglar by the owner of the property being burgled does not arise directly ex turpi cuusu,” one struggles to consider what conditions must be met for this

24. See eg Kirkham v Chief Constable of Greater Manchester Police [ 19901 2 QB 283; Yim Tur-fai vA-G of Hong Kong [ 19861 HKLR 873; and Reeves v Commissioner ofPolice of the Metropolis [ 19981 2 All ER 38 1 . 25. [I9911 2 QB 24 at 56. 26. See Progress and Properties Lrd v Craft ( 1 976) 135 CLR 65 1, and Henwood v Municipal Tramways Trust (SA) [ 19811 QB 137 for examples of the last. See also National Coal Board v England [ 19541 AC 403. 27. In Revill v Newbery [ 19961 1 All ER 291 the plaintiff was shot and wounded by the defendant while attempting a burglary on the defendant’s premises. This would seem to be a case of injury arising directly ex turpi causa if ever there was one. None the less, the trial judge rejected the application of ex turpi causa, on the footing that the injury was not ‘so closely interwoven in the illegal or criminal act as to be virtually a part of it . . .’ (at 293). Even the result in Ashron v Turner [ 198 I ] QB 137, superficially appealing on the facts, does not lead to a workable general principle. For instance, what of the burglar fleeing the scene of the crime who, in the escape, is injured through the negligent driving of a third party? Since the connection between the tortious act and the crime is not as close, the plaintiff is likely to succeed in his action, but there seems to be little to distinguish the merits of his claim from those of the plaintiff in Ashron v Turner.


requirement to be satisfied. Therefore, Dillon LJ’s approach will inevitably lead back to a consideration of the public conscience in determining whether or not the plaintiff‘s claim should be excluded, leaving unresolved the graph of illegalities conundrum that this approach entails.

Balcombe LJ was also cognisant of the problems created by the public conscience test, but adopted yet another approach, that formulated in the Australian case of Jackson v Harrison.28 This approach, rather than focusing attention on the plaintiffs conduct, places emphasis on the defendant’s conduct. In Jackson v Harrison, both the plaintiff and the defendant shared the driving on a weekend excursion in the defendant’s car. Both parties’ driving licenses were suspended in consequence of convictions for driving offences, and both parties were aware of the other’s disqualification. The plaintiff was injured as a result of the defendant’s negligent driving. The majority of the court took the view that the plaintiff could be deprived of his action only if the circumstances of the illegality were such that it was not possible to establish an appropriate standard of care.29 Such was not the case on the facts, so the plaintiffs action succeeded. The result is formulated in terms of duty of care. Where a standard of care cannot be ascertained, no duty of care is owed by the defendant to the plaintiff. For Balcombe LJ, the circumstances of the accident and the nature of the enterprise in Pitts v Hunt were such as to bring him to the conclusion that the court could not establish an appropriate standard of care.30 Therefore, he held that the plaintiff should fail.

But this approach is equally open to criticism. However much Balcombe LJ may have wished to avoid the ‘graph of illegalities’ objection, he has led himself right back to that very problem. His approach fails to recognise that the ex turpi causa plea arises in two very distinct fact situations. First of all, it arises where, as here, the plaintiff was engaged in a joint criminal enterprise with the defendant. Admittedly, in such cases it will sometimes be difficult to establish a standard of care. But the defence also arises where the plaintiff, while engaged in a criminal activity, is injured by the negligence of some unrelated, non-criminal party. In the latter category of cases, there should be no problem in ascertaining a standard of care, and Balcombe LJ’s test will have no application. The court will be led back to the uncomfortable determination of whether or not the plaintiffs illegal conduct is sufficiently serious to offend the public conscience, and the awkward ‘graph of illegalities’ objection will not be avoided.

Moreover, even if seen as a partial solution, applicable to the joint criminal enterprise class of cases, the approach is flawed, and ultimately of little practical advantage. Can it really be said that, in the case of a joint criminal enterprise such as found in the facts of Pitts v Hunt, an appropriate standard of care cannot be ascertained? In Nettleship v Weston3’ the English Court of Appeal rejected the notion of a variable standard of care to be applied according to the skills level of the defendant driver, regardless of the fact that the plaintiff was aware of the skills deficiency. To allow a variable standard of care as between plaintiff and defendant would lead to the anomalous result where one standard of care would apply to the passenger and another to the pedestrian injured in the same

28. (1978) 138 CLR 438. 29. (1978) 138 CLR 438 at 455-456, per Mason J. 30. [1991] 2 QB 24 at 50-51. 31. [1971] 2QB 691.

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accident, a result which is unacceptable in English law. Yet that is the result that would be reached on the basis of the approach of Balcombe W. A pedestrian injured by the negligent driving of the defendant would be entitled to the usual standard of care, and the plaintiff passenger to a different standard, in fact no duty of care at

At any rate, addressing Balcombe LJ’s logic directly, is i t really true to say that in the case of the parties’ joint illegal conduct, the circumstances are such that an appropriate standard of care cannot be ascertained? The standard of care for a driver of a motor vehicle, whether licensed or not, whether intoxicated or not, is readily ascertainable, as in any other case, such as that of the student driver in Nettleship v W e ~ t o n . ~ ~ The example is often cited of two safe-crackers, one injured by the other’s negligence in a premature explosion, and the assumption made is that a court cannot establish an appropriate standard of care. This position is simply untrue.34 That one who takes it upon himself to engage in a specialist activity must perform to the standard of such specialists is trite law.35 The safe- cracker case can be better resolved on the basis of the well-recognised and conceptually less troublesome defence of volenti nonfit i n j ~ r i a . ) ~

Furthermore, if Balcombe LJ’s approach were to be accepted, an as yet unresolved difficulty would be how to determine which cases are such as to be inappropriate for the court’s ascertainment of a standard of care. The judgments in Jackson v Harrison and Pitts v Hunt offer no guidance on how such cases are to be identified. In truth, this approach is nothing more than a disguised version of the ‘public conscience’ test, the court having to determine which cases of criminal conduct are sufficiently unsavoury as to warrant the court’s condemnation, and, as has been seen, is vague, open-ended, and leads to the ‘graph of illegalities’ objection.

Despite a variety of approaches by the members of the High Court of Australia in Gala v Pre~ton,~’ the problem of the graph of illegalities was not solved. In this case, the plaintiff passenger was injured in a motor vehicle accident as a result of the defendant’s negligent driving of the car that the parties had earlier jointly stolen, and were unlawfully using, contrary to the Criminal Code. The plaintiff failed in his negligence action, on the basis of his illegality, expressed unanimously by the court in terms of no duty of care.

32. The adoption by Balcombe LJ of the Jackson v Harrison approach into English law is perhaps inherently flawed. The court in Jackson v Harrison presumed the acceptability in Australian law of a variable standard of care, a view later affirmed in Cook v Cook (1986) 162 CLR 376. This being so, a difficulty may arise as to how to vary the standard in the circumstances of joint criminal enterprise. Therefore, the court in Jackson v Harrison could come to the conclusion that it could not do so, reluctant as it was to engage in a consideration of the nature of the criminal activity. However, a variable standard of care is not permissible in English law. The standard is quite simply that of the reasonable person performing the particular activity: Nettleship v Weston [ 19711 2 QB 691. 33. [1971] 2 QB 691. 34. That this is so was acknowledged by Murphy J in Jackson v Harrison itself, with specific reference to the safe-cracker hypothetical: (1978) 138 CLR 438 at 463-464. 35. See Arthur Guinness, Son & Co (Dublin) Ltd v The Freshfield (Owners): The Lady Gwendolen [ 19651 P 294. Nettleship v Wesron [ 197 11 2 QB 69 1 can be cited for the same proposition. 36. Discussed below. 37. (1990-91) 172 CLR 243.


Dawson J’s justification for a finding of no duty was similar to that of Balcombe LJ in Pitts v Hunt, that to permit a standard of care to be erected on a criminal enterprise would be a condonation of a breach of the criminal law.38 However, his conclusion that he was unable to ascertain a standard of care is no more convincing than that of Balcombe LJ in Pitts v Hunt. It may be that here, as in other cases, there are circumstances that require the precise standard of care to be modified in its application to the facts of the case. But such difficulties should not lead to a finding of no duty of care. Ascertainment of the standard of care according to particular circumstances is routinely done, for instance, in cases where the defendant is having to react suddenly to an unforeseen oc~urrence.~’ This poses no great difficulty for the court. At any rate, leaving aside the option of actually varying the standard of care, inimical to English law, the mere fact of an unsavoury criminal enterprise is not an insurmountable obstacle, particularly in a commonplace activity such as driving a car. To say, as did the trial judge, that an appropriate standard of care cannot be determined,”O is simply untrue and, with respect, an abdication of judicial responsibility. It is an unsatisfactory justification for the decision which, one can only assume, was reached according to the judge’s (unacknowledged) perception of policy. At any rate, Dawson J, as with Balcombe LJ in Pitts v Hunt, did not offer any criteria for determining the kinds of illegal circumstances for which no standard of care can be determined. Therefore, egregiousness or unsavouriness of the crime, or public policy or public conscience, however styled, will inevitably be determinative, leading back to a judicial graph of illegalitie~.~’

The majority of the court (Mason CJ, Deane, Gaudron and McHugh JJ) in Gala v Preston found against the plaintiff because the parties were not in a sufficient relationship of proximity to give rise to a duty of care.4’ This was so because of the policy component the judges considered to be inherent in the notion of proximity. However, on close examination, the policy reason given by Mason CJ on behalf of the four judges was simply a distillation of the argument about difficulty of ascertaining an appropriate standard of care in circumstances where the injury was so closely related to the joint criminal activity.

There is serious objection to a duty of care approach. First of all, one would be forgiven for thinking that, on such straightforward facts, proximity of relations between defendant and plaintiff was beyond dispute. The parties were in a relationship of driver/passenger, an obvious proximity situation. The use of the proximity device, in particular its policy component, is inappropriate and unhelpful, and further diminishes the meaning of that already vague and over- used ~oncept.~’ Moreover, the court offered little in the way of criteria for its

38. (1990-91) 172 CLR 243 at 279. 39. A principle established as long ago as Jones v Boyce (1816) 1 Stark 493. 40. (1990-91) 172 CLR 243 at 247. 41. See further criticisms of this approach in the judgment of Brennan J in Gala v Preston (1990-91) 172 CLR 243 at 268-270. 42. (1990-91) 172 CLR 243 at 254. 43. See Brennan and Dawson JJ’s criticisms of this approach in Gala v Preston (1990-91) 172 CLR 243 at 259-263 and 276-277. See also McLachlin J in Hall v Hebert (1993) 101 DLR (4th) 129 at 160): ‘We would be trading one label for another without coming to grips with the fundamental problem.’

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application.# A finding of no proximity is really nothing more than an application of the public conscience test applied by Beldam LJ in Pins v Hunt, and resolves none of the problems created by that approach, in particular, the graph of illegalities objection. It only serves to further mystify, rather than elucidate, the problem of plaintiff's illegal conduct and its implications for the personal injury action.45

Brennan J's approach, among all the judges in Gala v Preston, is unique, but is also unsatisfactory. After convincingly criticising and rejecting the proximity approach, and the difficulty of ascertaining standard of care approach, Brennan J focused on what he called the normative influence of the enactment that was breached by the plaintiff. For Brennan J, the question of whether or not illegal conduct would deprive the plaintiff of a duty of care is not to be determined by reference to the circumstances of particular cases, but by reference to a 'classification of the laws creating offences according to the effect which admission of the duty would have on their normative This approach is remarkable in that, in determining the result of a particular case in which the defendant has pleaded ex rurpi causa, regard need not be had to the circumstances of the crime as such, but to the nature of the offence, on the books, as it were. This presumes that all offences are subject to such classification, falling on one side of the line or the other, regardless of the circumstances of the commission, or the connection to the injury suffered. And so, in Gala v Preston, Brennan J found no duty of care because the normative influence of s 408A of the Criminal Code would be destroyed if a duty of care was admitted. This was so because:

'to admit a duty of care owed by one offender to a co-offender in the unlawful use of a vehicle would be to assure the co-offender of compensation for damage to himself occurring in the course of conduct which damages the interests of the person from whose possession the car is taken and carries the risk of damage to other^.'^'

Although Brennan J said that he wished to avoid the draconian result arising out of the general proposition in Smith v JenkinS' to the effect that participants in a joint illegal enterprise never owe a duty of care to each other, his principle is similarly draconian, in that, logically, it would, for instance, exclude all co- thieves of cars from a duty of care inter se, even when weeks or months had passed since the theft. What purposes are being served when the law frees such a defendant from a duty of care? Moreover, although Brennan J provided a list of factors to be considered in detennining whether or not the admitting of a duty

44. Mason CJ could only say that it would be grotesque for a court to find a duty of care owed by one safe-cracker to another, whereas it would be unjust and wrong to deny the existence of a duty of care owed by a driver to a passenger who has agreed to drive in a prohibited driving lane. But it is not clear, and he does not say, why this is so (1990-9 I ) 172 CLR 243 at 253. 45. Moreover, the point should not be missed that formulating the issue in terms of duty of care has implications for the burden of proof. The effect is to shift the burden of proof on illegality to the plaintiff, rather than leaving i t as a defence for the defendant, where it belongs. 46. (1990-91) 172 CLR 243 at 273. 47. (1990-91) 172 CLR 243 at 243. 48. (1970) 119 CLR 397.


of care would impair the normative influence of a law creating an these factors are not easy of application, and are inevitably as much a determination of public policy and values as the approaches of his brethren of which he was rightly so critical. After all, to say that a plaintiff is to be deprived of a duty of care because he was, when injured, committing a crime whose normative influence would be undermined if a duty of care is permitted, is to do nothing more than make an ad hoc public policy distinction. Arguably, all of the criminal law is normative, and is therefore included within Brennan J’s approach, so the determination of which laws so qualify will vary with the judge’s perception of public policy. Certainly, it will be difficult under Brennan J’s approach to predict which criminal activities will attract the defence of ex turpi causa. At any rate, the graph of illegalities objection remains unresolved.

Much of the reasoning of the judges in Gala v Preston seems to be informed by the greater willingness in Australian law to accept a variable standard of care in circumstances where the plaintiff is aware of some disability on the part of the defendant. Most of the judges cited with approval the decision in Cook v in which the High Court had adopted a lower standard for a car driver who was, to the knowledge of the plaintiff, unlicensed and inexperienced. This principle is not part of English law.5’ Moreover, even if accepted, it should not be used to deprive the plaintiff outright, of a cause of action. Even in Australia, cases such as Gala v Preston should be resolved not on the basis of no duty, but (on appropriate facts), on the basis of no breach of duty. The plaintiff would not thereby become the law’s outcast.

The approach in Gala v Preston is to be contrasted with that of the Supreme Court of Canada in Hall v Hebert.52 In this case the court was faced with a fact pattern similar to that of Gala v and Pitfs v Hunt.54 The case involved intoxicated co-users of a motor vehicle. The plaintiff and defendant, both drunk, left a party in the defendant’s car. Soon thereafter, on a steep incline of the road, the car stalled, and when the ignition key became dislodged and could not be located, the parties decided to roll-start the car. At this point the plaintiff sought the defendant’s permission to drive the car, and the defendant accommodated that request. In the ensuing attempt to start the car, the plaintiff lost control of the vehicle, which went off the road and rolled over. The plaintiff suffered significant head injuries and sued the defendant, alleging negligence on the part of the defendant in allowing the plaintiff, in his drunken condition, to drive the car.

Six of the seven judges on the Supreme Court of Canada found for the plaintiff,55 while assessing plaintiffs contributory negligence at 50%. All of the

49. The list includes the gravity of the offence, the threat to public order, the penalties prescribed etc: (1990-91) 172 CLR 243 at 272. 50. (1986) 162 CLR 376. 51. See Nettleship v Weston [I9711 2 QB 691. 52. (1993) 101 DLR (4th) 129.

54. [I9911 2 QB 24. 55. Only Sopinka J dissented, not for reasons of plaintiff‘s illegality (he agreed that ex turpi causa had no application), but because, as a matter of precedent and principle, an owner of a car does not owe a duty to prevent a willing driver from driving. To ‘extend a duty would not amount to the incremental extension of liability but rather a quantum leap’: (1993) 101 DLR (4th) 129 at 134.

53. (1990-91) 172 CLR 243.

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judgments considered the ex turpi causa defence at length, and in the event, none of them found it to apply.

McLachlin J, on behalf of four judges, would allow the defence to defeat a cause of action in tort, only where it was necessary to ‘preserve the integrity of the legal system’.’6 On the surface a general and unworkable formula, its application was limited to two categories: where to allow the claim would be to enable the plaintiff to profit from his wrong;57 or would enable the plaintiff to evade a penalty prescribed by law.sx On this formulation, the defence should never apply to personal injury cases, because such cases, as McLachlin J explained, do not involve a claim for a profit. To the contrary, the plaintiff, like other personal injury claimants, is merely seeking to have his pre-accident position (not his post-crime position) restored, and nothing more. McLachlin J was apparently unconcerned with the objections voiced in the Australian High Court in Gala v Pre~ton,~’ about the unsavouriness and difficulties of ascertaining a standard of care between co-criminals, and how this might reflect badly on the image of the courts.(’”

In Canada, this effectively brings to an end the ex turpi causa defence in personal injury actions, leaving any continued application of the doctrine to contract law, and to a narrow spate of cases in tort where one wrongdoer claims against another for financial loss arising out of a failed joint illegal venture. Such cases bear considerable similarity to the contract cases, in that the court wishes to avoid awarding a remedy which can be seen as advancing the plaintiff‘s illegal purpose.

The difference in approach adopted by the majority of the court in Hall v Hebert with that of the majority of the court in Gala v Preston has been cogently explained according to the larger doctrinal divergence taking place in those jurisdictions regarding the duty of care.h’ In Canada, foreseeability remains the touchstone for the finding of duty of care, while in Australia, the more restrictive approach embraced since the mid- 1980s? employing the proximity factor as a limiting device, led the court there to treat illegality as a duty of care concern.

56. (1993) 101 DLR (4th) 129 at 168. 57. McLachlin J cited as examples a claim for loss of future earnings based on an illegal occupation, and a claim for exemplary damages: (1993) 101 DLR (4th) 129 at 164. 58. As where a criminal, caught due to his partner’s negligence and required to pay a fine, seeks to recover the amount of the fine from his partner in a negligence action: (1993) 101 DLR (4th) 129 at 166.

60. Of the other members of the court, Gonthier J agreed with McLachlin and Cory J J . Cory J took an approach similar to that of the majority in Gala v Preston, treating the issue as one of duty of care, specifically, whether or not, in circumstances of illegality, policy considerations required a finding of no duty. On the facts he found that policy considerations did not so require: (1993) 101 DLR (4th) 129 at 158. His approach was roundly criticised by McLachlin J in the same case as being unhelpful, failing as it does to indicate any clear or workable criteria for the application of the principle (at 168- 17 1 ). 61. See R W Kostal ‘Currents in the Counter-Reformation: Illegality and Duty of Care in Canada and Australia’ (1995) 3 Tort LR 100. 62. See Jaensch v Cojjey ( 1984) 155 CLR 549 and Sutherland Shire Council v Heyman (1985) 157 CLR 424.

59. (1990-91) 172 CLR 243.


The Australian approach provides a more powerful exclusionary device, given the admittedly vague and undefinable nature of proximity, which sits well with the currents of Australian jurisprudence regarding negligence liability. However, the Canadian approach is to be preferred, steering clear as it does from the ad hoc public policy determination which the Australian approach requires, while having resort to more recognisable tort law devices such as contributory negligence, in determining the effect of plaintiff‘s illegality.

IS EX TURPI CAUSA NECESSARY?

This paper is concerned with the application of the ex turpi causa doctrine to personal injury negligence cases, and asks whether its continued application is necessary, or a good thing.

The first matter to be considered is the nature of the policy invoked in support of the illegality doctrine. As can be seen from the above discussion, ‘public policy’ is said to support the doctrine. But what exactly is this policy, and what are its origins?

In contract law, the ex turpi causa principle - or the doctrine of illegality, as it is often styled in the contract cases - has had a longer history. The court will not enforce a contract if to do so will advance an illegal purpose of the parties to the contract or allow the plaintiff to profit from his wrong.63

On this footing, the ex turpi causa principle would seem to have no application to tort law with the exception of those rare cases where the plaintiff truly stands to gain the profit that his illegal conduct was directed at. And so there might be scope for the doctrine where the plaintiff was a partner in an illegal scheme gone wrong, and then wishes to make a claim in tort for the profits that would have been derived from the scheme.64 Similarly, it would seem uncontroversial that in a situation of tortkontract concurrency, a plaintiff should not be allowed to avoid an ex turpi causa plea by bringing his action in tort only. If the ex turpi causa plea would have been an answer in contract, then it should also be an answer to the tort claim. Moreover, and as suggested by McLachlin J in Hall v Hebert, a plaintiff would be undermining the legal system if he were to sue his partner in crime to recoup the amount of a fine paid as a result of their arrest and conviction caused by the defendant’s negl igen~e .~~ A claim for an award of punitive damages in a negligence action is also of a different order. As suggested by McLachlan J in Hall v Hebert, such damages, being non-compensatory, should not be awarded to a plaintiff injured while acting illegally.66 Finally, personal injury or fatal accident claims in which the damages claim for loss of

63. See Kerr LJ in Euro Diam Ltd v Bathurst [ 19901 1 QB 1 at 35; generally, see Chitty on Contracts (London: Sweet & Maxwell, 27th edn, 1994) vol 1, 16-001-16-173. 64. Thackwell v Barclays Bankplc [I9861 1 All ER 676 is an example. 65. (1993) 101 DLR (4th) 129 at 166. Askey v Gulden Wine Co Ltd [ 19481 2 All ER 35 is an example. Equally, if the plaintiff had been incarcerated and then wished to claim damages in negligence from his partner, by analogy to McLachlin J’s point, he would be undermining the integrity of the legal system. 66. (1993) 101 DLR (4th) 129 at 164. However, this situation will not arise in those jurisdictions which follow Rookes v Barnard [ 19641 AC 1 129, since, after that decision, a punitive damages award is simply not possible in a negligence action: see AB v South West Water Services Ltd [ 19931 1 All ER 609.

18 Legal Studies

future earnings based on an illegal occupation involve separate considerations, and will be rightly refused by the court in appropriate circumstance^.^^ Such plaintiffs are effectively seeking the court’s assistance to further their criminal activities.

A claim for personal injury damages, however, is on an entirely different footing. The plaintiff in the negligence action is not seeking a profit from his illegal activity. Personal injury damages are truly compensation, a notional restoring of the body to its pre-accident condition. This is hardly a profit.

Moreover, the negligence plaintiff is not, as is the party to the illegal contract, seeking to capitalise on and reap the benefits of an illegal activity by requiring the court to enforce the illegal purpose. He is not seeking prospective rights; he is not, as in contract law, seeking to be put in the position he would be in if his illegal purpose had been fulfilled. Should he try to do so, then indeed the same judicial policy should apply.

THE FUNCTIONS OF NEGLIGENCE LAW

If one considers, as is generally accepted, that the primary function of negligence law is compensation for accidents, then ex turpi causa is an undermining principle. It serves no useful purpose, leaving the victim of negligence uncompensated, and dependant on social welfare for recovery and rehabilitation. The purpose of ex turpi causa must obviously lie elsewhere in the context of negligence law functions.

Deterrence is also said to be an important function of negligence law, however much this is problematic, in view of the fact that negligence law standards are expressed in terms of reasonableness, a vaguely defined concept that provides little guidance on how to behave. This is particularly so, if one considers that most negligent conduct does not involve conscious risk-taking, ie conduct that takes into account the likelihood of accident. Does ex rurpi causa advance the function of deterrence?

It would seem not. In most cases in which ex turpi causa is applied, the plaintiff and defendant were jointly engaged in illegal conduct. To deprive the plaintiff of his cause of action might be thought to have the effect of dissuading him and others like him from engaging in unsafe and illegal activities. However, what can be the value of any perceived deterrent effect when by the application of the illegality defence the negligent partner in crime is being relieved of his civil law obligations? Is this not equally an inducement to engage in illegal conduct?

Occasionally, the ex rurpi causa principle arises in cases where the plaintiff alone has been involved in illegal conduct. This is the category of cases where the public conscience is most likely to be offended by the granting of a civil remedy.68 However, the criminal sanctions attaching to illegal conduct are much greater than those that would apply by virtue of the application of ex tulpi causa. A plaintiff willing to run the risk of the criminal law sanction is unlikely to be

67. See Burns v Edman [ 19701 2 QB 54 1. 68. Examples include Kirkham v Chief Consfable of Greater Manchester [ 19901 2 QB 283; Yim TurIfai vA-G ofHong Kong [ 19861 HKLR 873; Reeves v Commissioner of Police of the Metropolis [ 19981 2 All ER 38 1; and Revill v Newbey [ 19961 1 All ER 29 1, where in the result the issue was skirted by the Court of Appeal.


affected in his decision-making by the threat of being deprived of his civil law remedies, even if he were to think about it in advance (an unlikely prospect). The reality is that before setting out on his illegal enterprise, it is only the criminal law sanction (if any) that would come to mind. And this reasoning applies with no less force to the joint illegal enterprise type of case.69

Another, and more difficult function sometimes attributed to tort law, is psychological in nature. Justice is retributive, and affords to the parties the satisfaction of being publicly vindicated, of having one’s day in court, of having justice declared. This function can be as important to the public at large as to the parties to the litigation, and is probably the motivation for the defence of ex turpi causa in the first place. However, it provides little justification for the application of ex turpi causa to the joint illegal enterprise cases since, as regards the illegal conduct, the parties are, leaving aside the defendant’s negligent conduct, equal in the eyes of law and morality. And when applied to the cases of the plaintiff acting alone in his criminal endeavour, it leads to the conundrum discussed above, namely, the insoluble problem of ascertainment of the public conscience, and the graph of illegalities objection to which it leads.

Finally, the role of tort law should not be confused or conflated with that of the criminal law in dealing with a criminal plaintiff. Although it is a legitimate role of tort law to minimise the occurrence of wrongful behaviour, the primary aim of tort law is corrective justice,70 and the harmful consequences of the defendant’s behaviour to the plaintiff. It is doubtful whether a corrective justice system moulded around the interactions of two individuals is an appropriate mechanism within which to give vent to bigger questions of distributive justice or public p01icy.~’ Criminal law, with its tradition of legislative supervision, is more appropriate to that task. And the application of the ex turpi causa principle in negligence actions leads to the obvious objection of double jeopardy. The CriminaUplaintiff is penalised twice for his wrongdoing, even more objectionable in that the plaintiff in his negligence action was not afforded the usual procedural safeguards ensured by the criminal law system.

LEGISLATION AND POLICY

The case of Revill v N e ~ b e r y ~ ~ represents one of the most eloquent arguments to date against the continued application of ex turpi causa. In this case, the plaintiff burglar was injured when the 76-year-old defendant property owner fred his shotgun indiscriminately in an attempt to ward off the plaintiff burglar. The result was achieved in a roundabout way. Treating the case as a common law action in negligence, the court reasoned that as a matter of legislative policy,

69. Examples include Pitts v Hunt [ 19911 2 QB 24; Hall v Heberf (1993) 101 DLR (4th) 129; and Gala v Preston (1990-91) 172 CLR 243. 70. Defined by Honor6 as requiring ‘those who have without justification harmed others by their conduct to put the matter right’. See A M Honor6 ‘The Morality of Tort Law’ in D G Owen (ed) Philosophical Foundations of Tort Law (Oxford: Oxford University Press, 1995) pp 78-79. 71. See R W Wright ‘Right, Justice and Tort Law’ in Owen (ed) Philosophical Foundations of Tort Law (above n 70) pp 180- I 8 1. 72. [I9961 1 AllER291.

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criminal trespassers, far from being excluded from the law’s protection, were in fact well within that protection. This policy was inferred from the Occupiers’ Liability Act 1984, where the duty of care of occupiers had been extended to trespassers, apparently without regard to their status as innocent or criminal trespassers. This legislation, the court inferred, signalled a legislative policy to bring trespassers within the law’s protection. Moreover, and somewhat paradoxically, it would not matter, according to the court in Revill v Newbery, that the plaintiff‘s action was not one of occupiers’ liability under the statute but one of ordinary common law negligence. In the event, the plaintiff was found contributorily negligent, and his damages reduced by two-thirds, a sensible solution, which indicates, if nothing else, that the law has ample tools to achieve a reasonable resolution of cases involving plaintiff‘s illegality without having to resort to the troublesome and elusive device of ex turpi C U U S U . ~ ~

However, this decision leads, unwittingly perhaps, to an unacceptable anomaly: there is now a privileged class of criminals - those who, at the moment of injury, were in the act of trespassing. Had the plaintiff been engaged in criminal conduct in a place other than the defendant’s premises to which he was not invited, or had he been an invited guest, the court’s reasoning would not have applied, the general law of ex turpi causa would have been relevant, and the plaintiff may well have been deprived of a cause of action on the basis of plaintiff‘s illegality. The court never addressed this anomaly. It never expressed any reasons why criminals who are trespassers should be more favourably treated than those who have not yet breached the property line, and none comes to mind, except that the likelihood of occupier’s insurance may be acting as a hidden persuader. If a criminal plaintiff is to be afforded the law’s protection merely on account of his fortuitous status as a trespasser, a huge and (it is submitted) undesirable contradiction is created in the law. It arises because of the court’s implicit acknowledgment of the ex turpi causa defence and its relevance to tort law, while attempting to avoid its application in this case. This contradiction is best eradicated as soon as possible, through judicial repeal of the ex turpi causa defence, and the extension of the law’s protection to any person injured by negligence, whether or not that person was engaged in illegal conduct, and whether or not he was a trespasser.

That anomaly aside, the court’s approach in Revill v Newbery can be read as suggestive of a judicial move away from the illegality defence in the context of personal injury actions. Especially is this so if one compares the decision with that of the same court in Pirts v Hunt. In Revill the court was prepared to protect the cause of action of a sober-minded criminal, coolly intent on committing a serious crime against a non-criminal defendant, a considerable advance over the decision in Pitts, where the inebriated plaintiff/passenger could not proceed against the principal in the crime imputed to the plaintiff.

The policy detectable from other legislative initiatives in the latter part of this century is also in favour of the inclusion of the criminal plaintiff within the court’s protection. The passing of legislation creating apportionment in cases of contributory negligence is evidence of this policy. Wrongdoing plaintiffs are

73. A similar result (plaintiff 40% contributorily negligent) was achieved on similar facts by the Australian High Court in Huckshaw v Shaw [ 19851 3 ALR 417. Ex turpi causa did not figure in the reasons.


no longer barred from the courts, the legislature coming down firmly in favour of an assessment of the parties’ relative fault in causing the injury.74 The application of ex tuipi causa undermines this intention. Where two parties are at fault, whether or not with a criminal aspect, apportionment of fault and a reduction of damages, rather than denial of a cause of action, has the better claim to justice.

Further evidence, although less cogent, in support of a policy against illegality as a bar to recovery can be found in contribution legislation. This legislation, creating rights of contribution as between persons liable to the plaintiff in respect of the same damage,75 has now been interpreted to exclude the defence of ex turpi causu as between such persons. In K v P (J, third party) l6 the plaintiff, a musician, sued the defendant, one of his financial advisers, for damages for fraud and conspiracy. The defendant issued a third party notice against the plaintiff‘s accountant, alleging professional negligence in the management of the plaintiffs accounts, and seeking contribution for any damages for which he (the defendant) might be liable to the plaintiff in fraud or conspiracy. The third party’s plea of ex turpi causa in answer to the defendant’s contribution claim was rejected, Ferris J holding that ‘to permit the ex turpi cuusa defence . . . would . . . narrow to a substantial extent the deliberately wide wording of [the contribution legislation]’.’’ If this is so regarding claims in negligence for economic loss, then it must be so in a damages claim for personal injuries. A defendant who through his illegal activity has negligently caused personal injury to the plaintiff will not be barred from his contribution claim against a third party, merely by reason of his illegal conduct.

The passing in some jurisdictions of motor vehicle legislation prohibiting liability exclusion arrangements evinces such a policy even more clearly. Agreements between driver and passenger, whether express or implied, to exclude the driver’s liability for negligently caused injury, are now ineffective in depriving an injured passenger of his tort law action for damages.7x This legislation applies with equal force to nullify any such agreement, whether or not the passenger was engaged in a joint illegal enterpri~e.’~ Is the effect of such legislation to be circumvented by the application of the ex turpi cuusu defence? It is submitted that the ex turpi cuusa defence should not be lightly extended to the illegal use of motor vehicles, for to do so clearly undermines the legislative intention and policy of s 149.

74. In England see Law Reform (Contributory Negligence) Act 1945 (UK), s I ; in Australia see eg Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 1; and Wrongs Act 1936 (SA), ss 27a, 27b; in Canada see eg Negligence Act, RSO 1990, c N.l , s 3; in Hong Kong see Law Amendment Reform (Consolidation) Ordinance (Cap 23), s 21. 75. In England see Civil Liability (Contribution) Act 1978, ss 1, 2; in Australia see eg Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5( I)(c), (2); and Wrongs Act 1936 (SA), ss 25( l)(c), (CA), (d), 26; in Hong Kong see Civil Liability (Contribution) Ordinance (Cap 377), ss 3(1), 4(1). 76. [ 19931 1 All ER 52 1 . 77. [1993] 1 All ER 521 at 529. 78. In England see Road Traffic Act 1988, s 149(3); in Australia see eg Motor Vehicle Act 1988 (NSW), s 76; and Wrongs Act (SA), s 35a(4); in Hong Kong see Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap 272), s 12. 79. See Pirts v Hunr [ 19911 2 QB 24 at 48,5 I , 52 per Beldam LJ, Balcombe LJ and Dillon LJ.

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THE EFFECTIVENESS OF NEGLIGENCE LAW DOCTRINE TO DEAL WITH THE CRIMINAL PLAINTIFF

Arguably, negligence law is already adequately equipped to deal with the problem of the illegal plaintiff, obviating the need to resort to the outright exclusion of the plaintiff through the ex turpi cuusu defence.

Volenti nonfir injuria will be available as a complete answer, where the defendant can show that the plaintiff willingly and knowingly accepted the risks of the enterprise.80 This principle applies whether or not the enterprise has an illegal character. It has been excluded by legislation in the case of the passenger of a motor vehicle injured through the defendant’s negligent driving:’ but not in other activities. It is admittedly a rarely used device, encumbered by judicial constraints placed on the defence,“ but it has a continued existence, and is preferable to ex furpi cuusu, if only because it is more objectively determinable. This is not to say that it is necessarily more easily determinable, but the inquiry into the plaintiffs knowledge and acceptance of risks, even in cases of implied volenti, is more compatible with the forensic process as generally practised than is an examination of the public conscience.

Much of the time, contributory negligence, with its statutorily created apportionment capabilities, will be available, as indicated in the previous se~t ion . ’~ Principles of corrective and retributive justice require that, where both plaintiff and defendant contribute to a harmful outcome, responsibility should be apportioned according to the plaintiffs contribution to the harmful 0utcome.8~ Like volenti, contributory negligence is a more objectively determinable device than ex rurpi causa. Whether the plaintiff was acting alone in a criminal activity or together with the defendant in a joint illegal enterprise, the plaintiff’s contribution to his injury can be as easily determined as in any other case. This device is under-utilised, Revill v Newberyg5 and Hall v HeberPb being obvious exceptions.

The standard of care concept in negligence is a flexible and robust device that can assist a court in dealing with cases involving the illegal plaintiff. Although standard of care contains a sometimes unacknowledged policy component, it is, like volenti and contributory negligence, more objectively determinable than ex turpi cuusu. Standard of care takes into account all of the

80. See C G S Tan ‘Volenti Non Fit Injuria: an Alternative Framework’ (1995) 3 Tort LR 208 for an alternative to the traditional explanation of the defence of volenti. 81. See above n 78 and Pirrs v Hunt [ 19911 2 QB 24, interpreting the English provision. 82. See Reeves v Commissioner of Police of the Merropolis [ 19981 2 All ER 38 1 for theoretical and logical objections to the application of the defence to a negligence action arising out of a suicide. 83. It has been held that since apportionment legislation normally defines ‘fault’ to include ‘breach of statutory duty’, the defence is never available in the context of breach of statutory duty: see Lord Porter in National Coal Board v England [ 19541 AC 403 at 4 19. For the argument that ‘fault’ in apportionment legislation includes illegal conduct generally, see D Gibson ‘Illegality of Plaintiff‘s Conduct as a Defence’ (1969) 47 Can Bar Rev 89 at 94-95; and DeBattista (above n 10) at 2 I . 84. Honor6 (above n 70) at 92. 85. [ 19961 1 All ER 291. 86. (1993) 101 DLR (4th) 129.


circumstances of the case. Properly understood, this does not require tampering with the Nettleship v Wesrod7 principle, which holds that the standard is objective and not susceptible of variation. The conduct of a defendant, who for instance is taking measures to protect himself against a criminal, will be judged according to all of the circumstances,8" in this case circumstances of dire concern for his personal safety and security of property. In appropriate cases, this device can exonerate defendants such as the home owner in Revill v N e ~ b e i y . ~ ~ None of the judges in that case provided much analysis on the standard of care, although it may be safe to assume that the circumstances of protecting oneself and one's property against an intruder were taken into account in reaching the conclusion that the defendant had breached the duty of care.

Although the duty of care in negligence affords scope for the control of liability in this area through its proximity, policy and justice and reasonableness components, this is not an area in which judicial creativity is to be encouraged. Otherwise, the duty device becomes just another guise for ex turpi causa, in the absence of restraint mechanisms. Indeed, as seen from some of the judgments in Gala PrestongQ and Hall v Hebert:' it already has won some acceptance as the appropriate formulation for the ex turpi causa defence, without resolving the graph of illegalities conundrum.

CONCLUSION

As revealed by the recent case law, the contradictions created by continued resort to the ex turpi causa defence in personal injury tort actions are too significant to justify its continued usage. The historical and moral justifications for the defence are outdated and inappropriate to a claim for personal injury damages, however much they may have some application to contract and other civil law claims. In particular, the judicially approved 'graph of illegalities' to which the defence gives rise is not only vague and unworkable, it creates a poor image for the law, and undermines its integrity. The attempts to avoid this perception in Australia by reformulation according to the proximity doctrine, and most recently in England through resort to legislative policy applicable only to a specific class of criminals (trespassers), are either ineffective or piecemeal, giving rise to fresh contradictions. Moreover, developments in the case law and legislation evince a clear policy shift away from the defence, and lay the groundwork for its outright abolition. Finally, tort law is already armed with devices to cope with the personal injury plaintiff who was acting illegally, sufficient in most cases to satisfy a justice-seeking public, or at least to achieve a result that the public can understand.

87. [1971] 2 QB 691. 88. Glusgow Corporation v Muir [ 19431 AC 448. See generally R Kidner 'The Variable Standard of Care' (1991) 11 LS 1 . 89. [ 19961 1 All ER 29 1.

91. (1993) 101 DLR (4th) 129, per Cory J. 90. ( 1990-9 1 ) 172 CLR 243.

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Plaintiff's illegality as a bar to recovery of personal injury damages