The five member Court will comprise Lady Hale, Lord Clarke, Lord
Wilson, Lord Sumption and Lord Toulson.

The Appellant was a ten year old pupil at Whitmore
Junior School in Essex, run by the Respondent as the Local Education Authority.
The Respondent was obliged under the National Curriculum to provide its pupils
with swimming lessons, and it organised regular lessons at a local pool owned
by Basildon Council. The lessons were provided through a contract with Beryl
Stotford trading as ‘Direct Swimming Services’. On 5 July 2000, during the
course of a swimming lesson, the Appellant was involved in a near drowning
incident and suffered serious brain damage, as a result of which she is now
incapable of looking after her own affairs. It is alleged on her behalf that
Direct Swimming Services, through its employees, was negligent in the conduct
of the lesson and that dilatoriness and laxity of supervision caused her
injury. Her case is supported by expert evidence. Insurers of Ms Stotford do
not accept that they are liable to indemnify under the policy on the ground
that Essex County Council owed a non-delegable duty not merely to take
reasonable care of them but to ensure that reasonable care is taken of them by
private actors engaged by them to fulfil their duties under the Curriculum. The
Respondent applied to strike out the pleadings in so far as they claimed there
to be a “non-delegable” duty. The High Court granted that application holding
that there was no real prospect of success on that point. The Court of Appeal
upheld that decision by a majority.

http://www.channel4.com/news/mau-mau-kenya-compensation-hague-apology

J had been seriously injured when he fell from the rear footplate of a van driven by O. O had pleaded guilty to dangerous driving and J claimed damages for personal injury on the basis of O’s negligence. T asserted that O and J had been making their escape after stealing a set of ladders and that O, and therefore T, was not liable as they had been engaged in a criminal joint enterprise. The judge was satisfied that O and J had been involved in a joint enterprise theft and held that the public policy reflected in the principle of ex turpi causa was applicable. The issue was the ambit of the principle in the context of one criminal being injured by the negligence of another criminal when engaged in a joint criminal enterprise.

HELD:

(1) The wider principle was that a person could not recover compensation where his cause of action was based on his own criminal or immoral act. The test for determining liability had focused on causation, whereas the principle developed in joint enterprise cases had focused on the existence of a duty of care. However, the same causation principle should apply whether the criminal was acting alone or as part of a joint enterprise, Delaney v Pickett [2011] EWCA Civ 1532, [2012] 1 W.L.R. 2149 (http://www.lawtel.com/MyLawtel/Documents/AC0130826) applied. When applying the causation principle developed in Gray v Thames Trains Ltd [2009] UKHL 33, [2009] 1 A.C. 1339 (http://www.lawtel.com/MyLawtel/Documents/AC0121213), the courts should recognise the wider public policy considerations which had led them to deny joint liability in joint enterprise cases. The earlier authorities on joint enterprise provided valuable assistance in answering the question as to when the claimant’s injury would be treated as having been caused by his own conduct, notwithstanding that the immediate cause was the act of a partner in crime. They reflected what seemed to be the underlying policy, even if the rationale for denying liability had to be cast in terms of causation rather than duty. The injury would be caused by, rather than occasioned by, the criminal activity of the claimant where the joint criminal illegality affected the standard of care the claimant was reasonably entitled to expect from his partner in crime, Ashton v Turner [1981] Q.B. 137 (http://www.lawtel.com/MyLawtel/Documents/AC0011990) and Pitts v Hunt [1991] 1 Q.B. 24 (http://www.lawtel.com/MyLawtel/Documents/AC1072506) applied. The principle was to be formulated as: where the character of the joint criminal enterprise was such that it was foreseeable that a party or parties could be subject to unusual or increased risks of harm as a consequence of the activities of the parties in pursuance of their criminal activities, and the risk materialised, the injury could properly be said to be caused by the criminal act of the claimant even if it resulted from the negligent or intentional act of another party to the illegal enterprise, Gray applied. That did not necessarily exhaust situations where the ex turpi causa principle would apply in joint enterprise cases, but would cater for the overwhelming majority of cases (see paras 21-29 of judgment). (2) In the instant case, the judge had been entitled to conclude that although the damage might not have occurred but for O’s negligent driving, it was caused by the criminal activity in which J was engaged. The injury resulted from his personal conduct in placing himself in such a dangerous position, and because he had accepted the heightened risk of O’s dangerous driving and that risk had materialised, Gray applied. Active encouragement would not be necessary in all cases; it would be enough that the claimant and negligent driver
were involved in the criminal enterprise together, and that the accident had arisen from activity which it could be foreseen might be committed in the course of that enterprise. Active encouragement could constitute the evidence of joint enterprise which would otherwise be lacking, but in the instant case the evidence of joint enterprise and of the implicit encouragement to bad driving was plain even in the absence of active encouragement (paras 46-48). (3) As the doctrine was one of public policy, there should be some flexibility in its operation. It would not apply, for example, to minor traffic offences. In most joint criminal liability cases, the nature and characteristics of the principal offence would in practice determine which acts of a co-conspirator would attract the application of the doctrine, and for relatively trivial offences the range of such acts was likely to be very limited. Nonetheless, there could be a problem in determining in certain cases whether the
offences attracted the application of the doctrine. However, wherever the precise line was to be drawn, the theft of the ladders in the instant case clearly fell on the side where the doctrine applied. Theft was not merely an imprisonable offence, it carried a maximum sentence of seven years. It was also not a strict liability offence which could be committed without any real moral culpability (paras 49-52).