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Darryl Allen QC & Jason Wells – Dangerous driving of motorist racing on dual carriageway does not attract ex turpi causa

14th November 2018

Darryl Allen QC leading Jason Wells, instructed by Daniel Carr of Malcolm C Foy Solicitors, represented the successful Appellant/Claimant before Mr Justice Males in the case of Wallett v. Vickers.

The claim was brought on behalf of the Estate of a deceased motorist who lost control of his car when racing against the Defendant on a dual carriageway. The case was originally heard in the County Court, where the trial judge found that the two men were racing and travelling at speeds between 70mph and 80mph on a road where the speed limit was 40mph. Each man was seeking to beat the other to the point in the road where the two lanes narrowed to one. Neither knew the other and there was no evidence of any contact or communication between them suggesting or agreeing to race; their actions were spontaneous reactions to the driving of the other. The trial judge found that the driving of the Defendant contributed to the Deceased’s loss of control of his vehicle and rejected the Defendant’s case on causation. However, he rejected the claim on the basis that there was a criminal joint enterprise and therefore the ex turpi causa principle applied.

Mr Justice Males held that on the evidence it was not open to the trial judge to find that there was a criminal joint enterprise and therefore the correct approach was to reduce the award to reflect the Deceased’s own contributory fault [assessed at 60%]. He also considered the Defendant’s argument that the Deceased’s driving in itself, in the absence of a criminal joint enterprise, engaged the ex turpi principle. Although he held that it was not open to the Defendant to argue that case on appeal – it not having been argued before the judge – he did consider the relevant authorities and concluded, “In my judgment McCrackenis a binding authority that in the absence of a criminal joint enterprise between the claimant and the defendant, dangerous driving by the claimant will not bar a claim pursuant to the ex turpi causa principle. Rather, such a claim is to be determined in accordance with principles of causation (has the conduct of the defendant made a material contribution to the claimant’s injuries?) and contributory negligence (should the damages be reduced by reason of the claimant’s own fault?). These principles are sufficient to give effect to the requirements of justice and public policy.” [§42]

Mr Justice Males also confirmed that an intention to assist or encourage is an essential element of a criminal joint enterprise for the purpose of ex turpi causa, consistent with the decision of Mrs Justice Yip in Clark v Farley.

The Judgment can be found here.