DANIEL MCCRACKEN (A PROTECTED PARTY BY HIS MOTHER & LITIGATION FRIEND DEBORAH NORRIS) v (1) DAMIAN SMITH (2) MOTOR INSURERS BUREAU (3) DARREN MICHAEL BELL (2015)
A judge had not erred in finding a minibus driver negligent for failing to properly check at a junction before colliding with a stolen trials motorbike being ridden dangerously on an adjacent cycle path, or when rejecting the driver’s defence of ex turpi causa. The joint enterprise criminal conduct of the motorbike rider and pillion passenger was not a sufficient basis for the defence to succeed. The damages payable to the seriously injured pillion passenger needed to be further reduced to reflect his contributory negligence.
The appellant (B) appealed against a decision ( EWHC 3620 (QB) that he had acted negligently in a road traffic accident in which the first respondent 16-year-old boy (M) had been seriously injured.
M had been a pillion passenger on a trials motorbike ridden by the second respondent (S), another 16-year-old boy. Neither had been wearing a crash helmet and S did not have a driving licence or insurance. The bike had been stolen, was designed for a single rider and was being ridden too fast on a cycle path. B was driving a minibus, which collided with the bike. The judge found that S was liable to M in negligence. He rejected the defence of ex turpi causa relied on by S and the third respondent bureau, and, by implication, B. The judge also found that the bureau had not proved that M had known or should have known that the bike was stolen, but had proved that he knew it was being used without insurance and that the bureau’s liability was therefore excluded. He found that B had driven negligently, but reduced M’s damages by 45 per cent for contributory negligence. He apportioned liability between S and B in the ratio 80:20 but ordered that B was to pay 90 per cent of the bureau’s costs.
B submitted that the judge had erred in (1) rejecting his defence of ex turpi causa; (2) finding that he had been negligent; (3) his characterisation of M’s role as “just going for a ride” rather than a “joyride” and, consequently, in the reduction of only 45 per cent for contributory negligence; and (4) making the costs order.HELD:
(1) M’s conduct undoubtedly amounted to “urpitude” for the purposes of the ex turpi causa defence, Les Laboratoires Servier v Apotex Inc  UKSC 55,  A.C. 430 applied. The question was whether his claim against B was founded on that turpitude so as to provide a defence. There had been a joint enterprise to ride the bike dangerously and, although the negligent act was that of S, M was jointly responsible and could not bring a claim against S in respect of his own negligent act. The judge had therefore been wrong to reject the defence of ex turpi causa in relation to M’s claims against S and the bureau, Joyce v O’Brien  EWCA Civ 546,  1 W.L.R. 70 followed, Pitts v Hunt  1 Q.B. 24 considered. It did not necessarily follow that that applied to M’s claim against B. The dangerous riding of the bike had no effect on B’s duty of care or on the standard of care reasonably expected of him. However, the causation analysis was more problematic. The accident had two causes: the dangerous riding and the negligent driving of the minibus and it would be wrong to treat one as the true “cause”. The fact that the criminal conduct was one of the two causes was not a sufficient basis for the ex turpi causa defence to succeed. The correct approach was to give effect to both causes by allowing M to claim in negligence against B but, if negligence was established, to reduce any damages for contributory negligence, Revill v Newberry  Q.B. 567 applied, Gray v Thames Trains Ltd  UKHL 33,  1 A.C. 1339 considered (see paras 43-55 of judgment).
(2) There was nothing wrong with the judge’s finding that B had been negligent in failing to check for bikes on the cycle path. The judge had carefully explained why B should have been aware of the possibility that one or more bikes were approaching. There was no basis to interfere with that assessment, founded as it was on the particular circumstances of the case. Once that factor was accepted, the finding of negligence inevitably followed. A finding of negligence would have been appropriate even in the absence of that factor. On any view, B should have looked over his shoulder along the cycle path before turning right. If he had looked, on the judge’s findings, the bike was there to be seen. Either he did not look or, despite looking, failed to see it (paras 57-61).
(3) The judge had erred in his characterisation of M’s role. He had been unduly generous to M in distancing him from S’s dangerous riding. It was “joyriding” and the proper inference was that the two boys were parties to a joint enterprise, the essence of which was that the bike was to be ridden dangerously. That joint enterprise rested on an implied agreement between them to participate. If, at the time of the accident, M was party to such a joint enterprise, his participation had to be regarded as a cause of his injuries. M was therefore the author of his own misfortune to a greater extent than allowed by the judge. A fair reflection of that greater degree of blameworthiness and causative potency of M’s conduct was an overall deduction of 65 per cent in his damages, namely 50 per cent plus the agreed deduction of 15 per cent for his failure to wear a helmet, Jackson v Murray  UKSC 5, 2015 S.L.T. 151 followed (paras 18-27, 62-67). (4) The order that B should pay the bureau’s recoverable costs was within the reasonable ambit of the judge’s discretion (paras 76-78).Appeal allowed in part