EWJ June 61 2025 web - Flipbook - Page 14
Testing the Boundary:
Tort Claims and Wrongful Acts
by Alistair Kinley, Clyde & Co
The recent decision in Dormer v Wilson and others
[2025] EWHC 523 (KB) is the latest judicial application, in road traffic cases, of what now seems to be
known as the illegality defence, having previously
been widely referred to as the ex turpi causa rule. At
its core is the relatively uncontroversial proposition
that a civil claim arising from the claimant’s own
wrongful act should be barred so as to ensure the integrity of the legal system between the criminal and
civil fields.
McCracken v Smith, MIB and Bell 2015] EWCA Civ 380,
which also involved two teenagers on a motorcycle colliding with another vehicle.
As regards the third potential offence, although the
journey in which the claimant was injured was to some
degree at his instigation because he wanted to be taken
to hospital for medical treatment, he had nevertheless
not “ 'caused' the defendant to 'use' the motorbike without insurance contrary to s.143(1)(b) RTA by… requiring to be
taken to hospital on [it]”.
In recent years, the Supreme Court has had to
consider the basis and extent of the defence on several occasions and in very different factual settings. We
will not rehearse that case law in this article but instead
focus on how the defence was applied in Dormer.
Contributory negligence
In Wallett v Vickers [2018] EWHC 3088 (QB) Males J
observed that “careless driving is a criminal offence but nobody would suggest that careless driving by the claimant prevents the recovery of damages (reduced as appropriate on
account of contributory negligence)”. In the present case,
and by analogy, the judge adopted Males J’s reasoning
to the causing use without insurance offence, stating
that:
Background
The facts were that the clamant and a relative, both
teenagers without driving licences, were riding a
stolen motorcycle when it collided with another vehicle at a junction in Birmingham city centre. Neither
was wearing a helmet. The rider’s negligence was the
sole cause of the accident, but there was some dispute
as to which of them was at the handlebars. However,
the judge found that evidence at the time of the accident given by police, ambulance staff and lay witnesses
established that the claimant was the passenger on the
bike.
“[the] recovery of damages when a subsequently-injured
passenger has (even knowingly) caused a driver to drive without insurance contrary to s.143 RTA is not harmful to the
integrity of the legal system in the same way as dangerous driving. Again, a claimant is not compensated for the consequence
of his own criminal act in encouraging driving without insurance, but for the consequences of the driver's negligence in
injuring him and his foolishness can (and here in my view,
does) sound in contributory negligence.”
As a passenger, three wrongful acts might have been
laid at the claimant in order to establish the illegality
defence. If any of them stuck, the defence would bite
and bar his claim: its force is that it is a complete defence and not a partial one. The potential wrongful
acts were: (i) allowing himself to be carried in a vehicle known to be stolen or unlawfully taken (s12 Theft
Act 1968), (ii) dangerous driving (s2 Road Traffic Act
1988), and (iii) causing or permitting a vehicle to be
used without insurance (s143 RTA).
This conclusion would seem to be entirely obiter,
given that the judge did not find that the claimant had
caused the s143(1) offence.
For all these reasons, the illegality defence failed. But,
as suggested immediately above, the issue of contributory negligence was highly relevant. Reviewing the
well-known authorities, the judge noted that in
McCracken (above), failure to wear a helmet was one of
several elements of contributory negligence – assessed
in the aggregate at 65% by the Court of Appeal – that
had been “agreed at 15% because it would have
reduced injuries”.
Examination of witness evidence
After careful examination of the witness evidence –
that of the claimant in particular – the judge held that
none of these had been established.
First, he found on the evidence that the claimant did
not know or suspect the motorbike had been stolen.
The related questions of whether he knew or had reason to suspect it was not insured and what effect that
might have on the liability of the insurer or that of the
Motor Insurer’s Bureau were also examined but are
not addressed in this article.
The judge said he would have adopted this level if
failure to wear a helmet was the only contributory feature. It was not, and a modest increase to 20% was appropriate on the facts. The claimant and defendant
“may not have had a joint enterprise of joyriding, but they had
a joint enterprise of bad-decision-making… [however] bearing in mind the claimant's young age and inexperience, his
trust in the older first defendant who is clearly mainly responsible for the injuries and this being a case of poor decisionmaking by the claimant rather than reckless 'fun', the
Second, the facts as found did not amount to a joint
enterprise of dangerous driving, unlike the decision in
EXPERT WITNESS JOURNAL
12
JUNE 2025
