CONSULTATION PAPER NO 160 : THE ILLEGALITY DEFENCE IN TORT
ResponseGenerally1. The undersigned were invited by Malcolm Swift Q.C., leader of the North Eastern Circuit, to respond to the above paper. Both are predominantly personal injury practitioners and have sought to address the questions posed by reference to their particular practices.
2. Though, at first sight, it struck us that the topic was a narrow one, on further reflection we realised just how often the point arose. The Pitts v- Hunt/Ashdown v- Turner type of case is frequent. In recent times we have had experience of:-
3. That simple recital indicates not only that the problem is not uncommon but also that the same solution should not necessarily apply in each and every case. 4. We were also struck by the references to the position appertaining under various statutory schemes and in particular the Motor Insurer?s Bureau Agreement and the Criminal Injuries Compensation Scheme. It strikes us that the limitation in respect of alleged illegality on the part of the claimant is particularly onerous in both such scenarios and although one can understand a public purse argument operating that is perhaps insufficient justification for the very real difference that might arise in, for example, a Pitts ?v- Hunt type case where, if the defendant driver happened to be insured, a claim on behalf of the "guilty" passenger might still succeed but the prospects of a claim under either of the schemes would be negligible. Though we understand the "public purse" argument the contrast is still potentially a stark one. 5. We are unable to note within the consultation paper any consideration of the practical question whether the rules governing potential recovery in such situations would in fact necessarily lead to compensation being recovered. Regard must surely be held to the terms of any contractual arrangement as between a defendant and his insurer. If the insurer seeks to avoid liability where the defendant (and the victim) were engaged in criminal or quasi-criminal activity (a not uncommon provision) then a claim might under the new proposals succeed but the enforcement of any award might, in certain circumstances prove more problematic. This is a point which should we think be specifically considered. 6. Finally, we were surprised that there was no discussion within the paper of the related question as to damages where the damages themselves might have some "illegal" component. Clearly the burglar injured in a road traffic accident would be unable to put forward a claim for the loss of his burgling income. That would indeed fall foul of the general principle that one should not profit from one?s wrong doing. There is a well established rule in relation to earnings not declared for income tax. The "philosophy" underlying such rule appears to fit well with the rationale ultimately preferred in the consultation paper. 7. Before seeking to answer, in short form, the specific questions posed one other general observation struck us. There is some considerable discussion of the decision is Meah and McCreamer and indeed at paragraph 4.4 the Commission has questioned the "correctness" of that decision. If the medical evidence were in fact to establish (as it apparently did in that case and has, to the author?s knowledge, in other similar scenarios) that the criminal conduct would not have arisen but for the tort alleged then on normal tort principles it is difficult to see why there should not be recovery and why the recoverable damages should not include some element to reflect not only loss of income whilst incarcerated but perhaps some additional element within general damages (for loss of amenity) to reflect such matter. If a decision is taken that it would be inappropriate to allow such recovery then we are far from sure that the answer is to be found in the illegality doctrine but rather courts should be "open" and should say that as a matter of public policy it would be inappropriate to award damages in respect thereof. There is nothing unusual in this. The much-criticised House of Lords decision in McFarlane ?v- Tayside Health Authority provides perhaps one example of a situation where for public policy reasons damages which would otherwise be recoverable under normal tort principles are held not to be recoverable. If Mr Meah?s conduct had fallen short of criminality but had merely resulted in some anti-social behaviour then that matter could well have been reflected in damages and if the effects of the head injury were to render him not responsible for his actions it seems inappropriate to simply deny recovery on the grounds of "illegality". The Rationale 8. Many of the questions posed are in fact directed towards this particular matter. We recognised the importance of the question posed though wonder, we hope appropriately respectfully, whether in many county courts, the local judge would not simply say that "though it was hard to describe the elephant it was instantly recognisable". We recognise however that that approach would lead to inconsistency and is thus undesirable. Thus seeking to address the specific questions :-i) The burglar apprehended by the over enthusiastic police dog suing for bites sustained during the course of the arrest; ii) The drug addict complaining of negligent treatment when admitted in respect of an overdose; iii) One prisoner suing the Home Office for injuries sustained at the hands of another with whom he was sharing a cell and to whom he had made inappropriate sexual advances; iv) Less obviously an independent contractor, himself guilty of offences under the Construction Regulations, suing the main contractor in respect of similar breaches.
i) Punishment can have no part to play as a rationale ? questions of punishment are for courts and other jurisdictions (paragraph 7.2). ii) By way of contrast, in an exceptional case, whether the rationale be described as preserving the dignity of the courts or avoiding public outcry there will be those exceptional cases where the court can have regard to such matters in rejecting a claim. Unhappily the obvious example is the one discussed in the text and undoubtedly the public would be affronted, in some circumstances, by the idea of the burglar recovering damages. If the burglar is to recover damages in such circumstances then the court needs to be able to spell out precisely why he is doing so (paragraph 7.3). iii) We frankly doubt whether the conception of deterrence has any real role to play. If the criminal law poses no or only little deterrence it is difficult to see that the denial of a remedy, which would otherwise be available, is likely to have any impact save perhaps in the specific example envisaged at paragraph 4.3.1 (paragraph 7.4). iv) We agree with the distinction drawn at paragraph 4.40. The burglar who is injured by the grossly excessive use of force on the part of the householder should not be able to claim against the householder that, but for the injuries sustained, he would have continued his successful career and earned an average £500 per week. That would be quite monstrous. Not only would it affront the dignity of the court but it would allow him to profit from his own wrong doing. It would be an entirely different matter however if he were to be denied appropriate compensation for the very severe injuries he had sustained at the hands of the over-enthusiastic householder (7.5). v) We agree with the view expressed at paragraph 7.6
vii) We agree with the observations at paragraph 7.8.vi) Though we understand the discussion appearing at paragraphs 4.56 to 4.58 we think that frankly such is no more than an application of a public policy doctrine. These are not the kind of damages that courts would wish to be seen to award. Of course, that might be described as consistency in the sense of furthering the purpose of the rule, but we think it inappropriate to conceal that there is a real public policy argument operating at this point.
Thusviii) We find the discussion of the rationale by McLachlin J in Hall ?v- Hebert, as summarised at paragraphs 3.33 and 3.35, compelling. We would only add that the "problem" becomes less obvious if, in addition, regard is had to the distinction between those cases where the injury arises directly out of the claimant?s illegal conduct and those where (to use the words appearing at paragraphs 7.16) the injury was "in any way connected to" such illegal act. The distinction is obvious. The overdosed heroin victim who has come by their illicit drugs illegally is still entitled to expect that they would be properly treated in hospital. A burglar is entitled to assume that when he holds his hands up the police dog will be called off and not set upon him. These are important distinction and ones which the public would, if properly educated, readily accept.
The Case for Reformix) We expect that it is only in very unusual cases where the claimant?s illegal act will be such as to entirely preclude his claiming damages.
9. Thus dealing with paragraph 7.12 we do agree with the provisional proposal that a defence of illegality should be retained but that equally it should be recognised that such has only a limited ambit. 10. Similarly we entirely agree that given a possible overlap between claims in contract and tort the criteria that govern the application of the defence should as far as possible be common. The Options for Reform
11. If cases of this kind are not uncommon we can well anticipate that a judicial approach to such cases could well differ and thus there should be some clear guidance. Such is best given, it seems to us, by legislation provided always that it is recognised that not all cases will readily lend themselves to the terms of a statute and there must be some residual discretion. 12. Thus we entirely agree with the proposal appearing at paragraph 7.16 and we would further hope (7.17) that so far as possible there should be some consistency as between tortious and contractual claims. 13. Thus subject to the point made as to deterrence the list of "factors", particularly when added to by that identified elsewhere (the closeness of the association), would seem appropriate. The consultation paper does not address in detail whether that list should be exhaustive or (as for example is the Limitation Act discretion) merely illustrative. Whilst there is much to be said for requiring a tribunal to "run down a check list" it might be wise to assume that not all possible scenarios can be envisaged in advance. Although objections to any generalised discretion have some weight (in that they possible prejudice consistency of approach) we would, on balance favour the list as merely being illustrative and the use of some such phrase as "all the circumstances and in particular?".
17. We have already addressed question 7.22 above.14. As already illustrated by the heroin overdose case a closer degree of connection appears to us to be critical. To revert to the Pitts ?v- Hunt type of scenario there is a significant difference between a case where the passenger in the get away car actively encourages dangerous driving and where he is merely the silent passenger in a car after a bungled raid which is driven in a similar fashion. The decision in Pitts ?v- Hunt may will be justified in the former case but is less easily justified in the latter. The justification would become still less strong if, for example, dangerous driving and subsequent injury had occurred not after the raid itself but after the two had been out on a preliminary reconnaissance. The illegality would be the same. This was a "criminal journey" but the degree of connection would be entirely different. 15. Again consistency with other causes of action would seem appropriate (paragraph 7.19). 16. As to paragraph 7.20 it must of course be remembered that the knowledge/ intent of the defendant is always a factor to be considered by the court (as to whether or not liability itself will be established). Indeed we can imagine circumstances where that knowledge or intent might be relevant in other circumstances such as, for example, whether there could possibly be any element of exemplary damages ? the grossly over-exuberant police officer restraining a criminal caught in the act is perhaps one example. However, in considering this particular defence once a decision is taken to list the relevant factors we would not favour specifically requiring the court to address this matter for the reasons identified at paragraph 6.36. Similar observations applies in relation to proportionality (paragraph 7.21).
18. The concept of weighting is a novel one and might be thought too tightly to constrain the exercise of what is described elsewhere as a true discretion (albeit a structure one). 19. The question of contributory negligence is a particularly interesting one. Allegations of "illegality" can readily be "dressed up" as allegations of contributory negligence. Where questions of illegality do not themselves arise then the passenger who encourages the defendant driver to, for example, shoot a red light would no doubt find it being pleaded against him that he was contributorily negligent (or indeed that he was, if the phrase can still be used, volenti). Strictly the Claimant would be guilty of an illegal act. Indeed the most usual allegation of contributory negligence (failing to wear a seat belt) is itself an illegal act. 20. We recognise however that it might be said to be different in principle to allow a judge expressly to recognise society?s "disapproval" by awarding less than true compensation simply on the grounds of such "disapproval". Equally however it must be recognised that in such cases there is an understandable "temptation" to see that a claimant does not go away uncompensated but also that he receives what is perceived to be "appropriate" bearing in mind his own conduct. Indeed in deciding questions of contributory negligence questions of blameworthiness are of equal weight to causative potency. On balance we do not favour granting a specific power to reduce damages to reflect the claimant?s legal conduct. We recognise that to distinguish that illegality from blameworthiness (under the Act) is not always an easy distinction (paragraph 7.25). 21. Once it is determined that there should be a discretion with a list of relevant factors what should be the starting point? If, as we think right, the defence should not be given too wide an ambit then the proper starting point must surely be that the claim will be allowed unless the Defendant establishes the relevant matters. That accords with the general burden which would otherwise operate (paragraph 7.26). 22. The question raised at paragraph 7.28 is, as the text makes plain, specifically based on the rather unusual facts of Meah ?v- McCreamer (No 2). Those facts are unusual and for that reason care should be taken before introducing any general exception to an otherwise established rule. The practicalities of the situation must not be forgotten. Could a claimant whose claim would otherwise be defeated by the illegality doctrine separately claim, for example, in respect of the costs of/value of care given him by a loving (and innocent) relation. Though one understands the distinction between that and the true indemnity case there is an analogy to be drawn and thus we think the best answer might be not to create a special rule for "third party claims" and to leave those to the (unsatisfactory) statutory regime. Conclusion 23. We are conscious that we have merely given short answers to interesting philosophical questions but we have sought to address the matter from the perspective of the ordinary civil personal injury practitioner.STUART C. BROWN Q.C.
RICHARD COPNALL
