Pitts v Hunt [1991]
- Reported: [1991] 1 Q.B. 24; [1990] 3 W.L.R. 542; [1990] 3 ALL E.R. 344
- Year: 1990
- Court: Court of Appeal
<h2>FACTS:-</h2>
The Plaintiff who was aged 18, and a friend who was aged 16, spent the evening drinking at a disco before setting off home on the friend’s motor cycle with the plaintiff riding as a pillion passenger. The plaintiff was aware that the motor cyclist was neither licensed to ride a motor cycle nor insured. On the journey home the motor cyclist, encouraged by the plaintiff, rode the motor cycle in a fast, reckless and hazardous manner deliberately intending to frighten members of the public.
The motor cycle collided with an oncoming car and the plaintiff was severely injured. The motor cyclist, whose blood alcohol level was more than twice the legal limit for driving a motor vehicle, was killed. The plaintiff claimed damages in negligence against the personal representative of the motor cyclist and against the driver of the oncoming car.
The judge found that there had been no negligence on the part of the driver of the car and held that the plaintiff could not recover damages against the motor cyclist’s estate because the two were engaged on a joint illegal enterprise and the claim was barred by the maxim ex turpi causa non oritur actio and public policy.
The judge further held that the claim would have been defeated by the defence of volenti non fit injuria but for the fact that s 148(3)a of the Road Traffic Act 1972, by providing that any ‘agreement or understanding’ between the driver and a passenger of a motor vehicle had no effect so far as it purported to negative or restrict the driver’s liability to the passenger, precluded the defendants from relying on that defence in the context of a motor accident, and that in the event the plaintiff was 100% contributorily negligent.
The plaintiff appealed against the dismissal of his claim against the motor cyclist’s estate.
<h2>HELD:-</h2>
In the Court of Appeal it was held
Where one person was injured as the result of the actions of another while they were engaged in a joint illegal enterprise the issue whether the injured party was entitled to claim against the other person or whether his claim was barred by the maxim ex turpi causa non oritur actio was to be determined not according to whether there was any moral turpitude involved in the joint illegal enterprise but whether the conduct of the person seeking to base his claim on the unlawful act and the character of the enterprise and the hazards necessarily inherent in its execution were such that it was impossible to determine the appropriate standard of care because the joint illegal purpose had displaced the ordinary standard of care. Since the plaintiff had played a full and active part in encouraging the motor cyclist to commit offences which, had an innocent third party been killed, would have amounted to manslaughter by the commission of a dangerous act, the plaintiff ought not to be permitted to recover for the injuries which he sustained arising out of that unlawful conduct, on the grounds of the application of the maxim ex turpi causa non oritur actio, public policy and the fact that the circumstances precluded the court from finding that the driver owed any duty of care to the plaintiff. The appeal was therefore dismissed.
Per curiam (1) In the context of a plea of contributory negligence it is logically unsupportable to find that a plaintiff was 100% contributory negligent since the premise on which s 1b of the Law Reform (Contributory Negligence) Act 1945 operates is that there is fault on the part of both parties which has caused the damage and that the responsibility must be shared according to the apportionment of liability. Where (per Dillon and Beldam LJJ) the parties have engaged in a joint illegal enterprise and the parties are equally to blame the correct apportionment of liability is 50% each.
The effect of s 148(3) of the 1972 Act is that it is not open to the driver of a motor vehicle to say that the fact that his passenger could be said to have willingly accepted a risk of negligence on the driver’s part relieves the driver of liability for his negligence since the defence of volenti non fit injuria is precluded by s 148(3) in the context of a motor accident
<em>Winnik v Dick </em>1984 SLT 185 approved; dictum of Ewbank J in <em>Ashton v Turner </em>[1980] 3 All ER 870 at 878 disapproved.
Per Dillon and Balcombe LJJ. Section 148(3) of the 1972 Act does not have the effect that an express or tacit agreement by the parties to engage in a joint illegal enterprise involving a motor vehicle cannot be relied on to negative or restrict liability for negligent driving, since s 148(3) is concerned to preclude a defence of volenti non fit injuria but is not concerned with any defence of illegality and the section does not contemplate an illegal ‘agreement or understanding’ to carry out an illegal purpose.
Per Beldam LJ. If the driver of a motor vehicle commits a road traffic offence so serious that it would preclude the driver on public policy grounds from claiming an indemnity under a policy of insurance statutorily required to be effected for the benefit of a passenger, public policy will also preclude the passenger from claiming compensation if he is jointly guilty of that offence.
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