Theex turpi causa non oritur actio is a legal principle founded in the Englishcommon law stating that an individual or organization who knowingly participatein illegalities cannot claim damages emanating from the activity. The maximapplies to tort, trust, property, restitution, and contract laws. The statutoryduty of care presupposes that a plaintiff suing in negligence must base his orher action upon the common law as the origin of the duty believed to have beenbreached.
When handling a case of negligence, the courts often consider wherethe parties were at the material time, and whether their undertaking was legal.In case they were engaging in an illegality and negligence was closely relatedto the illegal venture, the basic rule eliminating the duty of care will beapplied unless the plaintiff can successfully prove and argue that thesituation formed one of the recognized exceptions. When ex turpi causa isapplied, it deters the complainant from accessing damages1. Ex turpi causa is often considered as anillegality defense, and may be extended to immoral conduct.
The defense of ex turpi causa nonoritur actio could defeat a tortious claim if both parties were engaged inillegality. For example, in the case of Ashton v Turner and Anr., the plaintiffwas injured when the defendant, who was driving, crashed the car2.The incident occurred after both individuals had committed a burglary. The offenderhad been drinking and was driving negligently in a bid to escape. When thematter was brought to the court, Ewbank J.
dismissed it. He claimed thatbecause of the public policy, the law would not recognise the supposed duty ofcare owed to the claimant because they were participating in an illegalventure. Ewbank further held that although the duty of care was owed, theplaintiff had willingly accepted the risk of negligence and the resultantinjury. Apart from illegality, the maxim defeatsa tortious claim when the underlying action or undertaking is against publicpolicy. Notably, the policy in question is not grounded on a single reasoning,but a collection of reasons from different situations.
From the perspective ofpublic policy, the adage of ex turpi causa no oritur actio often defeat atortious claim because it is morally wrong for a lawless individual to takeadvantage of his crime. Nonetheless, the thinking is hard to apply when in atort law where the petitioner is seeking recompense for loss instead of desiringto make a gain. Some individuals have claimed that such an action should not beenforced in a contemporary law of tort. Because of the arguments, someprinciples have been formulated to guide the application of the maxim. Some ofthe principles include the reliance test, inextricably linked, no benefitprinciple, proportionality text, the public conscience test, and statutoryinfluence. The reliance test, in regards to theex turpi causa, considers whether the petitioner has to plead the illicitness.
The test, which is also known as the Bowmakers principle, directs that wherethe plaintiff has to plead illegality for the claim, action against the respondentwill not succeed. Under such a circumstance, the maxim will defeat a tortiousclaim. Nonetheless, where the plaintiff does not have to plead the illegality,action against the defendant may succeed. The situation was witnessed in theBowmakers Ltd v Barnet Instruments of 19453.In the case, the offender hired some equipment from the complainant through ahire purchase arrangement. The applied hire purchase plan did not adhere to thelegislative standards. When the defendant missed payments, the plaintiff wantedto recover the device.
However, the accused argued that the claimant hadengaged in an illegality by failing to adhere to the statutory requirements.The plaintiff was successful because it did not plead the illegal contractunderlying the claim. The claim was based on ownership of the machine, andthus, reliance on the illegality could not be introduced. The maxim can also defeat a tortiousclaim in an inextricably linked principle. Under the principle, it isnot mandatory for the accuser to claim illegality. In the case of Cross vKirkby, the accuser was a hunt vandal4.
Thedefendant was a landowner who got into an altercation with claimant when heforcibly removed the claimant’s girlfriend from his land. In response, theclaimant attacked the landowner. However, he was injured after being struck onthe head, leading to a skull fracture and subsequently epileptic attacks. JudgeLJ held that his claim was not liable to be conquered ex turpi causa unless itcould be proven that the underlying facts were inextricably associated with hiscriminal conduct.
The maxim can defeat a tortiousclaim when the public conscience test principle is applied. The principle isused to inform whether the conditions of the case will be an insult to thepublic conscience to permit the claimant to succeed. When applying the principle,the jury will consider whether permitting recovery will encourage or detercriminal behavior. The principle was used in the Thackwell v Barclays Bank Plc.in 19865.In the case, the plaintiff sued the bank for exchange of a cheque andnegligence. Barclays Bank raised the ex turpia causa because they believed the plaintiff’scheque was part of a fraudulent plan, which he was aware. Because the plaintiffwas aware of the fraudulent act, his action was unsuccessful.
Based on the statutory influenceprinciple, the maxim can defeat a tortious action. In many instances, courtshave been influenced by statutory policy goals. For instance, in the case ofRevill v Newberry, it was applied because the 1984 Occupiers Liability Actsafeguarded non-visitors6.Thus, it was assumed that the parliament never meant to disqualify recovery tointruders who suffered injury. Under such a circumstance, intruders could notsuccessfully make tortious claims. The maxim also defeats tortiousclaims where the plaintiff is in police custody and attempts suicide orsustains injuries while trying to escape. Concerning attempted suicide in thecustody of law enforcement agency, the defense will not be successful becauseit is an immoral act.
In the case of Kirkham v Chief Constable of the GreaterManchester Police, the defense failed because the complainant was of unsoundmind. Ex turpi can prevent a claimant from recovering in a circumstance whereinjuries are sustained when attempting to escape from prison. The maximdefeated a tortious claim in the case of Vellino v Chief Constable of GreaterManchester. Where a petitioner commits a crimeand asserts that the act could not have occurred if the respondent had not beencareless, the issue of whether the individual can recover from loss of libertyarises. In the case of Meah v McCreamer, it was ruled that a petitioner undersuch a circumstance could recover damages7.However, in the cases of Clunis v Camden and Islington Health Authority and Warrallv British Railways Board, the Court of Appeal ruled that the public policyprohibited recovery8. The maxim also defeats atortious claim in the case of a joint criminal enterprise.
Any party to a jointcriminal enterprise cannot recover in the event of a tortious occurrence. Theprinciple was demonstrated in the case of Colburn v Patmore of 18349. Partb The law concerning the ex turpicausa non oritur actio is sufficiently clear because it has been developed forat least two centuries. Over the years, many legal experts have analyzed itsapplications and developed numerous principles that could inform users in thecourts.
The circumstances where the maxim can be introduced in the court havebeen clearly outlined. Besides, judges can refer to hundreds of cases, rulings,and reasoning that have been used over the years. The principles that have beenformulated, which include statutory influence, the public conscience test,proportionality test, no benefit principle, inextricably linked, and reliancetest plays an instrumental role in informing the jury’s reasoning and decisions10.Besides, other circumstances where ex turpia causa can be applied have beenlisted. The circumstances include suicide, injuries emanating from escape fromcustody, damages for loss of liberty, and joint criminal enterprises. Apart from the principles andcircumstances, the law is also applied based on various policies, whichenhances its clarity. The policies underlying the ex turpi causa non orituractio law include consistency, deterrence, and the need to preserve the uprightnessof the legal system.
The policies also include prevention of profiting fromillegality and the need to further the intent of the rule infringed throughillegal conduct. When reaching a decision, the jury often exercises a carefulbalance between achieving just result and the strength of the policies. Thecourt also takes into account the proportionality of rejecting the claim andthe comparative merits of the parties. The court is required to make a clearjustification whenever an illegality defense is successful. Because the law is too broad, itpaves the way for lack of clarity, especially when new cases emerge. Forinstance, treatment of third-party liability under the ex turpi causa nonoritur actio is not clear and may result in passing the buck. The applicationof ex turpia causa in the fields of insurance and indemnities is stillunderdeveloped. Some grey areas concerning the treatment of third parties inthe event of a damaging occurrence remain.
Recent cases indicate that in some situations,third parties can be held responsible for another’s criminal penalty11. Forexample, if an insurance broker negligently assures a driver that he iscovered, in the event of fine arising from driving without insurance, thedriver can recover the amount from the service provider. When it can be proventhat a third party played a role in the case, the individual or organizationcan be held liable.
Application of the maxim in professional indemnity cases isdifficult because of certain self-limiting reasons. For instance, a traderprovides full information and requests an accountant to prepare accounts andproduce correct information. However, the accountant may negligently fail toprovide correct information, making the trader vulnerable to fines.
When such acase is tabled before a civil court, it may be difficult to prove thedefendant’s negligence. 1W. V. Horton Rogers, “Ex Turpi Causa Non Oritur Actio,” Liber Amicorum Pierre Widmer,2003, 16, doi:10.
1007/978-3-7091-6094-7_18.2Ashton v Turner and Anr. 1981 l QB3Bowmakers Ltd v Barnet Instruments Ltd 1945 KB 654Cross v Kirkby 2000 EWCA Civ 426 (AC)5Thackwell v Barclays Bank Plc 1986 1 All ER 6766Revill v Newbery 1996 2 WLR 2397Meah v McCreamer (No. 2) 1986 1 All ER 9438Chris Turner, Key Cases(Hoboken: Taylor and Francis, 2013), 36.
9Colburn v Patmore 1834 Exch 1 CM & R 7310Horton Rogers, “ex turpi,” 88.11Philip Osborne, The Law ofTorts, Second Edition (Toronto: Irwin Law, 2015), 58.