Tort | Negligence
Absolute Defence: Illegality
Revision Note | Degree
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Introduction
- defendant (D) can raise absolute defence: if claimant (C) engaged in illegal enterprise when harm occurred
- maxim
ex turpi causa non oritur actio
(no action arises from a disgraceful cause)
Application
- C's conduct must be very closely connected with the illegality or defence will fail
- plaintiff (P) severely injured as passenger in motorbike accident
- P encouraged driver who was drunk, uninsured & did not have licence
- could illegality be raised as a defence?
- parties were engaged in joint illegality & defence applied
- P was shot by D when he was trespassing on his allotment
- could illegality be raised as a defence?
- defence failed: D had used excessive force, disproportionate to P's conduct
- D negligently audited C's books causing loss
- however, C had been committing fraud
- could illegality be raised as a defence?
- defence succeeded: C had been acting fraudulently
- C severely injured in train crash caused by D's negligence & subsequently suffered mental breakdown & killed another person
- C detained & sought damages from D for loss of earnings
- could illegality be raised as a defence?
- defence successful: contrary to public policy to allow C to recover for damage as consequence of own criminal conduct
- Lord Hoffmann:
.. but for the tort, [the claimant] would not have killed. But the rule of public policy invoked in this case... is based upon the inconsistency of requiring someone to be compensated for a sentence imposed because of his own personal responsibility for a criminal act...
- C was convicted & fined for strict liability offence of trading as liquidated company
- C sought damages from D for allegedly giving negligent advice regarding matter
- could illegality be raised as a defence?
- defence successful: C could not recover for damage caused by his own illegal act