A mixed signal on illegality? Supreme Court refuses permission to appeal in McCracken

In McCracken v Smith & Ors [2015] EWCA Civ 380 (22 April 2015) the Court of Appeal (Richards, Underhill and Christopher Clarke LJJ) heard an appeal from Keith J. in a case involving the application of the principles of ex turpi causa and contributory negligence in a case where the claimant was a pillion passenger on a trail bike being ridden dangerously.

The facts

A trail bike had been stolen or unlawfully taken. It was not allowed on normal roads.  At the time of the accident, it was being ridden at speed on a cycle path by a 16-year old boy, DS, and with the claimant, Daniel McCracken, as a pillion passenger.  DS was uninsured. The bike was not designed to carry a passenger.  Both boys were not wearing helmets.  There was a collision with a minibus driven by DB.  The boys were seriously injured.

The claimant brought a claim against the rider, DS, the Motor Insurers’ Bureau and DB.  The MIB argued that the claimant’s claim was barred by reason of the claimant’s participation in the wrongdoing at the time of the accident, or that the claimant was contributorily negligent and his damages discounted, or that its liability was excluded because the claimant knew or ought to have known that the bike had been stolen or unlawfully taken and that it was being used without insurance.

The decision of the Court of Appeal

Lord Justice Underhill upheld the trial judge’s finding that the claimant’s claim was not barred by the application of the ex turpi causa doctrine.  He said:

the judge was right to reject the ex turpi causa defence in relation to Daniel’s claim against Mr Bell, albeit my reasons are very different from those of the judge. The relationship between Daniel’s turpitude – his participation in the joint enterprise to ride the bike dangerously – and his claim in negligence against Mr Bell is not such as to debar the claim. The causal contribution of the dangerous riding of the bike for which Daniel was responsible can and should be taken into account in the assessment of his contributory negligence.

As to contributory negligence, the trial judge’s finding of an appropriate reduction of 45% was overturned and the claimant was determined to be contributorily negligent justifying a 65% reduction in damages.  Lord Justice Underhill stated:

In the present case … I am satisfied that the judge fell into material error in his characterisation of Daniel’s role. Daniel’s fault went beyond allowing himself to be a pillion passenger on the bike. It extended to his participation with Damian in a criminal joint enterprise to ride the bike dangerously. Daniel was therefore the author of his own misfortune to a greater extent than allowed by the judge. A fair reflection of that greater degree of blameworthiness and causative potency of Daniel’s conduct would in my judgment be an overall deduction of 65% in his damages (i.e. 50%, plus the agreed deduction of 15% for failure to wear a helmet), as compared with the overall deduction of 45% ordered by the judge. It is plainly open to this court, in line with the principles in Jackson v Murray, to make such an adjustment, attributing to Daniel the greater share of responsibility for his injuries rather than the lesser share attributed by the judge. I would so order.

The defendants applied to the Supreme Court for permission to appeal

The Supreme Court

On 30 July 2015, a panel of the Supreme Court (Lady Hale, Lord Hughes, Lord Toulson) refused permission to appeal.

Interestingly, it is stated in the Court’s summary that:

Permission to appeal be refused because the application does not raise a point which ought to be considered by the Supreme Court at this time. While not endorsing the reasoning of the Court of Appeal on the ex turpi causa point, the Panel considers that the result was correct

There now seems to be some uncertainty cast on the persuasiveness of the decision of the Court of Appeal on the ex turpi causa point.

Judgment: McCracken v Smith & Ors [2015] EWCA Civ 380 (22 April 2015)