Legal Watch: Personal Injury 1st May 2015 Issue: 061
Ex turpi causa McCracken (Protected Party) v Smith (1); MIB (2); Bell (3) (2015) EWCA Civ 380 is the latest in a line of cases looking at the
In this issue:
it examines how the defence may operate differently for two
• Ex turpi causa
parties in the same accident.
• Damages/discount rate
The 16-year-old claimant/first respondent had been a pillion
• Damages/interim payments
respondent, another 16-year-old boy. Neither had been
• Watch this space
defence of ex turpi causa. It is of particular interest because
passenger on a trials motorbike ridden by the second wearing a crash helmet and the rider did not have a driving
licence or insurance. The bike had been stolen, was designed for a single rider and was being ridden too fast on a cycle path.
The defendant/appellant was driving a minibus, which collided with the bike. The claimant was seriously injured. The judge
found that the second respondent rider was liable to the claimant in negligence. He rejected the defence of ex turpi
causa relied on by the rider and the third respondent MIB, and, by implication, the defendant. The judge also found that the
MIB had not proved that the claimant had known or should have known that the bike was stolen, but had proved that he
knew it was being used without insurance and that the MIB’s liability was therefore excluded. He found that the defendant
had driven negligently, but reduced the claimant’s damages by 45% for contributory negligence. He apportioned liability
between the rider and the defendant in the ratio 80:20 but ordered that the defendant was to pay 90% of the MIB’s costs.
The defendant appealed submitting that the judge had erred
in (1) rejecting his defence of ex turpi causa; (2) finding that he had been negligent; (3) his characterisation of the claimant’s
role as “just going for a ride” rather than a “joyride” and, consequently, in the reduction of only 45% for contributory negligence; and (4) making the costs order.
Allowing the appeal, but only in part, the Court of Appeal held that the claimant’s conduct undoubtedly amounted to “turpitude” for the purposes of the ex turpi causa defence. The
• Jurisdiction
question was whether his claim against the defendant was
should have looked over his shoulder along the cycle
had been a joint enterprise to ride the bike dangerously
findings, the bike was there to be seen. Either he did not
founded on that turpitude so as to provide a defence. There and, although the negligent act was that of the second
respondent rider, the claimant was jointly responsible and
could not bring a claim against the rider in respect of his own negligent act. The judge had therefore been wrong to reject the defence of ex turpi causa in relation to the claimant’s claims against the rider and the MIB.
‘The accident had two causes: the dangerous riding and the negligent driving of the minibus…’ It did not necessarily follow that that applied to the claimant’s claim against the defendant. The dangerous riding of the
bike had no effect on the defendant’s duty of care or on
the standard of care reasonably expected of him. However, the causation analysis was more problematic. The accident had two causes: the dangerous riding and the negligent
driving of the minibus and it would be wrong to treat one
as the true “cause”. The fact that the criminal conduct was one of the two causes was not a sufficient basis for the ex turpi causa defence to succeed. The correct approach was to give effect to both causes by allowing the claimant to
claim in negligence against the defendant but, if negligence
was established, to reduce any damages for contributory negligence.
There was nothing wrong with the judge’s finding that the defendant had been negligent in failing to check for bikes on the cycle path. The judge had carefully explained why
the defendant should have been aware of the possibility that
one or more bikes were approaching. There was no basis for interfering with that assessment, founded as it was on
the particular circumstances of the case. Once that factor was accepted, the finding of negligence inevitably followed.
A finding of negligence would have been appropriate even
in the absence of that factor. On any view, the defendant 02
path before turning right. If he had looked, on the judge’s look or, despite looking, failed to see it.
The judge had erred in his characterisation of the claimant’s
role. He had been unduly generous to the claimant in
distancing him from the rider’s dangerous riding. It was “joyriding” and the proper inference was that the two boys
were parties to a joint enterprise, the essence of which was that the bike was to be ridden dangerously. That joint
enterprise rested on an implied agreement between them to participate. If, at the time of the accident, the claimant
was party to such a joint enterprise, his participation had to be regarded as a cause of his injuries. He 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 the claimant’s conduct was an overall deduction of 65% in his damages,
namely 50% plus the agreed deduction of 15% for his failure to wear a helmet.
The order that the defendant should pay the bureau’s recoverable costs was within the reasonable ambit of the judge’s discretion.
Damages/discount rate This periodical does not normally cover criminal injuries
been correct to adopt a discount rate of 2.5%. The 1990
v First Tier Tribunal (Criminal Injuries Compensation) and
without elaboration or complexity. It was not concerned
compensation claims but the case of LHS (Protected Party)
another (2015) EWHC 1077 (Admin) covers a discussion about the application of the discount rate and an attempt to introduce evidence to support a lower rate than 2.5%.
The claimant was entitled to compensation for criminal injuries and sought judicial review of a decision of the
defendant tribunal that the appropriate discount rate for future losses was that set by the Lord Chancellor under the S1(1) Damages Act 1996, namely 2.5%.
The Criminal Injuries Compensation Scheme which applied to the claimant’s case was the 1990 Scheme. Paragraph 12 of the Scheme provided that compensation would be assessed “on the basis of common law damages”.
‘...the expert evidence in his case showed that the application of a discount rate of 2.5% would lead to his being undercompensated’
Scheme was a practical document designed to be applied with sources of law, or with which principles happened to be purely judge-made as opposed to those which had a
statutory origin. The objective of the Scheme was to achieve for the victim of a crime of violence a financial outcome akin
to that achieved by the victim of a tortfeasor in a civil case. The only means by which that outcome could be attained was by applying the Lord Chancellor’s rate, because that was the rate systematically applied by the civil courts.
The application of common law principles in the strict sense was not the basis of assessment laid down in the Scheme. If those principles were to be strictly applied,
different outcomes would be achieved under the Scheme in comparison with the civil courts. Further, the assessment exercise would become far more technical and complex,
evidence would be required, and somewhat artificial distinctions would have to be made between judge-made
law and statute. Even treating the 1990 Scheme as a living instrument, it could not have been within the contemplation of its makers that evidence would and could be admissible
in every case to support the discount rate argued for. The assessment exercise would, on that hypothesis, be
considerably more complicated than that undertaken by judges applying the 1996 Act.
The claimant argued that the common law should apply untrammelled, without regard to statute; that would mean
that expert evidence could be adduced on the appropriate discount rate; the expert evidence in his case showed that
the application of a discount rate of 2.5% would lead to his being under-compensated.
Refusing the application, the High Court judge held that the
basis of assessment of common law damages required the application of the methodology which a civil court would adopt to a comparable claim. The tribunal had therefore
03
Damages/interim payments The case of Grainger v Cooper (2015) EWHC 1132 (QB)
Under the second stage the judge might include in the
payment, expressly to enable a claimant to purchase a
capitalised amounts of future losses. However, he could
involved consideration of an application for a further interim
assessment of the likely amount of the final judgment the
property before the trial of quantum.
only do that if he could confidently predict that the trial judge
The claimant, who was born in 1990, had suffered serious injuries in 2012 when she was thrown from the motorcycle
she was riding as a pillion passenger. The most severe injury was a spinal cord injury resulting in paraplegia. Liability was not disputed and judgment was entered with damages to be assessed. A trial date was set for January 2016. Substantial
interim payments were made. The amount for which credit
would have to be given at trial was £1,011,764. The claimant
was currently living with her parents and their house had been adapted to meet her needs. The instant application arose as she wanted to buy her own property which would
also need to be adapted. The net amount sought was £425,000.
The deputy High Court judge held that the starting point
was CPR 25.7(4), which stated that a court must not order
would wish to award a larger capital sum than that covered by the items falling within the first stage. Furthermore, the
judge had to be satisfied that there was a real need for the interim payment requested.
‘There was no reasonable necessity for the claimant to spend any money in respect of alternative accommodation before the conclusion of the trial’
an interim payment of more than a reasonable proportion
The stage one assessment was made on the basis that
comprised two stages, as set out in Eeles v Cobham (2009).
90% was £1,145,160. £1,011,160 had already been paid by
of the likely amount of the final judgment. The assessment Under the first stage the judge had to assess the likely
amount of the final judgment leaving out of account the
heads of future loss which the trial judge might wish to deal with by way of a periodical payment order. The allowable
heads of loss might comprise general damages for pain and suffering and loss of amenity, special damages to date,
interest on those heads, capitalised accommodation costs including future running costs. The assessment had to be carried out on a conservative basis. Provided that was done, a reasonable proportion might be high; proportions as
high as 90% had been awarded in the past. However, where
the interim payment requested exceeded a reasonable proportion of the likely award assessed, recourse might be had to the second stage.
04
the appropriate lump sum award was £1,272,400 of which
way of interim payments. That left a sum of £133,396 for a further interim payment. That was not enough to purchase
the property so the second stage had to be considered. The compelling problem for the claimant was that it was
manifestly obvious that there was no immediate reasonable necessity to purchase another property before the trial. The court took into account the fact that the claimant wished to
commence living independently of her parents in her own property and that suitable properties were scarce in the area where she wanted to live. However, she was adequately
accommodated in a property that had been recently adapted to cater for her needs. There was no reasonable
necessity for the claimant to spend any money in respect of alternative accommodation before the conclusion of the trial. In any event the instant case was not one where the
court could confidently predict that the trial judge would necessarily wish to capitalise heads of future loss.
The judge was conscious of the requirement that he should ‘take into account the level playing field argument’.
A further interim payment of £133,000 was awarded.
05
Jurisdiction In Moreno v MIB (2015) EWHC 1002 (QB) the High Court
addressed the effect of the coming into force of Rome II on
Vehicles (Compulsory Insurance) (Information Centre and
of tortious liability had, since Rome II, been the law of the
considered the conflict between the wording of the Motor
Compensation Body) Regulations 2003 and the affect, in other situations, of the Rome II regulations.
The English claimant had suffered severe injuries to her legs following an accident involving an uninsured driver while she was on holiday in Greece. She brought a claim against
the MIB under Regulation 3 of the 2003 Regulations and
liability was admitted. The level of compensation assessed under Greek law would have been lower than that which was payable under English law.
The MIB argued that since the coming into force of Rome II, Regulation 13 could not be applied so as to provide for a
level of compensation that was different from that obtainable in the country where the accident occurred.
‘...in a Regulation 13 claim…the law by which the assessment of compensation was to be made was England and Wales’ Finding in favour of the claimant on this preliminary issue,
the High Court judge held that in a Regulation 13 claim,
namely where a person from England and Wales had suffered an injury in another EU state at the hands of a
culpable but uninsured or unidentified driver, but was claiming in England and Wales, the law by which the assessment of compensation was to be made was England and Wales, i.e. the state where the court dealing with the claim was situated. The Court of Appeal in Jacobs (2011) 06
that issue; it stated that the law applying to the existence country where the injury was caused, but that the law by which the court assessed compensation remained English
law. That approach had also been subsequently endorsed
by the Court of Appeal in Bloy (2013). The court was bound
by Jacobs and Bloy on the interpretation of the Regulations. The court concluded that the effect of Regulations 13 and
16 was to create a cause of action enforceable as a civil debt, in which the compensation would be assessed on the basis of English law.
Watch this space We have tracked the progress of the case of Proctor v Raleys Solicitors because it is bound to cause great concern within claimant firms dealing with high volume, low value claims,
where there is a risk of under- settlement. Many of these
claims are handled with minimum contact with the claimant. The case has now reached the Court of Appeal and is reported at (2015) EWCA Civ 400.
He awarded £5,539.50 for the loss of the opportunity to pursue a services claim.
Dismissing the defendants’ appeal, the Court of Appeal
held that the judge correctly directed himself that the standard of care required of the defendants was that of
the reasonably competent solicitors specialising in that particular area of law. He noted that they held themselves
The claimant/respondent, a former miner, had developed
out to be specialists in industrial disease, and experienced
instructed the defendant/appellant solicitors to pursue
the scheme. He concluded that a reasonably competent
scheme set up by the Department for Trade and Industry.
sent out a series of long, standardised letters and expected
gave him advice without ever meeting him face-to-face. The
Rather, he would have had a discussion with the client to try
which incorporated tick-box reply forms. In November 2003,
judge also concluded that it was reasonably foreseeable
was paid in settlement of his claims for pain, suffering, loss
was entitled to make, and that it was not too much to ask a
vibration white finger as a result of his employment. He
in handling claims for miners, both generally and under
a claim for damages under a tariff-based compensation
practitioner specialising in that type of work would not have
The defendants received the claimant’s instructions and
the client to tick the correct boxes to reflect his instructions.
advice they gave him was contained in three standard letters
to ensure that he had understood the correspondence. The
the claimant agreed to settle his claim for £11,141. That sum
that the claimant might not fully understand what claims he
of amenity and handicap on the labour market.
solicitor to consult directly with the client and to advise him
Although the claimant had been entitled to claim for “services”,
namely
assistance
with
domestic
tasks
rendered necessary as a consequence of his disability, he had made no such claim. Although the standard letters
had referred to the possibility of a services claim, he had not pursued one. The claimant’s wife and son were helping
him with the household tasks he could no longer do, and he thought that he had to be paying for such help in order
to make a claim. That was not, in fact, the case. Although
a medical report alerted the defendants to the possibility
of the claimant having a services claim, they did not ask him why he was not pursuing one. He brought a claim in
negligence against the defendants, arguing that had they
properly advised him about the types of claim he could
make, he would have claimed for services and could have
in layman’s terms what a services claim was and whether he could potentially claim. Those conclusions were right.
‘...solicitors had to ensure that clients understood their advice, and they were not to let costs considerations prevent them from ensuring that they did...’
recovered an additional £11,079. The trial judge found that
The three standard letters were not clear in relation to the
ensure that he understood the advice they were giving him.
suggesting that the claimant was entitled to make such a
the defendants should have consulted with the claimant to
making of services claims, the defendants had information
07
claim, and he had passed up the opportunity of making such a claim. The situation had cried out for a short discussion
to ensure that the claimant understood the circumstances
in which a services claim could be made. Doing that over the telephone would not have greatly increased the costs.
In any event, solicitors had to ensure that clients understood their advice, and they were not to let costs considerations prevent them from ensuring that they did. What a solicitor
had to do to ensure that his advice was understood was a
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The first two did not make it clear that a services claim could
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had to be clear in their exposition, and the three in the instant
be made where there had been no financial outlay. Indeed,
they were capable of being read as indicating that only
financial loss could be compensated, and the third letter
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confirmed that reading. Moreover, they did not give a clear
exposition of whether a diminished ability, rather than a total
inability, to perform household tasks would be a sufficient
basis upon which to make a successful claim. While it was to the defendants’ credit that their system had generated an
internal reference to the possibility of the claimant having a claim, they had not followed that up by asking why he
was not instructing them to pursue it. To impose liability for
the failure to follow up did not involve the imposition of an unrealistic standard. The claimant could fairly be regarded as unsophisticated in the relevant field; the written advice given to him was unclear; and there were clear indications
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For more information please contact: Geoff Owen, Learning & Development Consultant T: 01908 298216 E: gro@greenwoods-solicitors.com
that he might not have understood that advice.
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