1. PERSONAL INJURY UPDATE
JULY 201518 ST JOHN STREET CHAMBERS NEWSLETTER
INSIDE
Ian Huffer provides his regular Personal Injury Law update. This month he provides updates
on Ex Turpi Causa, Breach of Duty, Road Traffic and Costs. Mr Huffer’s IN BRIEF section deals
with Procedure, Mesothelioma and Appeals.
EX TURPI CAUSA
In McCracken v Smith [2015]
EWCA Civ 380 the Court of
Appeal had another opportunity
to review the evolving case law
on ex turpi causa.
The 16-year-old Claimant had
been riding as a pillion passenger
on a stolen trials bike driven by
the first Defendant, the
Claimant’s friend. He was an
uninsured unlicensed driver and
the bike was not permitted to be
driven on roads or to carry
passengers, the presence of
which reduced the stability of the
bike and the efficiency of its
brakes. The first Defendant drove
the bike dangerously and
collided with a minibus driven by
the Third Defendant (Darren Bell).
The Claimant sustained brain
damage and claimed damages
in negligence against First and
Second Defendants and against
the MIB (Second Defendant).
The trial judge found that the
claim did not fail on the ground
of ex turpi causa. The cause of
the injuries was not the
Claimant’s decision to be carried
on the bike but the way the bike
was being ridden. The fact that
he knew that the first Defendant
was likely to ride dangerously did
not make him a party to the way
the First Defendant in fact rode
the bike, and as the Claimant
was not encouraging the First
Defendant to ride recklessly but
was just along for the ride, the
Claimant was not engaged in a
joint criminal enterprise; and that
accordingly the defence of ex
turpi in respect of the First
Defendant and the MIB did not
succeed and did not need to be
considered in respect of the Third
Defendant. He found that
Claimant knew the bike was
being used without insurance
and that as a consequence the
MIB was excluded from liability by
clause 6(1)(e)(iii) of the Uninsured
Drivers Agreement. He found that
the Third Defendant was
negligent but reduced the
Claimant’s damages by 45% in
respect of his contributory
n e g l i g e n c e . T h e j u d g e
apportioned liability between the
First and Third Defendants at 80%
and 20% respectively. The Third
Defendant appealed.
The Court of Appeal disagreed.
The proper inference was that
the Claimant and the First
Defendant were parties to a joint
enterprise, the essence of which
was that the bike was to be
ridden dangerously, a conclusion
reinforced by the fact that the
Claimant did not avail himself of
the opportunities to dismount
from the bike when it was being
ridden dangerously. The
Claimant was more than a mere
passenger and his presence was
and was intended to be an
encouragement to the First
Defendant to ride as he did.
There was a joint enterprise to
ride the bike dangerously and
the increased risk of harm as a
consequence of such riding was
plainly foreseeable (Joyce v
O’Brien [2014] 1 WLR 70), such
that the Claimant's injury could
properly be said to have been
caused by his own criminal
conduct even though it resulted
from the negligent act of the First
Defendant. As the Claimant was
jointly responsible for the First
Defendant’s negligent act, he
could not bring a claim in
respect of his own negligent act
and the judge was wrong to
reject the defence of ex turpi
causa in relation to the claim
against the First Defendant and
(MIB) albeit that their claims were
not the subject of the appeal.
As regards the Third Defendant,
w h i l s t t h e C l a i m a n t ’ s
participation with the First
Defendant in a joint enterprise to
ride the bike dangerously did
amount to turpitude (Les
Laboratoires Servier v Apotex
Inc [2015] AC 430), the
Claimant’s claim was not
founded on that turpitude
because his injury was not just the
consequence of his own criminal
conduct. The accident had two
causes, the dangerous
driving of the bike and
the negligent driving of
1

2. 18 ST JOHN STREET CHAMBERS NEWSLETTERJULY 2015
the minibus by the Third Defendant
and 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. It
was wrong to treat one as the mere
"occasion" and the other as the true
"cause". This was materially different
to a case involving a claim by one
party to a criminal joint enterprise
(the Claimant) against another
party to that joint enterprise (the First
Defendant). The claim against the
Third Defendant should be allowed
but reduced to reflect contributory
negligence. The trial judge fell into
material error in characterising the
Claimant’s role as allowing himself to
be a pillion passenger. It extended
to his participation in a criminal joint
enterprise to ride the bike
dangerously and a fair reflection of
t h e g r e a t e r d e g r e e o f
blameworthiness and causative
potency of the Claimant’s conduct
would be a deduction of 65% in his
damages (including an agreed
deduction of 15% to reflect not
wearing a helmet).
Breach of Duty
In ABC v St George’s Healthcare NHS
Trust [2015] EWHC 1394 (QB) the
Claimant sought to bring a claim in
negligence against the Defendant,
where they had been treating her
father under a hospital order. The
father had then been diagnosed
with Huntington's Disease but
refused the hospital permission to
inform his pregnant daughter, even
though there was a 50 percent
chance of her having the disease.
When she was diagnosed with the
disease, the daughter claimed
damages for psychiatric damage
and additional expense claiming
that if she had known earlier she
would have undergone the test and
if positive would have terminated
the pregnancy on the basis that she
was owed a duty of care in
negligence and that her right to a
private and family life was infringed,
contrary to the Human Rights Act
article 8.
Nicol J struck out the claim on the
basis that there was no reasonably
arguable duty of care and the claim
was bound to fail. This is not a case
where the Claimant could show that
a novel duty of care would be an
incremental development from
some well-established duty. It would,
on the contrary, be a radical
departure to impose liability in
circumstances such as these.
It was not disputed by the Claimant
that the starting point was that the
Defendants were obliged to respect
the confidentiality of his medical
i n f o r ma t i o n . T h e d u t y o f
confidentiality might not always be
absolute and it did not create a
duty of care.
The Claimant was seeking to impose
liability for an omission, a failure to
inform her of her father's condition
and there was neither a special
relationship between Claimant and
Defendant nor had the Defendant
assumed a responsibility for the care
of the Claimant. Further, the
Particulars of Claim did not show a
breach of article 8.
Road Traffic
In Buswell v Symes [2015] EWHC 1379
(QB) the Claimant was riding his
motorcycle on a single file road
(speed limit 60 mph) and collided
with the First Defendant (the MIB
being Second Defendants) who was
driving a tractor with a trailer. Just
before the collision site there was a
hill with no visibility over its brow and
at the bottom the exit from which
the Defendant emerged which was
not a formal road or track but a hole
in the hedge. On the trial on liability
The Claimant argued that the
Defendant was negligent in using
that exit when there were
alternatives available and the
Defendant argued that the
accident was solely caused by the
speed of the motorcyclists and he
could not have done anything to
avoid the accident.
The Judge (Supperstone J) found
the Def endant’s evi dence
unsatisfactory and contradictory
and that he had exaggerated the
problems of using other exits from
the field. He further found that he
knew motorcyclists used the road
and appreciated the risks he was
taking when using the exit. The
Defendant was negligent as he
either foresaw the danger and took
the risk or did not foresee it when he
should have.
Based upon the expert evidence
the judge concluded that the
Claimant was driving too fast (near
to 70 mph) at the brow and was
held to be two thirds contributorily2

3. 18 ST JOHN STREET CHAMBERS NEWSLETTER JULY 2015
negligent. There were obvious
dangers associated with driving at
speed over a blind summit which
the Claimant ought to have
appreciated running a very great
risk of colliding with anything that
may have been in the road over the
hill.
The judge rejected the Defendant’s
argument that because there was a
finding of contributory negligence
there should be an issued based
costs order with the Claimant
paying the majority of the costs. The
Defendant was ordered to pay all
the Claimant’s costs on the basis
that he was the successful part and
the Defendants had never made
any offer of settlement by Part 36 or
otherwise (Onay v Brown [2009]
EWCA Civ 775 and Sonmez v
Kebabery Wholesale Ltd [2009]
EWCA Civ 1386).
Costs
In Transformers and Rectifiers Ltd v
Needs Ltd [2015] EWHC 1687(TCC)
Mr Justice Coulson said that not only
was there nothing in the rules (part
44.6) or practice direction which
prevents a different judge from
summarily assessing the costs of a
hearing conducted (or an order
made) by a different judge but a
blanket prohibition would make no
practical sense. In the majority of
cases it will be appropriate, even
necessary, for the same judge to
conduct the summary assessment
such as where was a contested
hearing and the detail of any
summary assessment exercise
carried out thereafter depended on
the views formed by the judge.
In Cashman v Mid Essex Hospitals
NHS Trust [2015] EWHC 1312 (QB)
Slade J allowed the receiving
party’s appeal where she had beat
her own Part 36 offer on costs as to
be entitled to an additional £17,000
(10% of the costs assessed) under
CPR 36(14)(3)(d) even though the
costs claimed had been reduced
significantly on detailed assessment.
IN BRIEF
Procedure
A number of civil reforms relevant to
the handling of personal injury
claims came into force on 6 April
2015 including amendments to the
CPR Part 36 rules, the introduction of
Medco for the instruction of experts
in whiplash claims, and revised
protocols in personal injury and
clinical negligence.
Mesothelioma
While the court was divided as to
how to achieve the result, the
majority in the Supreme Court in
International Energy Group v Zurich
[2015] UKSC 33 held that there was
an equitable right of contribution
against co-insurers and an equitable
right of recoupment for insurers
against their insured (if solvent)
where the insured had no
employer’s liability insurance for part
of the period of asbestos exposure.
This means that in mesothelioma
claims, where insurance does not
cover the whole period of asbestos
exposure, insurers can seek a
c o n t r i b u t i o n f r o m s o l v e n t
policyholders and where the policy
holder is insolvent, insurers will pay
the whole claim.
Appeals
In Vann v Ocidental [2015] EWCA
Civ 572 where the Court of appeal
allowed the Defendant’s appeal on
contributory negligence, Jackson LJ
said that whilst "[the Court] must not
disturb the judge's finding of primary
fact", "the Judge's finding that [the
two pedestrians] were keeping a
proper look out....is not...a finding of
primary fact at all".
The trial judge’s finding that the two
pedestrians were keeping a proper
look out was not a permissible
inference drawn from the primary
facts of the case. .
IAN HUFFER
civil@18sjs.com
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Ian Huffer is a member of
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Department dealing in all
areas of Personal Injury
litigation including high
value claims, road traffic
and industrial accidents
and industrial disease
claims.
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