David Joyce was seriously injured when he fell from the
back of a van driven by his uncle, Edward O'Brien. This was no
innocent Sunday afternoon excursion: they were, in fact, speeding
away from the scene of a crime, having stolen some ladders.
O'Brien later pleaded guilty to criminal charges of dangerous
driving but maintained in the civil suit brought against him by his
nephew that their common criminal enterprise was a complete defence
to civil liability. In support of that, he (or his counsel) trotted
out the old maxim ex turpi causa non oritur
actio (loosely translated, 'don't expect to
recover if you yourself have been up to no good').
O'Brien's defence was successful in the trial court. Joyce
appealed: Joyce v O'Brien,  EWCA Civ 546.
Lord Justice Elias reviewed the authorities on criminal joint
enterprise from England and Australia, observing the law has
shifted from a rigid position that denies the existence of a duty
of care between participants in such an enterprise to a position
which recognises that the duty of care 'may remain intact even
where the conduct causing giving rise to the injury is in pursuance
of the illegal joint enterprise.' The law now also takes both a
narrow and a wider view of the ex turpi principle:
the narrow view is the civil courts will not compensate someone for
injury or disadvantage which a criminal court has imposed by
way of punishment for a criminal act; the wider version is that
'you cannot recover for damages which is the consequence of
your own criminal act'. The wider formulation gives rise to the
question whether the injuries at issue were caused
by participation in the criminal joint enterprise or whether
the enterprise merely 'provided the occasion for someone else
to cause something'. In the latter case, negligence in
driving the get-away car might not attract the ex turpi
principle -- unless the character of the joint criminal enterprise
is such that it is foreseeable that one or more parties to it will
be subject to unusual or increased risks as a result of
participation. On the facts of the ladder caper, Joyce's own
carelessness in taking the risks he did were sufficient to deprive
him of the right to recover compensation for his injuries, which in
the end were caused by his own criminal acts and his implicit
encouragement of his uncle's bad driving. This was not a case
to apply some flexibility or proportionality: nephew and uncle were
engaged in a crime punishable by a prison term of up to 7 years,
not some minor traffic offence.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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