An appropriate basis for denying the recovery of damages in tort
on the ground that the plaintiff has been guilty of illegal wrongdoing has
for long been a matter of debate in the common law courts. We can find a
number of different justifications in the cases, with significant contributions
being made by the House of Lords and the UK Supreme Court, the High
Court of Australia, and the Supreme Court of Canada. The article examines
the various arguments, makes suggestions as to what is helpful and what is
not, and concludes by identifying the key questions to ask in any case where
the illegality issue is raised.
Sometimes a claim by a litigant who suffers harm whilst committing a criminal
offence is barred by the application of the common law doctrine known as ex turpi
causa non oritur actio. This may be translated as “no cause of action arises from
a shameful cause”. A convenient way of expressing the doctrine or maxim is to
say that in certain circumstances a litigant’s claim may fail on account of his own
unlawful or illegal conduct. Although often referred to as a defence, the doctrine also
can operate as a denial of an element of a plaintiff’s cause of action.
may have significant implications, for example as regards the burden of proof.
An appropriate basis for denying the recovery of damages in tort on the ground that
a party, usually the plaintiff, has been guilty of illegal wrongdoing has for a long time
been a matter of debate. A recent formulation in the Court of Appeal in England treated
the core of the principle as not criminality but causation — whether what the claimant
himself did was the cause of the harm he suffered, even if there was also wrongful
conduct on the defendant’s part without which the harm would not have occurred.
Yet it was said in a joint judgment in the High Court of Australia that developing
the law relating to the significance of a plaintiff’s illegal conduct to recovery by that plaintiff in negligence by reference only to notions of causation would inevitably lead
the law into a “logical and legal labyrinth”.
Indeed, in Gray v Thames Trains Ltd,
Lord Hoffmann recognised that the maxim ex turpi causaexpressed not so much a
principle as a policy, and also that the policy was not based upon a single justification
but on a group of reasons, which varied in different situations. Certainly, the scope of
the maxim remains disputed and its application frequently is unpredictable.
There are at least eight justifications or arguments to be found in the cases.
First, there is a reliance test; so a plaintiff who needs to rely on his own illegal
conduct is barred. Second, illegal conduct by the plaintiff may be seen as going
to the question whether in the circumstances the defendant owes the plaintiff a
duty to take care. Third, assuming a duty, the question arises whether the courts
can lay down a standard of care in respect of conduct which is unlawful. Fourth,
the plaintiff’s illegality may be a bar to his claim where its recognition would lead
to inconsistency with other principles of law. Fifth, the illegality may bear upon a
determination as to the cause of the plaintiff’s loss. Sixth, the plaintiff’s claim may
be seen as “closely connected” or “inextricably linked” with his criminal behaviour.
Seventh, the turpitude of the plaintiff’s conduct may be such as to raise a bar on him
recovering damages. And finally, the courts may embark upon a policy analysis,
balancing the policy involved in allowing the claim with that involved in denying it.
These various justifications or arguments may overlap, possibly entirely
and often to a substantial extent. We will examine them and then consider what
conclusions may be drawn.