McCracken v Smith & Ors

McCracken v Smith & Ors

The ex turpi causa defence does not bar Daniel’s claim against Mr Bell, a negligent third party, even though Daniel was a joint participant in a criminal enterprise (dangerous driving) with Damian. The causal contribution of Daniel’s criminal conduct is to be reflected in the assessment of contributory negligence, not as a complete bar. The deduction for contributory negligence is increased to 65% (including 15% for failure to wear a helmet). The costs order requiring Mr Bell to pay 90% of the MIB’s costs is upheld as within the judge’s discretion.

Parties
Claimant/1st Respondent: Daniel McCracken (a protected party suing by his mother and litigation friend Deborah Norris); 1st Defendant/2nd Respondent: Damian Smith; 2nd Defendant/3rd Respondent: The Motor Insurers’ Bureau; 3rd Defendant/appellant: Darren Michael Bell
Jurisdiction
England and Wales
Judgment Date
22 April 2015
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeal From High Court
Outcome
Appeal allowed in part (increase in contributory negligence deduction); otherwise dismissed. Costs appeal dismissed.
Legal Topics
Ex Turpi Causa (illegality Defence), Contributory Negligence, Joint Enterprise, Negligence, Costs Orders
Tort Law Insurance Law Civil Procedure Ex Turpi Causa (illegality Defence) Contributory Negligence Joint Enterprise Negligence Costs Orders

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Parties

Daniel McCracken (a protected party suing by his mother and litigation friend Deborah Norris)

Claimant/1st Respondent

Damian Smith

1st Defendant/2nd Respondent

The Motor Insurers’ Bureau

2nd Defendant/3rd Respondent

Darren Michael Bell

3rd Defendant/appellant

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeal From High Court

Legal Issues

  1. 1 Whether the ex turpi causa defence bars the claimant’s recovery against a negligent third party (Mr Bell) when the claimant was a joint participant in a criminal joint enterprise (dangerous driving) with the uninsured rider (Damian)
  2. 2 Proper apportionment of contributory negligence in the context of joint criminal enterprise and negligent third party
  3. 3 Appropriate costs order regarding the Motor Insurers’ Bureau

Ratio Decidendi

The ex turpi causa defence does not bar Daniel’s claim against Mr Bell, a negligent third party, even though Daniel was a joint participant in a criminal enterprise (dangerous driving) with Damian. The causal contribution of Daniel’s criminal conduct is to be reflected in the assessment of contributory negligence, not as a complete bar. The deduction for contributory negligence is increased to 65% (including 15% for failure to wear a helmet). The costs order requiring Mr Bell to pay 90% of the MIB’s costs is upheld as within the judge’s discretion.

Court Disposition

Appeal allowed in part (increase in contributory negligence deduction); otherwise dismissed. Costs appeal dismissed.

Orders

  • Total deduction for contributory negligence increased from 45% to 65% (including 15% for failure to wear a helmet).
  • Mr Bell to pay 90% of the MIB’s recoverable costs.