Cross v Kirkby [2000] EWCA Civ 426 Court of Appeal

The Claimant was a hunt saboteur. He got into an altercation with the Defendant, a land owner who allowed his land to be used by the hunt. The Defendant had forcibly removed the Claimant's girlfriend from the land. The Claimant then attacked the Defendant with a baseball bat. The Defendant grabbed the bat and grappled to get it off the Claimant. In the course of doing so he struck the Claimant on the head and fractured his skull. In consequence the Claimant suffered epileptic attacks. The Claimant brought an action for damages for the injuries sustained. The Defendant raised self-defence and ex turpi causa. The trial judge rejected both defences but reduced the damages under the Law Reform (Contributory Negligence) Act 1945. The Defendant appealed.

Held:

Appeal allowed. The trial judge was wrong to reject both defences.

On the issue of ex turpi causa, Beldam LJ:

I do not believe that there is any general principle that the claimant must either plead, give evidence of or rely on his own illegality for the principle to apply. ... In my view the principle applies when the claimant's claim is so closely connected or inextricably bound up with his own criminal or illegal conduct that the court could not permit him to recover without appearing to condone that conduct.

Judge LJ:

In my judgment, where the claimant is behaving unlawfully, or criminally, on the occasion when his cause of action in tort arises, his claim is not liable to be defeated ex turpi causa unless it is also established that the facts which give rise to it are inextricably linked with his criminal conduct. I have deliberately expressed myself in language which goes well beyond questions of causation in the general sense.

Back to lecture outline on ex turpi causa in Tort Law