Vellino v Chief Constable of Greater Manchester [2002] 1 WLR 218 Court of Appeal

The Claimant was a known offender and had a string of convictions. He was seriously injured when he jumped out of a second floor window having just been arrested. The police were aware that he was likely to escape and had done so on several previous occasions. They were also aware that such activity was dangerous but did nothing to prevent him from jumping. The Claimant suffered a fractured skull, brain damage and tetraplegia which rendered him totally dependent on others for support. He brought an action against the police arguing that having arrested him, they owed him a duty of care to prevent him injuring himself. The Defendant denied owing a duty of care and also raised the defence of ex turpi causa in that it was a criminal offence for an arrested person to abscond. The trial judge held that ex turpi causa excluded the imposition of a duty of care. The Claimant appealed.

Held:

2:1 The appeal was dismissed.

Sir Murray Stuart-Smith identified four principles relating to the maxim ex turpi causa:

1. The operation of the principle arises where the claimant's claim is founded upon his own criminal or immoral act. The facts which give rise to the claim must be inextricably linked with the criminal activity. It is not sufficient if the criminal activity merely gives occasion for tortious conduct of the Defendant.

2. The principle is one of public policy; it is not for the benefit of the Defendant. Since if the principle applies, the cause of action does not arise, the Defendant's conduct is irrelevant. There is no question of proportionality between the conduct of the Claimant and Defendant.

3. In the case of criminal conduct this has to be sufficiently serious to merit the application of the principle. Generally speaking a crime punishable with imprisonment could be expected to qualify. If the offence is criminal, but relatively trivial, it is in any event difficult to see how it could be integral to the claim.

4. The Law Reform (Contributory Negligence) Act 1945 is not applicable where the Claimant's action amounts to a common law crime which does not give rise to liability in tort.

Applying these principles it is common ground that the Claimant has to rely on his criminal conduct in escaping lawful custody to found his claim. It is integral to the claim. The crime of escape is a serious one; it is a common law offence for which the penalty is at large. It is almost invariably punished by a sentence of imprisonment, although the length of the sentence is usually measured in months rather than years. In my judgment it is plainly a sufficiently serious offence for the purpose of the application of the maxim.

Sedley LJ Dissenting:

"I see little substantial justice in such circumstances in sacrificing a judicial apportionment of responsibility on the altar of a doctrinaire refusal to adjudicate....In the field of what one can call ordinary personal injury litigation the turpitude doctrine has been consciously eliminated by the courts on policy grounds. In road accident cases, for example, it is common enough to find that the injured claimant has contributed to the accident by speeding or driving with faulty brakes; but I know of no decision that such a claimant cannot sue another driver who has negligently caused his injuries. Nor can I see any justice in so deciding when the criminal law is there to deal with his criminality and the power to apportion damages will deal with his own contribution to his injuries."

Back to lecture outline on ex turpi causa

Back to lecture outline on contributory negligence

Back to lecture outline on policy factors