This case provides an enlightening illustration of the liability principles applicable when a driver uses their vehicle deliberately to inflict force on another person.
The facts and the parties’ cases
The incident in question occurred at around 1.45am on 15th August 201. There was an altercation between the claimant and the first defendant (an actor best known for the television series shameless) outside a McDonalds outlet in Kentish Town. The details of the altercation were hotly disputed, as were the precise mechanics of what followed.
There was, however, no dispute that the end result was the claimant being carried a distance on the first defendant’s car’s bonnet before the first defendant manoeuvred his car to throw the claimant from it and onto the pavement.
Nor was there any dispute that claimant suffered grave injuries as a result. He has been left blind in one eye. The claimant’s factual case was that:
- He had been out with his friends and family at a bowling alley. At one point he became separated from the group. To compound matters his mobile telephone had run out battery. He therefore sought to borrow a telephone from several people.
- He ultimately approached the first defendant, who was sitting in his car outside McDonalds, and asked if he could use his mobile telephone. The first defendant refused in aggressive terms. The claimant then walked away.
- After a further unsuccessful attempt to borrow a telephone elsewhere, the claimant returned and asked the first defendant again. The first defendant again refused, swearing at the claimant. The claimant responded by swearing back and slamming his hand on the car bonnet.
- The first defendant then:
- Drove forward towards the claimant,
- Drove forward again when the claimant was directly in front of him;
- Hit the claimant with the front of his car, forcing the claimant onto the bonnet; and
- Continued to drive forward while shaking the wheel to throw the claimant off the bonnet, and succeeding in throwing him violently and heavily onto the ground.
The first defendant’s factual case by contrast was that:
- He was out with his then girlfriend, Kaya Scodelario, an actor from the television series Skins. He parked outside McDonalds and waited in the car while Ms Scodelario went inside. The claimant was verbally aggressive towards Ms Scodelario, although the first defendant did not learn of this until afterwards.
- The claimant approached the first defendant in an aggressive manner. The first defendant ignored him. The claimant walked away and then abruptly turned back and walked in front of the vehicle, placing his hand down the front of his trousers as if he carrying a weapon.
- The claimant challenged the first defendant to “get out of the fucking car”. The first defendant gestured for him to move. The claimant continued to shout and punched the car bonnet.
- The first defendant reversed at which point the claimant advanced and again punched the bonnet. The defendant edged forward without making contact with the claimant.
- The claimant then leant forward and climbed onto the bonnet and began punching the windscreen while holding onto the lip of the bonnet. He was screaming abuse and pulling at the windscreen wiper.
- The first defendant then drove forwards in first gear and turned the wheel slightly from side to side causing the claimant to slide off.
- Throughout this time the claimant had continued a frenzied assault which caused the first defendant to fear for his life. He continued to punch the windscreen as if trying to get at the first defendant.
- The first defendant did not want to stop at the scene as he feared the claimant would attack him again. He therefore fled the scene, albeit doing a u-turn briefly to pass by again.
The first defendant’s car was not insured, thus the involvement of the second defendant. The second defendant’s defence on liability was identical to that of the first defendant.
The claimant’s legal case was simply that the first defendant’s use of his car so, to inflict physical force, constituted an unlawful battery in the form of a trespass. Specifically:
- The initial act of driving forward forcing the claimant onto the car bonnet constituted a trespass; and
- Further and in any event, irrespective of how the claimant came to be on the bonnet, the first defendant’s admitted and admittedly intentional act of manoeuvring his care so as to dislodge the claimant constituted a distinct trespass.
The defendant pleaded numerous lines of defence in response
- They denied that there were any battery as there had been no hostile intent;
- They contended that the first defendant had acted reasonably in self-defence;
- They contended that by his own actions the claimant had voluntarily accepted the risk of injury so as to engage the defence of volenti non fit injuria (volenti);
- They contended that the claimant’s immoral and/or unlawful conduct precluded his recovering damages under the principle of ex turpi causa non oritur action (ex turpi); and
- They pleaded contributory negligence.
Liability was tried as a preliminary issue before Edis J on 17-19 February 2015.
The Judge was critical of the evidence of both the protagonists, but much more so of that of the first defendant. He did not accept either party’s account in full, but his key findings were much closer to the claimant’s case than the defendant’s.
In summary he found that:
- The incident proper started with an outburst of anger directed by the claimant towards the first defendant. The claimant was committing the criminal offences of being drunk and disorderly in a public place and criminal damage to the car. He was also committing an offence under the Public Order Act, but probably not one as serious as affray. He was thus behaving in such a way that the first defendant might reasonably have believed that he posed a threat of some physical harm to him, at least if he got out of his car.
- However, the first defendant had deliberately overstated the effect on him of the claimant’s behaviour and tried to hide the truth of his own response to it.
- The precursor to this altercation was the claimant’s intimidating conduct towards Ms Scodelario, which the first defendant had observed. The first defendant reacted aggressively to the claimant’s aggressive and confrontational behaviour directed first at Ms Scoldelario and then at him.
- What followed was a loutish shouting match in a public street between two young men who were behaving badly. They were probably jointly involved in an offence under the Public Order Act or at least a breach of the peace.
- The claimant then struck and damaged the first defendant’s expensive new car. This was a criminal offence of criminal damage. This caused the first defendant to drive forward deliberately towards the claimant who went forward on to the bonnet because otherwise he would have been struck and injured by the car, which was being used as a weapon.
- The first defendant then reversed quickly to try to throw the claimant off, before rapidly changing direction and moving forwards at considerable speed steering sharply, still trying to throw him from the car.
- At no time during this was the claimant attacking the car or doing anything other than trying to hold on to the moving car to avoid injury.
- It must have been obvious to the first defendant that when swerving to eject the claimant the car was travelling so fast that serious injury to him was likely when he fell.
This was a use of force which was primarily motivated by anger and a desire to come off best in the altercation. The allegation that the claimant presented as if carrying a weapon was a later invention.
- Another later invention was the first defendant’s stated belief that he feared for his life. When one man is driving a car and the other is being carried on the bonnet, both may be at some risk, but only one of them is in grave and immediate danger of being killed (if no weapons are involved, as was the case here, and as was apparent to the first defendant). It is not the driver.
The Judge dealt with this shortly. The claimant did not consent to being driven at in such a way as to cause him to be on the bonnet and, once on the bonnet, did not consent to being thrown off it at speed. Consent was not a defence to this type of battery, as opposed to breach of duty. The way in which a claimant’s conduct might find legal expression was in the defences of self-defence and ex turpi, rather than in a legal fiction which finds consent where there was none.
The elements of the tort of battery are clearly made out. There was an intention forcefully to interfere with the claimant’s person. There was no need for any greater level of hostility. Ad per Wilson v Pringle (1987) per Croom-Johnson LJ at para 249:
It is the act and not the injury which must be intentional. An intention to injure is not essential to an action for trespass to the person.
The first defendant was not so paralysed by fear that he had no control over himself or his car. He performed the manoeuvre he did deliberately. The plea that his actions were self-defence was also inconsistent with the contention that they were not deliberate.
This failed on the facts.
The first defendant’s actions were not motivated by a fear of attack. They were not motivated by a fear of the attack. They were not defensive at all. That first defendant was not in any physical danger, sitting in a fast car and involved in an altercation with an unarmed pedestrian.
Even if the first defendant had been acting in fear of attack, for essentially the same reasons, it would not have been a reasonable held belief, nor would his reaction have been reasonable and proportionate.
Even if the initial manoeuvres could have been so described, the final one of driving forward at speed and shaking the wheel was not. Even allowing, as per R v Keane (2010), for the benefit of hindsight and the agony of the moment, this potentially lethal force was disproportionate to the threat the claimant objectively posed.
The claimant acted towards Ms Scodelario and the first defendant in a way which was threatening and intimidating. However, this had to be considered against the first defendant’s reaction.
- The claimant was guilty the kind of relatively minor criminality which is not uncommon late at night in cities. It was deplorable and alarming, and could sometimes escalate into more serious violence.
It was not to be condoned, but nevertheless was a fact of life which many people unfortunately had to deal with from time to time. A person who so behaved in this way might, if there are relevant previous convictions, expect a short custodial sentence.
- The first defendant by contrast was guilty (positively proved to the civil standard) of serious criminal offences. Even with no previous convictions, this would attract a substantial prison sentence.
In Vellino v Chief Constable of the Greater Manchester Police (2001), the claimant had been negligently allowed to escape from police custody by jumping out of a high window in the presence of the officers who had arrested him. His claim failed on the basis of ex turpi. Sir Murray Stuart-Smith at para 70 lay down the following principles:
(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 the public policy; it is not for the benefit of the defendant. Since if the principle applies, the cause of the 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.
Also relevant was Gray v Thames Trains Limited (2009). Lord Hoffmann therein identified the principle which applicable to cases such as this. He called it the “wider principle” to distinguish it from a narrower rule which prevents recovery of damages for losses sustained as a result of a penalty inflicted by a Court for criminal offending. He characterised it thus:
51… It differs from the narrower version in at least two respects: first, it cannot, as it seems to me, be justified on the grounds of inconsistency in the same way as the narrower rule. Instead, the wider rule has to be justified on the ground that it is offensive to public notions of the fair distribution of resources that a claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct. Secondly, the wider rule may raise problems of causation which cannot arise in connection with the narrower rule. The sentence of the court is plainly a consequence of the criminality for which the claimant was responsible. But other forms of damage may give rise to questions about whether they can properly be said to have been caused by his criminal conduct…….
54. This distinction, between causing something and merely providing the occasion for someone else to cause something, is one with which we are very familiar in the law of torts. It is the same principle by which the law normally holds that even though damage would not have occurred but for a tortious act, the defendant is not liable if the immediate cause was the deliberate act of another individual. Examples of cases falling on one side of the line or the other are given in the judgment of Judge LJ in Cross v Kirkby (2000) CA Transcript No 321. It was Judge LJ, at para 103, who formulated the test of “inextricably linked” which was afterwards adopted by Sir Murray Stuart-Smith in Vellino v Chief Constable of the Greater Manchester Police (2002) 1 WLR 218. Other expressions which he approved, at paras 100 and 104, were “an integral part or a necessarily direct consequence” of the unlawful act (Rougier J: see Revill v Newbery (1996) QB 567, 571) and “arises directly ex turpi causa: Bingham LJ in Saunders v Edwards (1987) 1WLR 1116, 1134. It might be better to avoid metaphors like “inextricably linked” or “integral part” and to treat the question as simply one of causation./ Can one say that, although the damage would not have happened but for the tortious conduct of the defendant, it was caused by the criminal act of the claimant? (Vellino v Chief Constable of the Greater Manchester Police (2002) 1 WLR 218). Or is the position that although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant? (Revill v Newbery (1996) QB 567).
The Judge observed at para 47:
This builds on the decisions cited in approaching the application of the public policy defence as a matter of causation. For the purposes of this rule, the test is not the “but for” test, but a search for the real operative cause of the injuries sustained. Was it the crime of the claimant or was it something else? Lord Hoffmann did not need to address the issue in this case which is: Where the crime of the claimant has provoked, and thereby in one sense caused, a criminal response as a result of which he sustains injury, what test is to be applied?
Some assistance was to be found in the cases where the claimant and the defendant were partners-in-crime in pursuit of a criminal joint enterprise. In Joyce v O’Brien (2013) the claimant was injured by the defendant’s negligent driving when both were fleeing with stolen goods. The claim was dismissed on the basis of ex turpi causa. Elias LJ reasoned as follows:
28 In my judgment, in the application of the causation principle developed in Gray v Thames Trains Ltd (2009) AC 1339, the courts should recognise the wider public policy considerations which have led them to deny liability in joint enterprise cases. This is compatible with the Lord Hoffmann’s approach. The earlier authorities provide valuable assistance in answering the question when the claimant’s injury will be treated as having been caused by this own conduct notwithstanding that the immediate cause was the act of a partner in crime. They reflect what seems to me to be the underlying policy even if the rationale for denying liability must now be cast in terms of causation rather than duty. In my view the injury will be caused by, rather than occasioned by, the criminal activity of the claimant where the joint criminal illegality affects the standard of care which the claimant is reasonably entitled to expect from his partner in crime. This is consistent with the result in Ashton v Turner (1981) QB 157 and Pitts v Hunt (1991) 1 QB 24, but it focuses on causation rather than duty.
29 I would formulate the principle as follows: where the character of the joint criminal enterprise is such that it is foreseeable that a party or parties may be subject to unusual or increased risks of harm as a consequence of the activities of the parties in pursuance of their criminal objectives, and the risk materialises, the injury can properly be said to be caused by the criminal act of the claimant even if it results from the negligent or intentional act of another party to the illegal enterprise. I do not suggest that this necessarily exhausts situations where the ex turpi principle applies in joint enterprise cases, but I would expect it to cater for the overwhelming majority of cases. With that principle in mind, I now turn to the facts.
While recognising that there might be some parallels between this case and criminal joint enterprises proper, the judge at para 51 rejected the defendants’ arguments that this case fell within rationale of Joyce:
I have held for the purposes of self-defence that the response of the first defendant was not reasonable or proportionate as a response to what the claimant did wrong. It was different in kind from what might have been foreseen by the claimant when he acted as he did. In murder cases the law of joint enterprise, sometimes called parasitic accessory liability, holds all participants guilty of a murder committed in a way which they foresaw might happen, but not if the killer uses a weapon of some fundamental different kind from that which was the subject of the joint enterprise: see R v Powell & English (1999) 1 AC 1. Therefore, the criminal law exonerates an accessory of liability where the crime was not foreseeably part of the joint enterprise. Where a person responds to provocation in a way which far exceeds what is reasonable and is a serious crime for that reason, does public policy operate to absolve him from liability for what he has done? It appears to me that any rule of law which operates to excuse serious and unlawful violence to any extent is not one which is obviously justified by public policy.
The Judge went on to hold at para 53 that, while proportionality between the conduct of the claimant and defendant would not normally be relevant (Vellino, supra; Beaumont & O’Neill v Ferrer (2014) the court here would not:
53… avoid examining what the claimant did wrong, and what it caused the defendant to do in response. It is necessary to do this in order to decide whether, for the purposes of the causation rule applicable to this public policy defence, the one caused the other. The cases about “proportionality” being irrelevant are not cases which concern two people using unlawful force against each other, but about persons injured in the course of committing crime by the negligence of others.
54. In this case, the Law allowed the first defendant a wide margin of latitude in using force to defend himself against unlawful violence. Where his conduct was so far beyond what is acceptable as a response to what the claimant did to him that this defence fails, it would require a very clear justification to dismiss the claim against him on other grounds. It is instructive to ask whether a police officer who dealt with the claimant in the way that Mr. Tittensor did should have a complete defence to the claim for damages. The scope of a general principle which denied claims where the injuries were caused by the criminal and violent conduct of the defendant would require careful consideration to avoid it becoming a contributor to anarchy.
55. The proper approach to causation is in essence to determine whether the injuries were caused by the criminal conduct of the claimant himself, or that of a partner in crime acting within the foreseeable scope of the joint enterprise. He is to be taken to have caused the consequences of his own acts, or those of accomplices who are doing things which he has agreed should be done. In joint crimes of violence where the two parties are by agreement fighting each other unlawfully, the foreseeable consequences of that activity cannot found a claim. A claimant cannot recover for injuries caused by the lawful conduct of others responding to him with violence or using reasonable force to arrest him: they have a defence of self-defence. He cannot recover either for the consequences which are foreseeable in the course of the kind of unlawful confrontation which he has agreed to take part in. That is the public policy defence. However, I hold that where he sustains injuries not in that way, but because a third party voluntarily commits a different kind of serious crime against him, his conduct does not in law cause that injury for the purpose of the particular rule of causation applicable to this defence. If Mr. Tittensor had pulled out a knife and stabbed Mr. Flint for damaging his car, this would, for the purposes of this causation rule, break the chain of causation between the damage to the car and the injuries to Mr. Flint. Using the car as I have found he did is comparable, for causation purposes, to the use of a knife. To hold otherwise would be go to behind another important principle of the law which is that those who commit crime are responsible for their own actions. The conduct of others may mitigate the penalty which flows from that responsibility but does not diminish the responsibility itself.
The plea of ex turpi thus failed.
This is not available to a claim in trespass; Co-operative Group (CWS) Ltd v Pritchard (2011). By the end of the trial the defendants had conceded this.
There was judgment for the claimant for damages to be assessed.
There are various points to note.
The treatment of ex turpi is instructive, and benefits from Edis J’s extensive experience in both criminal and personal injury law.
The quest for a unifying theory or bright line test for this doctrine remains elusive. The cases where it will apply to defeat the claim are more easily identified in the flesh than described in the abstract.
It might be argued that the judge’s application of a criterion of proportionality as between the parties’ conduct is difficult to reconcile with authority. However:
- It is well established that a threshold proportionality test is always applicable to this defence, albeit normally without reference to the defendant’s conduct. Not every minor misdemeanour bars a remedy; the claimant’s conduct must be of sufficient gravity to engage the doctrine (Vellino supra at para 70(3).
- The distinction between the application ex turpi as a defence to negligence or other such breach of duty and as a defence to trespass to the person seems sound. There are important conceptual and practical differences between inadvertently and deliberately inflicted injury.
- In the event, proportionality is certainly crucial as regards the causation element of the defence. The more disproportionate the force used in response the more difficult it will be to say that the claimant’s conduct (as opposed to the defendant’s disproportionate response) remain the real operative cause of the ensuing injuries.
The upshot is that, while theoretically a plea of ex turpi (or event violenti) could succeed where a plea of self-defence has failed, in practical terms such cases are likely to be exceptional. A finding that the force used was disproportionate so as to preclude self-defence is simultaneously likely to mean that there is no entry point for ex turpi, or at best only a very narrow one.
Looking at the issue more broadly, the truism that each case turns on its own facts is likely to be highly resonant in cases of this nature. Given the judge’s factual findings here the first defendant was going to be held liable irrespective of the niceties of the legal analysis.
The further practical point to note that it is that, when properly available, battery is an inherently superior cause of action for a claimant than negligence for two reasons.
Firstly, the burden of proof. Once an intentional action which interferes with the claimant’s person has been established (which generally will not be difficult), the burden of proof lies on the defendant to prove that the trespass was lawful; Ashley c Chief Constable of Sussex (2008). Specifically in relation to in self-defence, the defendant must prove:
- that they acted of a genuine belief of actual or imminent attack;
- that this belief was reasonable held; and
- that only reasonable force was used in response.
Given the level of force inherent in the use of a car, the last of these will generally be very difficult to satisfy. See in the context of negligence Lunt c Khelifa (2002) at para 20 per Brook LJ:
…….this court (the Court of Appeal) has consistently imposed on the drivers of cars a high burden to reflect the fact that a car is potentially a dangerous weapon.
Conversely, the burden to prove negligence rests throughout upon the claimant. Moreover, any case in negligence will for all practical purpose be co-extensive with trespass. The criterion in respect of both is reasonableness. If the defendant’s actions are negligent, they cannot simultaneously be reasonable for the purposes of establishing self-defence; Ashley at para 93-94. Equally, if defendant’s actions were not reasonable for the purpose of self-defence, by definition they were negligent; Revill (the converse of Flint in that this was a case brought in negligence that could have been brought in trespass). The reasoning in North v TNT Express (UK) Ltd (2001), is to similar effect.
It follows that there is likely to be no scope for a claimant to succeed in negligence but fail in trespass, whereas there would be scope for a claimant to fail to prove negligence in circumstances where the defendant might equally failed to prove self-defence with the result that the claimant would succeed in trespass.
Secondly, contributory negligence is not available in respect of trespass to the person; Pritchard, supra. There is no doubt that if this claim had been brought in negligence the claimant’s damages would have substantially reduced on account of his own conduct. See for example to 20% reduction in Ayres v Odedra (2013), the 30% reduction in Parmar v Big Security Co Ltd (2008) and the 40% reduction Groves v Studley (2014).
It was for these reasons (in addition to the fact that trespass was the more accurate characterisation) that the claim was brought solely in trespass with no alternative pleading in negligence.
Notably, this notwithstanding, the first defendant sought to argue that the claim should be treated as a claim in negligence and any damages reduced for contributory negligence accordingly. As it was, of course, the claimant succeeded in full.
Article by Andrew Roy – Barrister at Bench Walk
From Personal Injury Law Journal April 2015 – Number 134