Was the claimant involved in an illegal activity?

The following PI & Clinical Negligence practice note provides comprehensive and up to date legal information covering:

  • Was the claimant involved in an illegal activity?
  • Requirements for bringing the defence
  • The defence can succeed where the claimant’s responsibility has been diminished but not removed
  • There is a balancing of public policy considerations
  • The defence is not confined to criminal conduct
  • The conduct should be both serious and material to the breach of duty or claim
  • The defence can apply to joint enterprise cases
  • The defence is fact sensitive
  • Parallels with the defences of contributory negligence and volenti

Was the claimant involved in an illegal activity?

If this question is answered in the affirmative, the defendant may have a complete defence to any claim brought against them. This defence is commonly known as ‘ex turpi causa non oritur actio’ which is usually shortened to ‘ex turpi causa’.

In practice, the defence is relatively unusual.

Requirements for bringing the defence

The precise ambit of the defence is uncertain. However, the following guidelines should be considered.

The defence can succeed where the claimant’s responsibility has been diminished but not removed

The cases of Clunis and Gray involved claimants who were guilty of manslaughter on the grounds of diminished responsibility. In Clunis, the Court of Appeal found that the claimant’s plea of diminished responsibility accepted that their mental responsibility was substantially impaired but did not remove liability for their criminal act and therefore they had to be taken to have known what they were doing and that it was wrong. In Gray, the House of Lords held that the claimant’s claim was barred by the defence of illegality because the damages sought resulted from the sentence imposed by the criminal court and/or the claimant’s own criminal act of manslaughter.

In Henderson, the claimant who suffered from paranoid schizophrenia or schizoaffective disorder was also convicted of manslaughter by reason of diminished responsibility but argued that the reasoning in Gray did not apply or

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