Ex turpi causa non oritur actio.

Ex turpi causa non oritur actio

 

Introduction: This paper deals with the maxim ‘Ex
turpi causa non oritur actio’ which is a defence under the Tort law. The maxim
stands Latin for ‘no action will be heard which arises out of a disgraceful
situation’[1].
It means that no court will lend its ear to a person who found his action on an
illegal act. This nowhere implies that a plaintiff is disabled from recovering
by being a wrongdoer; unless there is any unlawful act or conduct on his part
which has a nexus with the injury suffered by him. In short; it is claimant’s
own wrongful conduct that debars him from entitlement to a remedy.[2]

Origin: The maxim came from ‘The law of Contracts’
and not from ‘Torts’. It says that no court can enforce a contract which arises
from an illegal transaction. The same logic applies to Torts as well.

Scope and Applicability: Focusing on the scope and applicability
of the maxim; illegality as a defence can be used when:

(a.)  It becomes
impossible for the court to ascertain the standard of care in a situation due
to the nature of joint illegal activity entered into by both the plaintiff and
the defendant.

 

(b.) The claimant’s cause
of action comes from ex turpi causa.[3]

 

(c.)  Compensating the
claimant is likely to affront the public conscience and goes against public
policy.

 

At the same time; the defence is not a tool for the defendant to sling mud at the plaintiff.  Instead he has to prove that the claimant’s acts are rooted with grave illegalities which couldn’t be well separated as not every wrongful conduct on the plaintiff’s part takes away his entitlement to a
remedy. The fact remains that the claimant engages in reprehensible or criminal
conduct does not necessarily dismisses his claim. The law commission[4]
proposes to restate the law as a structured discretion thereby empowering the
courts to act as the public interest. This appears reasonable but however this
would not put a full stop to the controversies regarding the applicability of
this defence. The commission to maintain the internal capacity, consistency of
law and to promote the integrity of justice lists certain factors while talking
about the scope of this defence. They are:-

(a.)  ‘The seriousness of
the illegality.

 

(b.) The intention and
knowledge of the claimant.

 

(c.)  Whether denying relief
would act as a deterrent.

 

(d.) Whether denying
relief would be proportionate to the illegality involved.

 

(e.)  The degree of
connection between the illegal act and the facts giving rise to the claim.’[5]

However, no final conclusion has been
made in this pretext and the maxim’s scope is still unclear and unpredictable.
The issue now is: how to decide whether the maxim applies to a certain case or
not?

 

Tests:     

In order to solve the above problem; the
courts resorted to certain tests that help ascertain the applicability of the
maxim.

(1.) Public
conscience:
It says that the defence should apply if the grant of relief to the claimant
affronts the public conscience. It is based on the principle of public policy
which says that the ones engaged in criminal activity must not be allowed to
use the legal process for recovering damages for losses incurred while acting
beyond the purview of law. In the well known case of Pitts V. Hunt[6]  where two boys; plaintiff 18 yrs. and
defendant 16 yrs.; both in heavily drunken state were riding a motorbike at a
very high speed met with an accident resulting in defendant’s death and serious
injuries to the plaintiff. Therefore; drawing the scale of illegality; judges
held that the plaintiff was encouraging the young rider knowing him to be
unlicensed and vehicle uninsured and held it to be moral turpitude and stated it
to be against public conscience to let plaintiff recover damages.

 

(2.) Determining
the standard of care: Here; it is ‘impossible’ for the court to mark the suitable
standard of care. “It is suggested that it is nonsense to specify a
‘reasonable’ standard appropriate to determine the duty owned by one speeding
joy-rider to another.”[7]
“It isn’t that a court is unable to set a standard of care but that it won’t as
the standard of care owned by a road user is a set at the act of the reasonable
driver; irrespective of the individual idiosyncrasies of the driver.”[8]

(3.) Reliance
on the illegality: This approach was taken up by The House of Lords in Tinsley v. Milligan[9]
where the property in question was vested in the sole of plaintiff with the
motive of defrauding the Department of Social Security. Now; the defendant
claimed an equitable interest in property purchased saying that it was bought
with funds from both of them. It was held that the defendant wass entitled to
recover the interest as she wasn’t forced to plead under illegality; even after
knowing that title that she relied on was obtained through an illegal
transaction. Thus; the gist here is that “defence doesn’t depend upon the
assessment of the extent to which allowing the claimant to recover would
constitute an ‘affront to the public conscience’ because this allowed too much
discretion, but would apply where the claimant had to RELY on the illegality in
order to assert his claim.”[10] 

 

(4.) Immoral
conduct:
In Kirkham v. Chief Constable of Greater
Manchester Police[11];
it was considered by Court of Appeal that apart from criminal conduct even
other conduct could give rise to the defence of ex turpi. Here; a prisoner
committed suicide in the prison. It was found that the police had knowledge
about his previous attempt to suicide but failed to convey the same to the
authorities. When prisoner’s widow succeeded in her claim for damages as it was
stated that ‘suicide was not an affront to the public conscience’ and ‘not in
full possession of the mind.’ While in Hegarty
v. Shine[12];
the plaintiff contracted a veneral disease from her lover. Here; her action in
assault was rejected partly stating that no cause of action should be founded
on flagrant sexual intercourse.

 

Thus; the applicability varies from
circumstances to circumstances.

 

(5.) Connection
with the claimant’s injury: For the plea of ‘ex turpi’ to work; the
claimant’s conduct should have sufficient nexus with the injury he has
suffered. In Ashton v. Turner[13];
the plaintiff and the defendant were drunken burglars who were trying to get
away in the defendant’s car after burglary ended up injuring the plaintiff
because of defendant’s reckless driving. The claim here was dismissed as
contrary to public policy. While in Saunders
v. Edward[14];
the defendant sold the lease of a flat for £ 45000 to the plaintiff
fraudulently representing that the flat has a roof terrace. With the motive of
reducing the stamp duty; the purchase price was apportioned on the basis of £
40000 for flat and £ 5000 for the chattels; both parties being aware of
chattels being of lower price. Later; when discovered by the plaintiff that
flat doesn’t have a roof terrace; he sued and his action was allowed to proceed
as ‘the illegal apportionment in contract was wholly unconnected with the
plaintiff’s cause of action in tort.’[15]

(6.) Moral
Culpability: The degree as well as the culpability of the claimant’s
criminality has been compared against the defendant’s conduct in many cases. In
cases where the defendant’s conduct is by far more culpable, remedy is not
denied because of evidences of participation in crime. Also in Saunders v. Edwards[16];
the plaintiff won as the defendant’s moral culpability operately outweigh that
of the plaintiff’s. In the case of Revill
v. Newberry[17];
the 76 year old defendant who was sleeping in a shed on his allotment to
protect his property from burglary; heard the plaintiff trying to break in. He
then fired a shotgun through a small hole in the door and injured the
plaintiff. The court held the defendant has applied extra force and fixed at
the body level rather than a warning shot and didn’t rely on ‘ex turpi’

 

Overlapping of ex turpi; volenti non fit injuria and contributory negligence: There are many cases where a plea of ex
turpi ends up overlapping the defence of volenti and/or contributory
negligence. Talking about Murphy v. Culhane[18]
; where the claimant’s husband voluntarily became a part of the violent affray;
the court of appeal ruled that the facts raised issues of ex turpi, volenti non
fit injuria and contributory negligence as it can be argued that his own
criminal act should debar him from a remedy; he assumed the risk of injury and
his own fault contributed to his injury.[19]
Thus; in one case; all three can go hand in hand as each has its own effect,
result and releva

Conclusion:

Therefore to summarize the scope and applicability of the maxim; it can be

concluded that it solely depends upon the facts of the case and the tests

applied in order to determine its applicability.
Bibliography:

 

1.      The law of torts;
Ratanlal and Dhirajlal (23^rd ed.)

2.      Tort law;
directions; Vera Bermingham; Carol Brennan

3.      Tort law; Text,
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4.      Tort; C.D. Baker

5.      Casebook on Torts; Richard
Kidner (9^th ed.)

6.      Tort; Steve Hedley
(5^th ed.)

7.      On the Law of Torts;
Salmond and Heuston (20^th ed.)

8.      Tort; Paula Giliker
and Lilas Beckwith (3^rd ed.)

9.      Tort law; Nicholas
J. McBride and Roderick Bagshaw.

10.  Tort Law; M Lunney
and K. Oliphant.

11.  Tort Law; Markesinis
and Deakin’s (6^th ed.)

12.  The law of Torts;
Ramaswamy Iyer (10^th ed.)

13.  Tort Law; Dias and
Markesinis (2^nd ed.)

14.  Clerk and Lindsell
on Torts; Clerk and Lindsell (18^th ed.)

15.  Winfield (17^th
ed.

16.  Street on Torts;
Brazier and Murphy (11^th ed.)

17.  Nujs study module.