The judgement by the Court of Appeal in the case of Joyce v O’Brien & Tradex Insurance Company Ltd was handed down on 17 May 2013.
The decision by Lord Justice Elias, Lady Justice Rafferty and Mr Justice Ryder on this case was to uphold the first ruling: a claimant cannot bring about a case for damages for injuries caused by another when both were part of a joint criminal enterprise.
First, let’s look at the facts of the case. The claimant (nephew) and the defendant (uncle) stole a set of ladders. The length of the ladders meant that they were unable to completely fit in the back of the getaway vehicle, a van in this case and subsequently, the doors were unable to close. The nephew therefore, stood on the back of the van with one door open supporting the ladders while the uncle drove recklessly to escape the scene. The uncle was being followed and a witness explained that coupled with dangerous driving and sharp corners, the nephew lost balance, fell from the van and suffered serious head injuries. The uncle continued driving the van, unloaded the ladders in a side street and returned to help his nephew. It was held that this last action confirmed that both men were part of a joint criminal enterprise and the claim for negligence was unsuccessful due to the ex turpi causa doctrine.
The issues raised in this case are whether ex turpi applies? Was the defendant negligent? Is it moral for a claimant to pursue damages for injuries sustained during a joint criminal enterprise?
To understand that the decision was correct, I must first explain the law of negligence and ex turpi causa.
Negligence
To bring a successful claim for negligence, four elements have to be satified: duty of care (DoC), breach of duty (BoC), causation and ha...
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...from their crime, shown in Murphy v Culhane4. This principle is less significant in tort law as generally, tort law is concerned with compensating loss rather than the claimant making gains. However, in claim for indemnity, it can be applied to prevent claimant being relieved of the consequences of their crime.
The proportionality test looks to see if the decision being made is proportionate to the damages caused. This is shown in Lane v Holloway5
The public conscience test looks to see if it would offend the public is the courts allowed the claim to succeed. Shown in Thackwell v Barclays Bank Plc6. This was later rejected in favour of the reliance test shown in Tinsley v Milligan7.
The statutory influence test looks at whether other other areas of law that may conflict with ex turpi causa as shown in Revill v Newbery8.
These tests show that ex turpi causa do not a
Lord Wilberforce, the judges who presided over the Anns v. Merton case used a two-step test in determining the scope of proximity between the homeowner and the municipality. The first part of the test determined whether the relationship between the two parties was sufficient enough so that failure to exercise a duty of care by one of the parties would result in damages sustained by the other. The second step, pursuant upon the first step looks at any aspects that would limit the obligations placed on the party to exercise a duty of care. This test and the Anns v. Merton case set a strong precedent that was used in the Kamloops v. Nielson case, the first of its kind in Canada.
“In tort law, the doctrine which holds a defendant guilty of negligence without an actual showing that he or she was negligent. Its use is limited in theory to cases in which the cause of the plaintiff's injury was entirely under the control of the defendant, and the injury presumably could have been caused only by negligence”(Burt, M.A., & Skarin, G.D. (2011). In consideration of this, the defendant argues that the second foundation of this principle should be solely based on common knowledge of the situation. Although, there is a experts testimony tartar is no basis in this case , in the experts testimony or anything else, for indicating that the plaintiffs injury resulted from the negligence of the defendant. The court correctly found the defendant not liable under the Res ipsa
The appeal was heard in The NSW Supreme Court, Court of Appeal. The appellant appealed the issue of “blameless accidents” therefore providing new evidence, with the view that the preceding judge made an error recognising the content and scope of duty of care. He also noted the breach of duty of care and causation .
On the evening of Ms. Heggar¡¦s death she was alone in her house. Eddie Ray Branch, her grandson, testified that he visited his grandmother on the day that she was killed. He was there till at least 6:30 p.m. Lester Busby, her grandnephew, and David Hicks arrived while her grandson was still there and they saw him leave. They then went in to visit with Ms. Heggar. While they were there, Lester repaid Ms. Heggar 80 dollars, which he owed her. They left around 7:15 p.m. and went next door to a neighboring friend¡¦s house. David Hick¡¦s went home alone from there to get something but returned within ten minutes of leaving. Because he was only gone for 5-10 minutes, prosecution theorized TWO attacks on Ms. Heggar because he could not have killed his grandmother during this 5-10 minute period alone. At 7:30 p.m., 15 minutes after the two had left, an insurance salesman called to see Ms. Heggar. He knocked for about 2 or 3 minutes and got no reply. Her door was open but the screen door was closed. Her TV was on. He claimed to have left after about 5 minutes and then he returned the next morning. The circumstances were exactly the same. With concern, he went to the neighbor¡¦s house and called the police. His reasoning for being there was because the grandmother¡¦s family had taken out burial insurance three days before she had died.
A series of events unfolded when George, running late for class, parked his car on a steep section on Arbutus drive and failed to remember to set the parking brake. The outcome of not remembering to set the parking brake caused many issues resulting in scrapping a Prius, breaking through fencing, people on the train sustaining injuries, and finally a truck that jack-knifed and caused a 42-car pileup. Could the parties that were injured, from George’s actions, be recovered from under the negligence theory? To understand if George is negligent, it is best to look at the legal issue, the required elements of negligence, the definition and explanation of each element of the case, and finally to draw a conclusion to determine if George is negligent.
The second issue is whether or not the defendant has an obligation to reimburse for an injury. The outcome of this second issue depends whether or not it is rational for the defendant to have to pa...
The tort of negligence is the failure to exercise the standard of care that a reasonable person would exercise in a similar circumstance. Negligent conduct may consist of either an act, or an omission to act when there is a duty to do so. Four elements are required to establish a prima facie case of negligence. The existence of a legal duty to exercise reasonable care, a failure to exercise reasonable care. Cause in fact of physical harm by the negligent conduct; physical harm in the form of actual damages and proximate cause. Which is showing that the harm is within the scope of liability.
Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112 House of Lords
According to the facts in this case, Walkovszky was hit by a cab four years ago in New York and the cab was negligently operated by defendant Marches. The defendant Carlton, who is being sued, owned and ran the cab company in which he set up ten corporations, including Seon. Each of the corporations had two cabs registered in its name. The minimum automobile liability insurance required by the law was $10,000. According to the opinion of the court the plaintiff asserted that he is also ?entitled to hold their stock holder personally liable for damages, because multiple corporate structures constitutes an unlawful attempt to defraud the general member of the public.?
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