References: [1993] 2 SCR 159, (1993) 101 DLR (4th) 129, 1993 CanLII 141
Links: Canlii
Coram: McLachlin J
Ratio:(Canadian Supreme Court) After they had been drinking heavily together, Mr Hebert, who owned a car, allowed Mr Hall to drive it, including initially to give it a rolling start down a road on one side of which there was a steep slope. The car careered down the slope and Mr Hall was seriously injured.
Held: The illegality of his driving did not bar his claim against Mr Hebert but that he was contributorily negligent as to 50%.
McLachlin J discussed the need for a consistent and defensible principle for the operation of the doctrine ex turpi causa: ‘a need in the law of tort for a principle which permits judges to deny recovery to a plaintiff on the ground that to do so would undermine the integrity of the justice system. The power is a limited one. Its use is justified where allowing the plaintiff’s claim would introduce inconsistency into the fabric of the law, either by permitting the plaintiff to profit from an illegal or wrongful act, or to evade a penalty prescribed by criminal law. Its use is not justified where the plaintiff’s claim is merely for compensation for personal injuries sustained as a consequence of the negligence of the defendant.’ He explained the principle, saying that: ‘to allow recovery in these cases would be to allow recovery for what is illegal. It would put the courts in the position of saying that the same conduct is both legal, in the sense of being capable of rectification by the court, and illegal. It would, in short, introduce an inconsistency in the law. It is particularly important in this context that we bear in mind that the law must aspire to be a unified institution, the parts of which – contract, tort, the criminal law – must be in essential harmony. For the courts to punish conduct with the one hand while rewarding it with the other, would be to ‘create an intolerable fissure in the law’s conceptually seamless web’: Weinrib – ‘Illegality as a Tort Defence’ (1976) 26 U.T.L.J. 28 at p. 42. We thus see that the concern, put at its most fundamental, is with the integrity of the legal system.’
This case is cited by:
- Cited – Vellino -v- Chief Constable of Greater Manchester Police CA (Times 09-Aug-01, Bailii, [2001] EWCA Civ 1249, [2002] 1 WLR 218, [2002] PIQR P10, [2002] 3 All ER 78)
The police were not under any duty to protect someone who had been arrested from injuring himself in an attempt to escape. The claimant had a history of seeking to avoid capture by jumping from his flat window. On this occasion he injured himself in . . - Cited – Moore Stephens (A Firm) -v- Stone Rolls Ltd (in liquidation) HL (Bailii, [2009] UKHL 39, Times, [2009] 1 AC 1391, [2009] Bus LR 1356, [2009] PNLR 36, [2009] 3 WLR 455)
The appellants had audited the books of the respondent company, but had failed to identify substantial frauds by an employee of the respondent. The auditors appealed a finding of professional negligence, relying on the maxim ex turpi causa non . . - Cited – Les Laboratoires Servier and Another -v- Apotex Inc and Others SC (Bailii, [2014] UKSC 55, [2015] 1 AC 430, [2014] WLR(D) 452, [2014] BUS LR 1217, [2015] 1 AC 430, [2014] 3 WLR 1257, Bailii Summary, WLRD, UKSC 2012/0158, SC, SC Summary, SC Video)
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . . - Cited – Hounga -v- Allen and Another SC (Bailii, [2014] UKSC 47, [2014] ICR 847, [2014] Eq LR 559, [2014] 4 All ER 595, [2014] 1 WLR 2889, [2014] IRLR 811, [2014] WLR(D) 353, Bailii Summary, WLRD, UKSC 2012/0188, SC Summary, SC)
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . . - Cited – Jetivia Sa and Another -v- Bilta (UK) Ltd and Others SC (Bailii, [2015] UKSC 23, [2015] WLR(D) 182, Bailii Summary, WLRD, UKSC 2013/0206, SC Summary, SC, [2015] 2 Lloyd’s Rep 61, [2015] 1 BCLC 443, [2015] 2 All ER (Comm) 281, [2015] BVC 20, [2015] 2 WLR 1168, [2015] BCC 343, [2015] 2 All ER 1083)
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
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Last Update: 25-Jun-16
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