The claimant was awarded damages for injuries suffered in his work as a seaman. The respondents claimed that he should not receive damages, since he had made false declarations as to his health in order to obtain employment, hiding his epilepsy condition.
Held: Clunis established that the court would not support an action founded upon an illegal or immoral act. Here the action for the loss of future earnings was founded on the possibility of his continued unlawful employment. (Ward LJ dissenting)
Clarke LJ, with whom Tuckey LJ agreed, said: ‘It is common ground that there are cases in which public policy will prevent a claimant from recovering the whole of the damages which, but for the rule of public policy, he would otherwise have recovered. The principle can perhaps be stated as a variation of the maxim so that it reads ex turpi causa non oritur damnum, where the damnum is the loss which would have been recovered but for the relevant illegal or immoral act. A classic example is the principle that a person who makes his living from burglary cannot have damages assessed on the basis of what he would have earned from burglary but for the defendant’s negligence.
To my mind the authorities support that approach. They seem to me to support the proposition that where a claimant has to rely upon his or her own unlawful act in order to establish the whole or part of his or her claim the claim will fail either wholly or in part . . In the present context the principle can be seen from the decision of this court in Hunter v Butler [1996] RTR 396, although it has to be said that the case does give rise to some difficulties of interpretation . . The principle applied by Hobhouse LJ is, as I see it, that stated at p 405b, namely: ‘If a plaintiff comes to court and asserts as part of her case that she would have committed criminal acts and bases her claim on such an assertion she cannot recover in a court of law on that basis.’ That appears to me to be substantially the same test as that adopted in the ex turpi causa non oritur actio cases, as stated in the passage from the judgment of Beldam LJ in the Clunis case [1998] QB 978 . .
I am not sure whether it is quite the same principle as that applied by Waite LJ but it does not seem to me necessary to consider that question further because, since Hirst LJ agreed with the judgment of Hobhouse LJ and since the principle just stated is part of the ratio decidendi of Hunter v Butler, we are bound to follow it. . .
In my opinion Hobhouse LJ must have had in mind a case where the claimant bases his or her claim upon his or her unlawful act in a substantial way. It is not, however, in my opinion sufficient that he or she has been party to some collateral or insignificant illegality or unlawful act. Thus, . . a claimant is entitled to be compensated for his loss of earnings even though he had in the past failed to disclose them to the Inland Revenue . . .’
Judges:
Lord Justice Clarke, Lord Justice Ward, Lord Justice Tuckey
Citations:
Times 28-Dec-2002, [2002] EWCA Civ 1821, [2003] PIQR 252, [2003] ICR 766, [2002] All ER (D) 146
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Clunis (By his Next Friend Prince) v Camden and Islington Health Authority CA 5-Dec-1997
The plaintiff had killed someone and, as a result, been convicted of manslaughter and ordered to be detained in a secure hospital when subject to after-care under section 117 of the 1983 Act. He sought damages from the health authority on the basis . .
Cited – Hunter v Butler 1986
. .
Appeal from – Hewison v Meridian Shipping Services Pte Ltd, Coflexip Stena Offshore Ltd, Flex Installer Offshore Ltd QBD 30-Nov-2001
The applicant had been severely injured at work. He was an epileptic, and had not disclosed his condition to his employers, who because of the safety aspects of the work on oil rigs could not have employed him if he had disclosed the sickness. The . .
Cited – Euro-Diam Ltd v Bathurst CA 1988
The court had found that securities had been registered misleadingly in the US. The court held that it could not aid illegality. The court considered the defence of ‘ex turpi cause non oritur actio’. Kerr L.J: ‘The ex turpi causa defence ultimately . .
Cited by:
Cited – Gray v Thames Trains Ltd and Another CA 25-Jun-2008
The claimant was a victim of the Ladbroke Grove rail crash. He later committed and was convicted of a manslaughter and detained under the 1983 Act. He said that the accident had caused a major personality change. The defendant relied on the defence . .
Cited – Cheltenham Borough Council v Laird QBD 15-Jun-2009
The council sought damages saying that their former chief executive had not disclosed her history of depressive illness when applying for her job.
Held: The replies were not dishonest as the form could have been misconstrued. The claim failed. . .
Cited – Moore Stephens (A Firm) v Stone Rolls Ltd (in liquidation) HL 30-Jul-2009
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 – Soutzos v Asombang and Others ChD 21-Jun-2011
The claimant had obtained a freezing order against the defendants. His claim having been dismissed, the court now considered if and what damages should be paid under the cross-undertaking he had given.
Held: Setting out and applying the . .
Lists of cited by and citing cases may be incomplete.
Damages, Personal Injury
Updated: 06 June 2022; Ref: scu.178451