The plaintiff sought damages after being injured when a co-worker fired a shot. The employee however had himself coupled the detonator to the cable rather than leaving it to the shotfirer, and had his cimmitted a criminal offence. He had been found a quarter responsible, and the NCB sought to rely on the doctrine of ex turpi causa. The trial judge considered a 50% apportionment to be appropriate, on the basis that the plaintiff and the defendant’s employee were equally to blame.
Held: The House accepted that he had been contributorily negligent but rejected the defence of illegality.
The damages should be reduced by only 25%. Lord Reid observed at p 427 that it was not right to disturb the trial judge’s apportionment lightly, but that ‘the difference between holding the parties equally to blame and holding the one’s share of responsibility to be three times that of the other is so substantial that we should give effect to it’.
Lord Oaksey approved Nicol v NCB: ‘I agree with the judgment of Lord Guthrie in Nicol v National Coal Board . . that it cannot be said to be necessarily outside the course of the employment of a workman that he performs his work in a manner which is in breach of a statutory regulation. Here it was within the shot-firer’s employment to fire the shot electrically, but he did it without due care and in breach of the regulation. Unless there is something in the statute which creates the obligation indicating the intention that no action shall be brought a common law in respect of its breach, the ordinary rules of the common law of tort are applicable, including the doctrine respondeat superior.’
Lord Porter said: ‘My Lords, save in one case I cannot find that such a plea has ever been put forward in circumstances similar to these as excusing common law negligence. If it were sound it would be a defence to many actions in which it was not raised and might also be a defence to many claims for compensation. Conceivably it may be a defence in certain cases between the participes criminis, but the argument that it may be a defence between the two persons involved does not support a conclusion that a third party whose servant is one of two involved in disobeying a regulation and so participating in a criminal offence is thereby absolved from liability.’ Applying the Cakebread case, ‘I cannot believe that a breach of a statutory obligation drafted to ensure the adoption of a careful method of working is a ‘turpis causa’ within the meaning of the rule. Indeed, the adage itself is generally applied to a question of contract and I am by no means prepared to concede where concession is not required that it applies also to the case of a tort. This view is, in my opinion, in conformity with the Law Reform (Contributory Negligence) Act 1945 which, after enacting that a claim shall not be defeated by reason of the fault of one person where the damage is caused partly by the fault of another, then goes on to define ‘fault’ as meaning ‘negligence, breach of statutory duty or other act or omission . .’.’
Lord Reid said that the 1945 Act worked to disapply the ex turpi doctrine in all forms of tort in favour of apportionment: ‘Reading the appropriate part of this definition back into section 1 makes it provide that where a person suffers damage as the result partly of his own breach of statutory duty which would, apart from this Act, give rise to the defence of contributory negligence his claim shall not be defeated . . [W]hatever the former position may have been, it is now clear that the appellants cannot rely on this defence [viz turpitude].’
Lord Asquith of Bishopstone said: ‘The defendants relied on the maxim ‘ex turpi causa non oritur actio’ as absolving them of liability.
. . The vast majority of cases in which the maxim has been applied have been cases where, there being an illegal agreement between A and B, either seeks to sue the other for its enforcement or for damages for its breach. That, of course, is not this case. Cases where an action in tort has been defeated by the maxim are exceedingly rare. Possibly a party to an illegal prize fight who is damaged in the conflict cannot sue for assault (Boulter v Clark (1747) Bull N.P. 16, See: (1817) Bull N. P.).
. . If two burglars, A and B, agree to open a safe by means of explosives, and A so negligently handles the explosive charge as to injure B, B might find some difficulty in maintaining an action for negligence against A. But if A and B are proceeding to the premises which they intend burglariously to enter, and before they enter them, B picks A’s pocket and steals his watch, I cannot prevail on myself to believe that A could not sue in tort . . The theft is totally unconnected with the burglary.’
Lord Reid, Lord Oaksey, Lord Porter
 AC 403,  1 All ER 546
Law Reform (Contributory Negligence) Act 1945 1(1)
England and Wales
- Approved – Nicol v National Coal Board SCS 1952
The court considered a claim against his employer after the plaintiff suffered injury after a breach of safety regulations by a co-worker.
Held: Referring to Harrison v NCB: ‘It appears to me that that principle disposes of the argument . .
(1952) 102 LJ 357
- Cited – Cakebread v Hopping Bros Ltd CA 1947
Cohen LJ discussed the doctrine of ex turpi causa non oritur actio, saying: ‘The maxim ex turpi causa is based on public policy, and it seems to me plain on the facts of this case that public policy, far from requiring that this action shall be . .
 KB 641
- Cited – Stapley v Gypsum Mines Ltd HL 25-Jun-1953
Plaintiff to take own responsibility for damage
The question was whether the fault of the deceased’s fellow workman, they both having disobeyed their foreman’s instructions, was to be regarded as having contributed to the accident.
Held: A plaintiff must ‘share in the responsibility for the . .
 AC 663,  UKHL 4,  2 All ER 478,  3 WLR 279
- Cited – Majrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
 EWCA Civ 251, Times 21-Mar-05,  QB 848,  ICR 977,  2 WLR 1503,  IRLR 340
- Cited – Majrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
 UKHL 34, Times 13-Jul-06,  4 All ER 395, (2006) 91 BMLR 85,  ICR 1199,  3 WLR 125,  1 AC 224,  IRLR 695
- Cited – Vellino v Chief Constable of Greater Manchester Police CA 31-Jul-2001
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 . .
Times 09-Aug-01,  EWCA Civ 1249,  1 WLR 218,  PIQR P10,  3 All ER 78
- Cited – Gray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered severe psychiatric injured in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had gone on to kill another person, and he had been detained under section . .
 UKHL 33, Times 19-Jun-09,  PIQR P22, (2009) 108 BMLR 205,  4 All ER 81,  3 WLR 167,  1 AC 1339
- Cited – Hounga v Allen and Another SC 30-Jul-2014
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 . .
 UKSC 47,  ICR 847,  Eq LR 559,  4 All ER 595,  1 WLR 2889,  IRLR 811,  WLR(D) 353, UKSC 2012/0188
- Cited – Jackson v Murray and Another SC 18-Feb-2015
Child not entirely free of responsibility
The claimant child, left a school bus and stepped out from behind it into the path of the respondent’s car. She appealed against a finding of 70% contributory negligence.
Held: Her appeal succeeded (Majority, Lord Hodge and Lord Wilson . .
 RTR 20,  2 All ER 805,  UKSC 5, 2015 SCLR 235, 2015 Rep LR 42, 2015 GWD 7-141, 2015 SLT 151, UKSC 2014/0070, 2015 SC (UKSC) 105,  PIQR P16
These lists may be incomplete.
Updated: 02 December 2020; Ref: scu.241429