Date: Fri, 24 Mar 2006 09:24:03 +0800

From: Rick Glofcheski

Subject: A Question on Consent -- a relevant Canadian case

Hello from Hong Kong.

It seems to me that ex turpi causa may be relevant to the discussion, or in any event may in some circumstances provide the answer to the liability question. The defence is related to consent in that it deprives a plaintiff of a cause of action if s/he was injured while willingly participating in an illegal venture. In Murphy v Culhane [1976] 3 All ER 533, this defence was considered in the context of battery. Murphy and some other men went to beat up the defendant. In the fight, the defendant struck Murphy with a plank and killed him. The plaintiff (Murphy’s widow) brought an action against the defendant under the Fatal Accidents Act for damages for battery. The plaintiff applied for summary judgment. The application for summary judgment was dismissed in view of the defendant’s plea of ex turpi causa, which Lord Denning held was applicable in such circumstances.

In Lane v Holloway [1967] 3 All ER 129, it was said that for the defence of ex turpi causa to apply there must be some proportionality between the defendant’s blow and the plaintiff’s act. If the defendant gives a “savage blow out of all proportion to the occasion” the defence does not apply and the action could proceed. In Revill v Newbery [1996] 1 All ER 291, where the defendant poked his gun through the door and shot the plaintiff who was attempting to burgle the defendant's premises, the court rejected the defence of ex turpi causa because it was concerned to avoid treating the plaintiff as an “outlaw” completely bereft of the law’s protection. The court so decided, influenced in part by what it understood to be the intention of the legislature in including trespassers within the law’s protection with the passing of the Occupiers’ Liability Act 1984.

However, in Cross v Kirkby (The Times Law Report, 5 April 2000), the English Court of Appeal applied ex turpi causa as an alternative reason to defeat the plaintiff’s claim in battery in circumstances where the plaintiff had been the instigator of a fight that resulted in his injuries at the hands of the defendant. In the court’s view, proportionality of the defendant’s blow was not the issue in the application of this defence, because the defence does not exist for the benefit of the defendant.

Rather, the issue was the nature of the plaintiff’s criminal conduct, and whether “the facts that give rise to [his claim] are inextricably linked with his criminal conduct”. Having illegally entered the defendant’s property and threatened the plaintiff with weapons, the court held that the facts were inextricably linked and the defence would apply.

Rick Glofcheski
University of Hong Kong

At 02:54 24/03/2006, Lewis KLAR wrote:

Hello:

There is a Canadian case, cited in my text, Klar, Tort Law, 3rd ed., at 120, n. 40, which discusses this issue in some depth. The case is Abbott (Next Friend of) v Jarocki (1997), 208 A.R. 133 (Alta. Prov. Ct.) You can find it in Quick Law. The court allowed an action brought by a 17 year old high school student against a 15 year old student for injuries incurred in a fight. It was a "mutual" fight. The court held, among other things, that "a person cannot consent to bodily harm during a fight". It cites an Ontario Court of Appeal case Loney v Butch [1989] O.J. No. 1072 which held that the criminal law and tort law were the same in this respect and applied the Jobidon case to civil law. If consent is illegal for criminal law purposes, the court held that it cannot be valid for civil law purposes. You might find the discussion in these cases helpful.

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