Defence of Illegality: Ex Turpi Causa Non Oritur Actio

Law and You > Law of Tort > Defence of Illegality: Ex Turpi Causa Non Oritur Actio

Introduction
General Defences in Tort Law
Defence of Illegality
Principle of Ex Turpi Causa
Requirements of Ex Turpi Causa Non Oritur Actio
Limits and Criticism to Defence of illegality
Case Laws for Defence of Illegality
Conclusion
Related Topics

The word “Tort” is of a French origin which has been further derived from the Latin word “Tortum” meaning “to twist” and implies conduct which is tortious⁴or twisted. It is a species of civil injury or wrong. A tort is a wrongful act or an infringement of a right (other than under contract) leading to legal liability and for which civil courts award compensation. Section 2 of Limitation Act 163 defines it as ‘a civil wrong which is not exclusively the breach of contract or breach of trust’. For example, to stop or obstruct a person to perform his legal right is a tort. (Case Ashby v. White), In this article, we shall discuss the concept of tort and law of tort. In tort law, a defence is a legal justification or excuse that a defendant may raise to avoid liability for committing a tort (a wrongful act). These defences either negate the elements of the tort or justify the defendant’s actions under the circumstances. In this article, let us discuss defence of illegality: ex turpi causa non oritur actio.

General Defences in Tort Law:

In tort law, several defences are available to a defendant who is being sued for a tort. These defences can either completely absolve liability or reduce the amount of damages. Here’s a list of common defences in tort:

Consent (Volenti Non Fit Injuria): If the plaintiff consented to the act that caused the harm, the defendant may not be liable. Consent can be express or implied.
Self-Defence: A defendant can avoid liability by proving that the tortious act was necessary to protect themselves from harm. The force used must be reasonable and proportionate to the threat.
Defence of Others: Similar to self-defence, a defendant may claim they acted to protect someone else from harm. Again, the force used must be reasonable.
Defence of Property: A person is allowed to use reasonable force to protect their property. However, the force must be proportional and not excessive.
Necessity: This defence applies when a tortious act was done to prevent greater harm to the defendant, others, or property. For example, trespassing to escape an imminent danger may be excused under necessity.
Statutory Authority: If the defendant was acting under statutory authority (i.e., following the law or legal procedures), they may be excused from liability, even if harm resulted.
Contributory Negligence: If the plaintiff’s own negligence contributed to their injury, they may be barred from recovering damages (in jurisdictions that still recognize contributory negligence as a complete defence).
Comparative Negligence: Similar to contributory negligence, but in this case, damages are apportioned based on the relative fault of the plaintiff and defendant. The plaintiff’s recovery may be reduced but not entirely barred.
Act of God (Force Majeure): A defendant may avoid liability if the harm was caused by an extraordinary natural event (such as a flood, earthquake, or storm) that was unforeseeable and unavoidable.
Inevitable Accident: This defence asserts that the incident causing harm was unavoidable, even with reasonable care, and therefore, the defendant should not be held liable.
Mistake: A defendant may argue that the tortious act was the result of a mistake, but this defence is generally weak unless the mistake was reasonable and unavoidable.
Private Defence: A person may defend themselves or their property against the wrongful acts of others, provided the defence is proportionate to the threat.
Duress: A defendant may claim they were forced to commit a tort due to the threat of harm, making their actions involuntary.
Illegality (Ex Turpi Causa Non Oritur Actio): If the plaintiff was involved in illegal activity at the time of the tort, the defendant might avoid liability on the basis that a claim cannot arise from the plaintiff’s wrongful conduct.
Limitation Period (Statute of Limitations): A claim in tort must be brought within a specified time period. If the plaintiff files the claim too late, the defendant can raise the limitation period as a defence.

Each of these defences has its own criteria and conditions, and their applicability depends on the jurisdiction and the specific circumstances of the case.

Ex Turpi Causa Non Oritur Actio (Illegality):

Ex turpi causa non oritur actio, often shortened to ex turpi causa, is a Latin maxim meaning “no action arises from a dishonorable cause.” It serves as a defence in tort law to prevent a plaintiff from recovering damages if the claim arises from the plaintiff’s own illegal or immoral conduct. Essentially, it bars a plaintiff from using the courts to seek relief if they were engaged in wrongful activity at the time of the injury or loss. This defence is also known as the illegality defence or defence of illegality. For example, if A and B engage in a joint illegal activity (such as robbing a bank), and A is injured due to B’s negligence during the act, A would not be able to claim compensation from B for the injury. The court would likely apply the ex turpi causa defence, preventing A from recovering damages since the injury arose out of illegal conduct.

Key Principles of Ex Turpi Causa:

Plaintiff’s Illegal or Immoral Conduct: For the defence to apply, the plaintiff must have engaged in some form of illegal or immoral activity. This can include criminal acts, acts against public policy, or other seriously improper behaviour.
Causal Link Between the Wrongdoing and the Claim: The plaintiff’s illegal conduct must be directly connected to the claim they are making. The defence applies only if the harm or injury suffered by the plaintiff was directly caused by, or closely linked to, the illegal activity.
Public Policy: The foundation of the defence is public policy. The courts refuse to assist a plaintiff in gaining compensation if doing so would condone illegal activity or allow someone to benefit from their own wrongdoing. The idea is that the courts should not reward or protect illegal conduct.

Requirements for Ex Turpi Causa Defence:

Plaintiff’s Conduct Must Be Serious: The defence typically applies only where the plaintiff’s conduct is of a serious nature, such as criminal behaviour. Minor wrongdoings or trivial misconduct are generally not sufficient to trigger the ex turpi causa defence.
Connection Between the Wrongdoing and the Claim: There must be a sufficient connection between the illegal conduct and the tort claim. The defence will not succeed if the illegal activity is incidental or unrelated to the plaintiff’s claim. The key test is whether the plaintiff’s injury or loss arises directly out of the illegal act.
Proportionality and Fairness: Courts will assess whether applying the defence is proportionate and fair in the circumstances. The defence will not be applied in an overly harsh or unfair way. For instance, if applying the defence would produce an unjust result, the court might reject it.

Limits and Criticisms of Ex Turpi Causa:

Proportionality and Discretion: Courts often consider the proportionality of applying the ex turpi causa defence, particularly in cases where it would lead to an excessively harsh outcome. If the plaintiff’s illegal act is not closely related to the claim or if applying the defence would be unfair, courts may be reluctant to enforce it.
Inconsistent Application: The defence can sometimes be inconsistently applied, as courts weigh various factors, including public policy, fairness, and the connection between the illegal act and the claim. This can lead to uncertainty about when the defence will succeed.
Judicial Discretion: Courts have significant discretion when applying the ex turpi causa defence, allowing them to refuse it in certain cases, especially where applying it would lead to unjust results. This flexibility ensures that the defence is not applied too rigidly or unfairly.

Case Laws:

In Ashton v. Turner, [1981] l QB case, where the plaintiff and the defendant were both involved in a car accident after committing a burglary. The plaintiff sought damages for personal injuries suffered in the crash, which occurred as the defendant was driving recklessly to escape the crime scene. The court held that the ex turpi causa defence applied and barred the plaintiff from recovering damages because the injury arose out of their joint criminal activity.

Gray v. Thames Trains Ltd, [2009] UKHL 33 case involved a plaintiff who suffered psychiatric injuries after being involved in a train accident caused by the defendant’s negligence. The plaintiff later committed a serious crime due to his mental condition and was seeking damages for the consequences of his detention. The court ruled that the ex turpi causa defence barred the claim because the harm for which he was seeking damages (his detention) was a direct result of his own criminal conduct.

In Pitts v. Hunt, [1991] 1 QB 24 case, where the plaintiff was a passenger on a motorcycle driven by the defendant, who was uninsured, unlicensed, and driving recklessly. The plaintiff had encouraged the defendant’s dangerous driving. After the plaintiff was injured in an accident caused by the defendant’s reckless driving, he attempted to sue for damages. The court applied the ex turpi causa defence, holding that the plaintiff could not recover because his own participation in the illegal activity contributed to the accident.

The ex turpi causa non oritur actio or defence of illegality is a tool in tort law that prevents plaintiffs from profiting from their own illegal or immoral conduct. It is rooted in the idea that the law should not aid individuals whose claims arise from wrongdoing. However, courts must carefully assess whether applying the defence is appropriate in each case, considering the seriousness of the plaintiff’s conduct, the connection between the illegality and the claim, and whether applying the defence would be just and proportionate. While it is an important public policy defence, it is not applied automatically and is subject to judicial discretion.

Conclusion:

The defense of illegality, encapsulated by the principle “ex turpi causa non oritur actio” (from a dishonorable cause, an action does not arise), plays a crucial role in tort law by barring claims that arise from unlawful activities. This doctrine asserts that a plaintiff cannot seek legal remedies if their claim is rooted in illegal conduct, promoting the integrity of the legal system and discouraging immoral behavior.

By preventing recovery for injuries sustained while engaging in illegal acts, the defense aims to maintain public policy and discourage individuals from exploiting the legal system for gains derived from wrongdoing. However, its application can lead to contentious debates, particularly when assessing the extent of the plaintiff’s wrongdoing and its direct connection to the claim.

While the defense serves to uphold legal and moral standards, its rigid application can sometimes result in perceived injustices, particularly in cases where the plaintiff’s illegal act is only tangentially related to their injury. As courts navigate these complexities, the defence of illegality continues to evolve, balancing the need for accountability with the protection of legitimate claims in tort law. Overall, it underscores the importance of lawful conduct in seeking redress for grievances.