QUEEN’S BENCH DIVISION ASHTON v TURNER [1981] QB 137

March 18 1980

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EWBANK J:

… It is clear to me that the plaintiff and the first defendant were jointly participating in a burglary. This burglary involved the use of a get-away car. It was being driven by the first defendant in order to avoid the arrest of the two of them. The question arises: what effect does that have on the claim made by the plaintiff? There are no direct authorities in English law. There are a number of obiter dicta…The first case I refer to is National Coal Board v England [1954] 1 All ER 546, [1954] AC 403. This was a case about mineworkers. The facts are very far away from the facts of the present case. Lord Asquith said ([1954] 1 All ER 546 at 558, [1954] AC 403 at 428-429):

‘The appellants relied on the maxim ‘ex turpi causa non oritur actio’ as absolving them of liability...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 ... But it seems to me in principle that the plaintiff cannot be precluded from suing simply because the wrongful act is committed after the illegal agreement is made and during the period involved in its execution. The act must, I should have supposed, at least be a step in the execution of the common illegal purpose. 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 injury 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. There is, however, a surprising dearth of authority on this point.’

… The next case is Hardy v Motor Insurers’ Bureau [1964] 2 All ER 742 at 746, [1964] 2 QB 745 at 760. This was a case where a security officer was dragged along when he tried to stop a car. Lord Denning MR said:

‘... no person can claim reparation or indemnity for the consequences of a criminal offence where his own wicked and deliberate intent is an essential ingredient in it ... It is based on the broad rule of public policy that no person can claim indemnity or reparation for his own wilful and culpable crime. He is under a disability precluding him from imposing a claim.’

Then I was referred to Murphy v Culhane [1976] 3 All ER 533, [1977] QB 94. In that case there had been an affray. This was an action by the widow of one of the participants, and I have been referred to a passage in the judgement of Lord Denning MR where he said ([1976] 3 All ER 533 at 535-536, [1977] QB 94 at 98):

‘Apart altogether from damages, however, I think there may well be a defence on liability. If Murphy was one of a gang which set out to beat up Culhane, it may well be that he could not sue for damages if he got more than he bargained for. A man who takes part in a criminal affray may well be said to have been guilty of such a wicked act as to deprive himself of a cause of action, or, alternative, to have had taken on himself the risk. I put the case in the course of argument: suppose that a burglar breaks into a house and the householder, finding him there, picks up a gun and shoots him, using more force maybe than is reasonably necessary. The householder may be guilty of manslaughter and liable to be brought before the criminal courts. But I doubt very much whether the burglar’s widow could have an action for damages. The householder might well have a defence either on the ground of ex turpi causa non oritur actio or volenti non fit injuria. So in the present case it is open to the defendant to raise both those defences. Such defences would go to the whole claim.’…[T]he general trend of those dicta is that a criminal, for one against another, cannot bring a claim for negligence for incidents which have occurred during his participation in a crime.

…The conclusion I have come to is that the law of England may in certain circumstances not recognise the existence of a duty of care by one participant in a crime to another participant in the same crime, in relation to an act done in connection with the commission of that crime. That law is based on public policy, and the application of the law depends on a consideration of all the facts. Having regard to all the facts in this case I have come to the conclusion that a duty of care did not exist between the first defendant and the plaintiff during the course of the burglary and during the course of the subsequent flight in the get-away car …

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EWBANK J:

The plaintiff, Philip Ashton, is now aged 24. On December 18, 1976, when he was 20, in the early hours of the morning he was a passenger in a car being driven by his friend Kevin Turner, the first defendant. The car was owned by another friend of theirs called Peter McLune, who is the second defendant. There was a serious accident with the car and Philip Ashton now claims against Kevin Turner and Peter McLune. Philip Ashton was badly hurt in the accident and the damages have been agreed, subject to liability, at £70,000.

The issue before me has been the liability of the first or second defendant to pay damages to the plaintiff. The first defendant has taken no part in the action; he entered no appearance and has not been represented. The second defendant has filed a defence. The case against the first defendant made by the plaintiff is one of negligence. The plaintiff relies on, among other things, two convictions recorded against the first defendant: on January 28, 1977 (although it is pleaded as January 27), the defendant was charged before a magistrates’ court with driving dangerously and with driving over the limit of alcohol; he pleaded guilty to both these offences and was sentenced.

The case against the second defendant is that the second defendant consented to or permitted the use of the car by the first defendant. The second defendant, in his defence, asserts that he gave no such consent or

permission. He relies, among other things, upon another conviction recorded against the first defendant, also on January 28, for taking a car without the consent of the owner, for which he was also sentenced. Secondly, the second defendant says that the plaintiff and the first defendant were burglars and that the car was used by them as a get-away car. As against the first defendant, he relies on a further conviction of the same date (although the memorandum is wrongly dated) for burglary, for which he was also sentenced. The second defendant asserts that the plaintiff, as a matter of public policy, has no right of action against him. As an alternative, he asserts that the maxim volenti non fit injuria applies, and, in any event, he says that if he fails on these points the plaintiff was guilty of contributory negligence.

The plaintiff was badly hurt in this accident. He is partly crippled; he has a defect of speech; he has loss of memory for many of the relevant matters. I heard him in the witness box and I found myself unable to rely on his evidence. Several witnesses saw the first defendant drive the second defendant’s car on other occasions and it is accepted by the first defendant that he had done so. The plaintiff told me that on the night in question the first defendant had asked the second defendant if he could drive the car home, and the second defendant had replied: ‘If you get caught say you pinched it,’ meaning that the second defendant was not insured and that the first defendant should say that if he got caught. I find myself unable to accept that that was said by these two on that occasion.

I have allowed, during the course of the trial, several written statements to be put in, on the ground that the witnesses were missing. In particular, statements of Mr. Fenelly and Mr. McQueen, who were two taxi drivers. I have no particular reason to doubt what they say in their statements, but in view of the other evidence which I have had I do not attach any particular weight to their evidence. I have also had a statement from the owner of the shop, and from the police, and basically the same considerations apply. I allowed in evidence also, two statements by the second defendant - they are contradictory as to times. He asserts in both statements that he gave no permission to the first defendant. The plaintiff has not had an opportunity of cross-examining him and I attach no weight to these two statements. I was asked to allow in a statement by the first defendant. The application was made by the second defendant on the

basis that the first defendant was an opposing party. I refused that application and the first defendant was accordingly called by the second defendant, and I have seen him in the witness box. I have heard his evidence and I accept his evidence as a true account of what happened that night.

A summary of his evidence is as follows. The three men all live fairly close together. The first defendant knows the second defendant and he knows the plaintiff because they went to school together. On the night before the accident he met them. The three of them were in the Railway Hotel, where they were drinking. They were drinking ‘brown’ and ‘bitter’ and might have had some whisky as well. Then they went to the Kirklands Wine Bar in the second defendant’s car which the second defendant drove. There they drank Sangria. They had one or two jugs of that. Then they went on to the Hanover, where they were drinking pints and shorts, buying rounds for each other. and then to the Flintlock Club, where they were drinking the same. The first defendant told me he had no check on what they had. The bar closed at two o’clock in the morning. By the time the bar closed the second defendant was drunk and staggering and said to the first defendant: ‘You drive the car.’ This is the car which, as I said, the first defendant had driven on other occasions. The plaintiff sat in the front and they drove to the second defendant’s home. They sat down. The second defendant was standing by the stairs. The plaintiff said: ‘I have just come back from Jersey and I’m skint,’ and he then suggested that they break into a shop, he suggested a jewellers in the Old Swan. The first defendant said he first of all said ‘No,’ but in the end said: ‘Yes.’ The second defendant said, according to the first defendant, ‘I want nothing to do with it’ and went to bed. He was asked in cross-examination whether it was not a fact that the second defendant had said on that occasion that if he was caught he was to say that he had pinched the car, but the first defendant told me that he could not say that he had said that. The first time he borrowed it, he had said that he must say that he had stolen it. He said that the second defendant said that he wanted no part of it. The keys were on the mantelpiece, the first defendant says: ‘We,’ that is the plaintiff and himself, ‘just took the keys and went.’ The plaintiff had said: ‘Get the keys’ and the first defendant took them, and he, the first defendant, drove. He was not certain whether they went to the Old Swan first, or to the petrol station. At some stage they bought a

pound’s worth of petrol. They drove around, the shops were shuttered and the first defendant suggested they drive down Penny Lane, four or five miles away. They saw a radio shop and he said: ‘Here we are.’ The plaintiff said: ‘Yes, fair enough.’ He parked the car in a side street, came out by a bus shelter, and the first defendant told the plaintiff to find a brick to smash the window. He said he would get the car running and ran around the corner. When he came back the plaintiff had a brick in his hand. He said: ‘Yes’ and the plaintiff threw the brick through the window. ‘We both went in the window, took the radios out, the alarm went off. We reached through and took two or three radios, and started running.’ The first defendant said to the plaintiff: ‘You drive.’ The plaintiff said: ‘No, you know the car better, you drive it.’ At that moment a taxi pulled across the side of the bonnet. The plaintiff said: ‘Reverse’ and the first defendant reversed back to Penny Lane. The plaintiff said: ‘Go through the gears.’ By this time there were two taxis, one was at the back. I have seen a plan of the place where the accident happened. He took the corner. He said the taxi was at the back of him. The car skidded. He was travelling at more than 60 miles per hour in order to get away from the taxi drivers. That is how the accident occurred.

It is clear to me that the plaintiff and the first defendant were jointly participating in a burglary. This burglary involved the use of a get-away car. It was being driven by the first defendant in order to avoid the arrest of the two of them. The question arises: what effect does that have on the claim made by the plaintiff? There are no direct authorities in English law. There are a number of obiter dicta, and I have been warned by Mr. Crowe to be cautious in considering these dicta, and must remember that in many cases they were casual observations about other matters.

The first case I refer to is National Coal Board v. England [1954] A.C. 403. This was a case about mineworkers. The facts are very far away from the facts of the present case. Lord Asquith said, at pp. 428-429:

‘The defendants relied on the maxim ‘ex turpi causa non oritur actio’ as absolving them of liability.’ Later: ‘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. But it seems to me in principle that the plaintiff cannot be precluded from

suing simply because the wrongful act is committed after the illegal agreement is made and during the period involved in its execution. The act must, I should have supposed, at least be a step in the execution of the common illegal purpose. 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 (provided he had first prosecuted B for larceny). The theft is totally unconnected with the burglary. There is, however, a surprising dearth of authority on this point.’

On behalf of the second defendant it is suggested that this case is closer to the case of the safe-breakers than the pickpocket described in Lord Asquith’s judgment.

The next case is Hardy v. Motor Insurers’ Bureau [1964] 2 Q.B. 745. This was a case where a security officer was dragged along when he tried to stop a car. The passage to which I have been referred is at p. 760:

‘... no person can claim reparation or indemnity for the consequences of a criminal offence where his own wicked and deliberate intent is an essential ingredient in it ... This rule is not rested on an implied exception in the policy of insurance. It is based on the broad rule of public policy that no person can claim indemnity or reparation for his own wilful and culpable crime. He is under a disability precluding him from imposing a claim.’

Then I was referred to Murphy v. Culhane [1977] Q.B. 94. In that case there had been an affray. This was an action by the widow of one of the participants, and I have been referred to a passage in the judgment of Lord Denning M.R., where he said, at p. 98:

‘Apart altogether from damages, however, I think there may well be a defence on liability. If Murphy was one of a gang which set out to beat up Culhane, it may well be that he could not sue for damages if he got more than he bargained for. A man who takes part in a criminal affray may

well be said to have been guilty of such a wicked act as to deprive himself of a cause of action, or, alternatively, to have had taken upon himself the risk. I put the case in the course of argument: suppose that a burglar breaks into a house and the householder, finding him there picks up a gun and shoots him - using more force, maybe, than is reasonably necessary. The householder may be guilty of manslaughter and liable to be brought before the criminal courts. But I doubt very much whether the burglar’s widow could have an action for damages. The householder might well have a defence either on the ground of ex turpi causa non oritur actio or volenti non fit injuria. So in the present case it is open to the defendant to raise both those defences. Such defences would go to the whole claim.’ Mr. Morland has addressed me on the question of the applicability of the maxim ex turpi causa non oritur actio to cases of tort, and has suggested that in a number of cases the maxim is used loosely, when the proper approach should be to look at the matter from the point of view of public policy. I come to a case in due course where the matter has been very carefully considered by an Australian judge.

Those are the obiter dicta in English cases to which I have referred, and the general trend of those dicta is that a criminal, for one reason or another, cannot bring a claim for negligence for incidents which have occurred during his participation in a crime.

There have been two Australian cases where the matter has gone a good deal further, and I am asked to follow these Australian cases. The first is Godbolt v. Fittock (1963) 63 S.R.(N.S.W.) 617. This was a case of two rustlers who were driving along in a truck with some stolen cattle. The driver fell asleep. The truck ran off the road. The passenger was injured. There was no question of pursuit in that case. Sugerman J., in the leading judgment, said, at p. 624:

‘In my opinion, when co-adventurers in a joint criminal venture of a nature comparable with that in question in the present appeal use a motor vehicle in the pursuit of their common purpose, damages are not recoverable by one, being a passenger, against another, being the driver, in respect of injuries suffered as a result of want of due care in driving on a journey which is directly connected with the execution of the criminal purpose. I use ‘directly’ in a relative rather than in any absolute, sense.

The question is one of the sufficiency of the connection to require a conclusion that it would be contrary to public policy that damages should be awarded for the injury or that the injury had its origin in a turpis causa. The directness of the connection between the criminal purpose and the journey in whose course the injury occurred, rather than a causal association of the injury with the specifically criminal character of the joint venture, is, in my opinion, the true criterion in these cases of mutual criminality. The latter - causal association is lacking in the present case. But the former is clearly present, the accident having occurred in the course of one continuous journey which included in uninterrupted sequence the stealing of the calves and their transportation to market.’

Mr. Crowe says that this is a very hard and harsh case, and asks me not to follow it.

The other Australian case is Smith v. Jenkins (1970) 44 A.L.J.R. 78. This is an appeal from the Supreme Court at Victoria to the High Court of Australia, with five judges, including, the Chief Justice. The case involved a driver driving a stolen car with a passenger being carried, the driver and passenger being involved in the joint enterprise of stealing, and the passenger was injured. Barwick C.J., in considering, that the action ought to be dismissed, said, at pp. 78-79:

‘The choice it seems to me is between a refusal of the law to erect a duty of care as between persons jointly participating in the performance of an act contrary to the provisions of a statute making their act a crime punishable by imprisonment and a refusal of the courts, upon grounds of public policy, to lend their assistance to the recovery of damages for breach in those circumstances of a duty of care owed by the one to the other, because of the criminally illegal nature of the act out of which the harm arose. I have come to the conclusion that the former is the proper basis. The duty of care, which is the prerequisite to success in an action of negligence to recover damages for personal injuries, is a duty which the law imposes upon a party by reason of his relationship to another in the circumstances of the case. No doubt considerations of public policy have their place in the decision in the particular case to impose or erect such a duty. But basically it is the relationship of the parties which gives rise to the duty. Here the respondent and the appellant, in my opinion, did not

relevantly stand in the relationship of passenger and driver. Their relationship was that of joint participants in the very act, itself unlawful in the sense I have mentioned, out of which the mischief to the respondent arose. In my opinion, the law will not hold that a duty of care arose out of that relationship.’

The second judgment is given by Kitto J. He referred to a decision of Scrutton L.J. and said, at p. 80:

‘... it seems equally clear that Scrutton L.J. perceived a general principle of law and thought it apposite to his illustration, namely that persons who join in committing an illegal act which they know to be unlawful (or, I should add in the language of the judgment in Adamson v. Jarvis (1827) 4 Bing. 66, 73, which they must be presumed to know to be unlawful) have no legal rights inter se by reason of their respective participations in that act. In my opinion that is the principle that governs the present case. The underlying reason of it, I think, is that in such a case the law regards the joint illegal conduct as the commission of a single wrong of which, as a whole, each participant is guilty.’

The third judgment was given by Windeyer J., and is of considerable length, and contains a valuable discussion on the application of the maxim ex turpi causa. He says, at p. 85:

‘The question here is not, Is the plaintiff precluded from recovering because he was a wrong-doer? It is, Had the defendant a duty to the plaintiff to carry out carefully the unlawful enterprise on which they were jointly engaged? The problem is circumscribed by the facts. It is not a wide-ranging general question of the bearing that unlawful conduct has on liability in tort. It is whether when two persons are jointly engaged in a particular criminal enterprise - unlawfully taking or using a motor car - one can sue the other because he has been negligent in the course of carrying out his part in their unlawful undertaking.’ He continues, at p. 86: ‘It seems to me a mistake to approach the case by asking whether the plaintiff is precluded by considerations of public policy from asserting a right of action for negligence. The proper inquiry seems to me to be simply is there for him a right of action. That depends upon whether in the circumstances the law imposed a duty of care; for a right of action and

a duty of care are inseparable. The one predicates the other. Duty here does not mean an abstract and general rule of conduct. It is not the duty to God and neighbour of the catechist’s question. It is a concept of the law, a duty to a person, which he can enforce by remedy at law. Lord Atkin’s famous generalisations need some qualifications and require some exceptions. For instance, negligent misstatements are now actionable, but the duty of care in that field depends, it has been held, not simply on foreseeability of harm but on a special relationship between the parties. If a special relationship be in some cases a prerequisite of a duty of care, it seems to me that in other cases a special relationship can exclude a duty of care. It is as well to remember, when Donoghue v. Stevenson is invoked, that Lord Atkin there said: ‘ But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy.’ I add to that two sentences from Salmond on Torts, 15th ed. (1969), p. 257, which I think correctly reflect the present state of the law: ‘The courts are still free to hold that the plaintiff’s interests are not in all the circumstances of the case entitled to be protected against the defendant’s conduct. For reasons of policy there are limits to the actions of negligence.’ The appellant and the respondent were companions in crime. Were they ‘neighbours’ in Lord Atkin’s sense? Put in that way the question is: Was the one under a duty, enforceable at law, to take care not to harm the other? I prefer to ask was there a right then to ask whether public policy has intervened to deprive the would-be plaintiff of a remedy.’

Windeyer J. also said, at pp. 87-88:

‘It may be accepted that whether an action for negligence can be brought by one criminal against another depends upon whether the negligence was so related to their unlawful conduct that the tort can be said to arise out of the crime - but only in a general sense, not in the special causal sense that the peculiar phrase ‘an accident arising out of and in the course of employment’ has gained by the cartload of cases under workmen’s compensation statutes. The question is whether the harm arose from the manner in which the criminal act was done. That question is not one of cause and consequence which can be answered in the old jargon of

scholastic logic. Rather it is one of connection and relationship and involvement. For that the modern jargon of remoteness and proximity is more useful. At one end of the scale are cases when the same facts constitute both a crime and the tort. This is not that case. At the other end of the scale are cases when the tort is not related except in point of time to the crime. This is not that case. Here the harm done was not remote from the carrying out of the illegal enterprise. It resulted from the careless manner in which the defendant carried out his part in it. Lord Lyndhurst expressed basic doctrine when, speaking as Chief Baron, he said in Colburn v. Patmore (1834) 1 Cromp., M. & R. 73, 83: ‘I know of no case in which a person who has committed an act, declared by the law to be criminal, has been permitted to recover compensation against a person who has acted jointly with him in the commission of the crime. It is not necessary to give any opinion upon this point; but I may say, that I entertain little doubt that a person who is declared by the law to be guilty of a crime cannot be allowed to recover damages against another who has participated in its commission.’ That doctrine, given more particularity for the present case, can I think be formulated as a rule as follows: If two or more persons participate in the commission of a crime, each takes the risk of the negligence of the other or others in the actual performance of the criminal act. That formulation can be regarded as founded on the negation of duty, or on some extension of the rule volenti non fit injuria, or simply on the refusal of the courts to aid wrongdoers.’

The fourth judgment was given by Owen J., and he said, at p. 89:

‘... that the law does not recognise the relationship between two criminals who are jointly engaged in carrying out a criminal venture as being one which gives rise to a duty of care owed by the one to the other in the execution of the crime.’

His conclusion is expressed in these words:

‘The answer to the plaintiff’s claim is, I think, that the law does not recognise that those who are taking part in a joint criminal venture are ‘neighbours’ ...’

The last judgment was given by Walsh J. He said, at p. 92:

‘I have come to the conclusion that upon the facts found by the learned trial judge the respondent had no right of action in negligence against the appellant. I think that the rule to which I have referred applies to those facts to produce that result. The relationship of the parties and the act of which the respondent complains were such that no right of action based upon the manner in which that act was performed could arise.’ Later he says: ‘In my opinion, no right of action in negligence is given by the law in respect of the carrying out by one of the participants in a joint criminal enterprise of the particular criminal act in the commission of which they are engaged.’

I found the Australian authorities which I have quoted of considerable assistance in coming to a decision. The conclusion I have come to is that the law of England may in certain circumstances not recognise the existence of a duty of care owed by one participant in a crime to another participant in the same crime, in relation to an act done in connection with the commission of that crime. That law is based on public policy, and the application of the law depends on a consideration of all the facts. Having regard to all the facts in this case I have come to the conclusion that a duty of care did not exist between the first defendant and the plaintiff during the course of the burglary and during the course of the subsequent flight in the get-away car.

If I am wrong about the lack of a duty of care, I have to go on to consider the question whether the doctrine volenti non fit injuria could apply to this case. The point of departure is Dann v. Hamilton [1939] 1 K.B. 509. A passenger in the car was injured in an accident caused by the drunkenness of the driver. The passenger knew the driver might have been drinking. It was held that the maxim did not apply in that case. The way it was put by Asquith J. was as follows, at p. 518:

‘... the plaintiff, by embarking in the car, or re-entering it, with knowledge that through drink the driver had materially reduced his capacity for driving safely, did not impliedly consent to, or absolve the driver from liability for any subsequent negligence on his part whereby she might suffer harm. There may be cases in which the drunkenness of the driver at the material time is so extreme and so glaring that to accept a

lift from him is like engaging in an intrinsically and obviously dangerous occupation, inter-meddling with an unexploded bomb or walking on the edge of an unfenced cliff. It is not necessary to decide whether in such a case the maxim ‘volenti non fit injuria’ would apply, for in the present case I find as a fact that the driver’s degree of intoxication fell short of this degree.’

It is said in the present case that the drunkenness was extreme. It is said and conceded that the concentration of alcohol in the blood was 138 milligrammes. It is also said that two burglars flying from arrest in a get- away car are engaging in an intrinsically and obviously dangerous occupation.The next case is Slater v. Clay Cross Co. Ltd. [1956] 2 Q.B. 264, where Denning L.J., in relation to the judgment that I have just dealt with of Asquith J. in Dann v. Hamilton said, at pp. 270-271:

‘In so far as he decided that the doctrine of volenti did not apply, I think the decision was quite correct. In so far as he suggested that the plea of contributory negligence might have been available, I agree with him.’

The next case is Nettleship v. Weston [1971] 2 Q.B. 691. This was a case of a driver giving instruction to a learner driver, and Lord Denning M.R. said, at p. 701:

‘This brings me to the defence of volenti non fit injuria. Does it apply to the instructor? In former times this defence was used almost as an alternative defence to contributory negligence. Either defence defeated the action. Now that contributory negligence is not a complete defence, but only a ground for reducing the damages, the defence of volenti non fit injuria has been closely considered, and, in consequence, it has been severely limited. Knowledge of the risk of injury is not enough. Nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree, expressly or impliedly, to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant: ...’

Salmon L.J. draws attention to the question of drunkenness. He says, at p. 704:

‘The position, however, is totally different when, to the knowledge of the passenger, the driver is so drunk as to be incapable of driving safely. Quite apart from being negligent, a passenger who accepts a lift in such circumstances clearly cannot expect the driver to drive other than dangerously.’

Megaw L.J. says, at p. 710:

‘Different considerations may, indeed, exist when a passenger has accepted a lift from a driver whom the passenger knows to be likely, through drink or drugs, to drive unsafely. There may in such cases sometimes be an element of aiding and abetting a criminal offence; or, if the facts fall short of aiding and abetting, the passenger’s mere assent to benefit from the commission of a criminal offence may involve questions of turpis causa. With great respect, I doubt the correctness on its facts of the decision in Dann v. Hamilton. The present case involves no such problem.’

My attention was drawn to section 148 (3) of the Road Traffic Act 1972. I will not read the whole section, but the part with particular relevance: ‘... the fact that a person so carried has willingly accepted as his the risk of negligence on the part of the user shall not be treated as negativing any such liability of the user.’ The words ‘such liability’ have been repeated in an earlier part of that section and relate back to section 145of the Act which makes various requirements on a policy of insurance.

That section was considered by Kenneth Jones J. in Gregory v. Kelly [1978] R.T.R. 426, 430 and he says:

‘On the basis that the plaintiff did have knowledge of that defect in the Mini, Mr. Cooper on behalf of the defendant sought to raise the defence of volenti non fit injuria. I can deal with that very shortly because it is now agreed between counsel, as I understand it, and I certainly so judge that section 148 (3) of the Road Traffic Act 1972. has the effect of depriving the defendant of that defence.’

That decision was based on a concession by counsel. In this case, the

matter has been argued, the facts are entirely different and I do not find that section 148 (3) of itself deprives the second defendant of this defence.

In the first of the two Australian cases that I cited, Godbolt v. Fittock, 63 S.R. (N.S.W.) 617 , Sugerman J. dealing with that case (and I have already recited some of the facts in it) said, at p. 620:

‘... there is, in my opinion, no question of the application in the present case of volenti non fit injuria. It was not, for example, a case of driving at a dangerously high speed for some reason associated with the commission of the crime - to escape detection or arrest or as an incident of the criminal plan. There was no peculiar causal connection linking the accident with the criminal venture. The accident was attributable apparently to the dozing of a tired driver, and was such as was equally likely to have happened even had the journey been an innocent one and the load a consignment for marketing at Wingham of the parties’ own calves. Putting the matter in another way, what happened was outside the scope of any consent which could be taken as having been given by the plaintiff’s participation, ... different as the situation may have been, as regards volenti non fit injuria, had the collision occurred while, for example, the truck was travelling at a high speed to escape a pursuing police vehicle. Viewing the matter, as I have throughout this portion of the discussion, purely from the standpoint of voluntary assumption of risk, the risks assumed might well be regarded as including such reckless modes of driving as might be adopted in, for example, an endeavour to escape capture, but not a risk of a character so lacking in any special relationship to the criminal venture as that of the driver dozing at the wheel.’

In the circumstances of the present case of two burglars who had been drinking and were fleeing in a get-away car, I am of the view that the maxim can apply and, if I were wrong on the first point of my judgment, the maxim would apply and the defendants would be entitled to judgment on that ground.

If I am wrong on both of these points, I have to consider the question of contributory negligence. It has been agreed that the plaintiff is 15 per

cent. to blame for his injuries as a result of not wearing his seat belt. I have been referred to Owens v. Brimmell [1977] Q.B. 859, a case before Watkins J., where the passenger and the driver had been drinking, and the judge said, at p. 867:

‘I think this is a clear case on the facts of contributory negligence either on the basis that the minds of the plaintiff and the defendant, behaving recklessly, were equally befuddled by drink so as to rid them of clear thought and perception, or, as seems less likely, the plaintiff remained able to, and should have if he actually did not, foresee the risk of being hurt by riding with the defendant as passenger. In such a case as this the degree of blameworthiness is not, in my opinion, equal. The driver, who alone controls the car and has it in him, therefore, to do, whilst in drink, great damage, must bear by far the greater responsibility. I, therefore, adjudge the plaintiff’s fault to be of the degree of 20 per cent.’

However, in the present case, looking at the whole of the facts, and the fact that this was a get-away car, which might have to be driven recklessly and dangerously, and the fact that the plaintiff was not wearing a seat belt, I conclude that these two, the driver and the passenger - were equally to blame for the accident, and if I had to assess the degree of contributory negligence I would set it at 50 per cent.