McGILL LAW JOURNAL
Volume 18
Montreal
1972
Number ‘
The Wrongdoing Plaintiff
G. H. L. Fridman *
I THE PROBLEM AND SOME POSSIBLE SOLUTIONS ……………………..
276
II ASSIMILATION WITH SOME SPECIAL DEFENCES ……………………….
a. Contributory Negligence ……………………………………………………………………….
b . V olenti ……………………………………………………………………………………………………..
c. C ausation ………………………………………………………………………………………………..
III DEFENCES OF A BROADER NATURE ………………………………………………..
a. Ex turpi causa ……………………………………………………………………………………….
b. Public Policy …………………………………………………………………………………………..
c. A Question of Duty? …………………………………………………………………………….
277
277
279
281
288
289
296
300
IV COMPROMISE AND RESOLUTION ……………………………………………………….
304
-M.A., B.C.L., LL.M., Dean of the Faculty of Law, University of Alberta.
McGILL LAW JOURNAL
[Vol. 18
I. The Problem and Some Possible Solutions
The effect of the plaintiff’s illegality upon his rights of action in
respect of harm suffered by him while acting illegally has been
described as “a rather obscure corner of the law”.’ One Canadian
judge required “authority of the clearest kind.., before concluding
that the mere fact that the conduct of a party to a civil action was
wrongful as being in violation of the Criminal Code or a penal act
constitutes a defence”.2 It would appear from a consideration of the
many Canadian, English, Australian and American cases in which
this issue has been raised that there is uncertainty about the rel-
evance of such conduct as well as about the juridical nature of its
effect if and when it should be relevant. My purpose in this essay is
to examine what has been said about this in an attempt to identify
the various issues that can arise and suggest how they may be
resolved in a consistent and satisfactory manner. What is interesting
is that so complex a question, legally speaking, can emerge from
what may be a very simple and straightforward set of facts. For
example, suppose that the ginger beer bottle in Donoghue v. Steven-
son 3 had not been purchased and then given to the unfortunate
plaintiff, but had been stolen by the plaintiff herself and then drunk
with the consequences so well-known to every law student: would
the theft of the bottle have affected the rights of the plaintiff? At
first sight this seems to be an easily soluble conundrum. When the
matter is considered in more depth, however, it can be appreciated
that it gives rise to some difficult questions of legal policy, if not,
indeed, some complicated questions of a more conceptual kind.
In the first place it might be argued that the conduct of the
plaintiff should be legally relevant by virtue of the fact that it might
constitute contributory negligence on his part, thereby reducing,
perhaps even destroying his claim for damages. Secondly, it could
be said that the conduct of the plaintiff is tantamount to an accep-
tance by him of the risk of being injured by the defendant: volenti
non fit injuria. Thirdly, whether or not the act of the plaintiff is a
tort against the defendant or some third party, as well as being a
crime of some kind, his act might be causally irrelevant, in a legal
sense, to the harm the plaintiff suffered, albeit that it is causally
I Salmond on the Law of Torts, (15th ed., London, 1969), at p. 678.
2 Foster v. Morton, (1956), 4 D.L.R. (2d) 269, at p. 281 per MacDonald, J.
3 [1932] A.C. 562.
No. 3]
THE WRONGDOING PLAINTIFF
relevant in an historical or physical sense. Any of these approaches
would enable a court to deal with a problem of this kind without
necessitating the adoption of some special principle, simply demand-
ing the application of well-established ideas to a slightly novel
situation. However, there are other possibilities that do invite a
court to discuss and utilise broader concepts which might not else
apply. Thus, it could be said that the illegality of the plaintiff’s
actions at the material time was a factor to be taken into account
in determining whether or not a duty was owed to him by the
defendant (at least where the plaintiff’s cause of action, if any, is in
negligence). Then there is the possibility that the plaintiff should
be refused a remedy on the ground that the basis of his claim is
“turpis causa”, thereby entitling the court to invoke the maxim
ex turpi causa non oritur actio. Or, by way of a wider application of
the same notion, public policy might be invoked to withhold a
remedy where to grant one would be to condone the commission of
some illegal act by the plaintiff, at least to the extent of recognising
his right to damages despite his own wrongdoing. All these possibil-
ities have been raised, discussed, and from time to time, employed
in the cases. Which is correct? Or, to put the query in a more accept-
able way, which of these provides a satisfactory basis for coming
to a decision in any individual case? In either formulation the
question is not easy to answer. Indeed it is not surprising that the
whole question has sometimes been said to be immaterial. That
does not make inquiry inappropriate. Quite the contrary.
II. Assimilation with Some Special Defences
a. Contributory Negligence
The defences of contributory negligence, voluntary assumption
of risk, and lack of causal connection, are very much intertwined
in the modern law of torts. In numerous cases courts have adverted
to the relation between the factors that must be taken into account
if any one of these three defences, or limitations upon a liability that
would otherwise arise, is to be considered as affecting the situation
of the defendant. It is easy to see why a court would feel attracted
to resolving the issue of the plaintiff’s illegality in terms of contrib-
utory negligence, assumption of risk, or lack of causation. How
simple to state that the real cause of the plaintiff’s harm was his
own improper conduct, for which not only might he suffer criminally
but also, in the sense that it detracts completely or partially from
his claim, in respect of his civil remedy against the defendant. For
McGILL LAW JOURNAL
[Vol. 18
example, in several cases in England, concerned with the effect of
a breach by a plaintiff, an employee, of statutory regulations design-
ed to ensure his protection while at work, such breach being a
criminal offence, the courts said that the plaintiff’s conduct, in
breach of such regulations, was relevant in the sense that it qualified
as contributory negligence, so leading to an apportionment of the
damages under appropriate legislation. In one of these cases 4 Cohen,
L.J. adverted to the policy of the legislation on factories which made
it plain that while the conduct of the plaintiff might be relevant in
terms of an available defence of contributory negligence, it was not
to be taken to the extreme of making any action at all unavailable
to the delinquent employee. While the same reluctance was not to
be found in the judgment in a later decision (where, however, the
plaintiff’s contributory negligence virtually disqualified him from
any claim, as it turned out),5 the better view in such instances, i.e.,
where legislation to protect employees is concerned, would seem
to be that only in terms of possible contributory negligence is effect
to be given to such conduct by the plaintiff. As Latham, C.i. of the
High Court of Australia pointed out in Henwood v. Municipal Tram-
ways Trust 0 as long ago as 1938, “… there is no general principle of
English law that a person who is engaged on some unlawful act is
disabled from complaining of injury done to him by other persons
either deliberately or accidentally. He does not become caput
lupinum.” In that case, which must rank as one of the leading
decisions in this particular area of the law of tort, the High Court
held that the conduct of the plaintiff in sticking his head out of the
window of a tram in breach of a by-law promulgated by the defen-
dants was material to, but not conclusive of the issue of contributory
negligence when the result of this was that the plaintiff was struck
and killed. Many other points were made in the course of the
judgments delivered by the various members of the court, and
reference thereto will be made from time to time in the present
essay: but the central feature of this case is the extent to which the
court emphasised that what was involved was a causation question,
notably from the point of view of contributory negligence (which
at that time had the effect of barring the plaintiff’s remedy if it was
established –
a situation which has changed in Australia as it has
4 Cakebread v. Hopping Bros. (Whetstone) Ltd., [1947] K.B. 641, at p. 654.
6Johnson v. Croggan & Co. Ltd., [1954] 1 W.L.R. 195, with which contrast
Charles v. S. Smith & Sons (England) Ltd., [1954] 1 W.L.R. 451, at p. 456,
per Hilbery, J. See also Williams v. Port of Liverpool Stevedoring Co. Ltd.,
[1956] 1 W.L.R. 551.
0 (1938) 60 Comm. L.R. 438, at p. 446.
No. 3]
THE WRONGDOING PLAINTIFF
done in England and Canada). It is interesting to note that as
recently as 1970 a Canadian court, in Manitoba, was able to deal
with a case raising the issue of the plaintiff’s alleged participation
in illegality (namely the defendant’s driving a vehicle without a
licence), by invoking the doctrine of contributory negligence, so as
to hold the plaintiff 50 per cent to blame for his own injury.7 It
would seem that, possibly to avoid having to come to grips with the
more difficult and substantial issue, it is open to a court to qualify
the plaintiff’s claim by means of the plea of contributory negligence.
b. Volenti
An alternative, indeed stronger barrier to the plaintiff’s success
in cases where the moral worth, as it were, of the plaintiff’s claim
may be doubted, even though its legal strength is not otherwise open
to question, is the plea of voluntary assumption of risk. This was
one, and a very important ground upon which the court in the
famous, and troublesome case of Hegarty v. Shine 8 decided against
the plaintiff. She was infected by venereal disease when she had
intercourse with the defendant, to whom she was not married. When
she sued in trespass, alleging that the defendant had fraudulently
concealed his physical state from her, thereby making the consensual
intercourse into a trespassory act, the defendant was successful in
maintaining that no action would lie, despite the concealment, since
the plaintiff’s conduct was entirely voluntary. Coming to more
modern times, and somewhat different circumstances, Canadian
courts have been willing to apply the maxim volenti non fit injuria
to cases where the plaintiff was injured when being driven by a
drunken driver and the plaintiff himself was a willing party to an
evening of drinking and driving.9 But it is only correct to point out
that Canadian courts have not been prepared always to say that
participation with knowledge in the performance of illegal acts by
the defendant driver makes the plaintiff volens to the possibility
of injury so as to deprive him of a remedy if and when he is hurt
in consequence of the particular disability of the defendant which
constitutes negligence (or indeed gross negligence where such is
necessary). There would seem to be some hesitancy on the part of
Canadian courts when it comes to finding and holding that the
7 Rodrigue v. Penner, (1970), 74 W.W.R. 96.
8 (1878) L.R. 2 Ir. 273; L.R. 4 Ir. 288.
9Car & General Insurance Corp. Ltd. v. Seymour and Maloney, [1956]
S.C.R. 322; Miller v. Decker, [1957] S.C.R. 624; Lehnert v. Stein, [1963] S.C.R.
38; Conrad v. Crawford, (1972), 22 D.L.R. (3d) 386.
McGILL LAW JOURNAL
[Vol. 18
acceptance of a ride in such circumstances of itself makes the
plaintiff a volunteer for this purpose. Referring to the decision of
the Supreme Court of Canada in Lehnert v. Stein,”‘ which followed
and supported earlier Supreme Court decisions, Guy, J.A. of the
Court of Appeal of Manitoba” said that it appeared to make the
defence of volens well nigh impossible to sustain from a practical
standpoint. This statement was quoted, and presumably approved
more recently by Matas, J. of Manitoba in a case in which volenti
was rejected, while contributory negligence was accepted, as a
ground for limiting the plaintiff’s remedy in a situation involving
participation in a criminal offence. 2 Some suggestion that the plea
of volenti could be raised in such a case can be found in the judg-
ment of Adam, J. of the Supreme Court of Victoria in Boeyen V.
Kydd.13 But the joint criminal venture of the plaintiff and the defen-
dant in that case (which was the illegal use of the car which the
defendant drove negligently thereby causing a collision in which the
plaintiff was injured) did not provide the defendant with a defence
to the plaintiff’s negligence suit, for reasons which will later emerge.
On the other hand the House of Lords in Imperial Chemical Co. V.
Shatwell 14 treated the breach of statutory regulation by the plaintiff,
which was a criminal offence on his part, as constituting an assump-
tion of risk by him, thereby preventing him from maintaining an
action when the result of his, and his brother’s conduct was an
explosion in which they were both injured. Their Lordships seem
to have dealt with the issue of liability entirely from the standpoint
of causation without considering the wider question of the plaintiff’s
illegality as constituting a potential reason for denying any recovery,
much as in Lane v. Holloway 15 where the Court of Appeal tackled
the problem of provocation as affecting damages for assault on the
basis of voluntary assumption of risk or consent, and contributory
negligence, and not in any way as dependent upon the possible
criminality of the plaintiff’s own conduct, in that he assaulted the
defendant, indeed assaulted him first. There, however, reliance was
placed upon the relative strengths and ages of the parties in order
to establish the incongruity of depriving the plaintiff of a remedy
because of his acts, when the defendant’s retaliation was fiercer,
1oop. cit., n. 9.
11 In Rondos v. Wavrin, (1968), 64 W.W.R. 690, at p. 695.
12Rodrigue v. Penner, op. cit., n. 7, at p. 104. And see an Ontario case,
Tomlinson v. Harrison, (1972), 24 D.L.R. (3rd) 26.
13 [1963] V.R. 235, at p. 237.
14 [1965] A.C. 656.
15 [1968] 1 Q.B. 379.
No. 3]
THE WRONGDOING PLAINTIFF
more violent, and far more effective and damaging physically than
the plaintiff’s original attack.
This melange of cases, from different jurisdictions, if it estab-
lishes anything, establishes the improbability of the plea of volenti
being a satisfactory way of dealing with this particular problem, at
least advertently. If the deeper issue of the relevance or importance
of the plaintiff’s own illegality is forgotten, concealed, or submerged,
for whatever reason, whether it be, as Cohen, L.J. put it, that the
policy of the statutes out of which the right of action arose made it
necessary to put such considerations out of mind, or that some
other, possibly sentimental urge to ignore what the plaintiff himself
had done, in comparison with the seriousness of the defendant’s
conduct vis-h-vis the plaintiff, operated upon the court to such end,
then it is possible to determine the exact scope of the defendant’s
liability by reference to the more limited notion of assumption of
risk, bearing in mind that, in modern times, there has been consid-
erable reluctance to use that notion widely. The illegality of the
plaintiff may not be as easily overlooked as the alleged voluntary
nature of his conduct. The policy of the law may demand that illegal
conduct be met with retribution, or at least recognition, when the
plaintiff seeks a remedy from the defendant. There is less com-
pulsion upon a court to take notice of, and give effect to what the
defendant says is an assumption of risk by the plaintiff, unless out
of the plaintiff’s conduct there can be spelled, expressly or by im-
plication, some agreement to the prospect of harm to the plaintiff
from what the defendant is doing, or is proposing to do.
c. Causation
Refuge might be taken in the doctrine of causation as a source
of possible solutions for such problems. Or, rather, in a somewhat
specialised doctrine of causation refined for the purposes of this
particular type of situation. This was the approach favoured by
Australian courts, at least until the most recent case of Smith v.
Jenkins.”6 It has also been propounded by courts in the United
States,’17 where there has been significant development from the
days when illegality by the plaintiff virtually automatically disbarred
16 (1970), 119 Commw. L.R. 397.
17For some illustrative cases see: Grapico Bottling Co. v. Ennis, 106 So. 97
(Miss. 1925); Johnson v. Boston & Mass. R.R., 143 Atl. 576 (N.H. 1928);
Meador v. Hotel Grover, 9 So. 783 (Miss. 1942); Holcomb v. Meeds, 246 P.
2d 239 (Kans. 1952); Havis v. lacovetto, 250 P. 2d 129 (Colo. 1952); Manning
v. Noa, 345 Mich. 130 (1956).
McGILL LAW JOURNAL
[Vol. 18
him from any action in respect of injuries incurred by him while
perpetrating the illegality in question (such as driving a car on a
Sunday in breach of statutes which prohibited such activity). 18
There is also some Canadian authority for such an approach, 0
though the validity of such authority in view of modern develop-
ments is open to question at the present time. Two basic ideas or
distinctions have emerged in this regard. The first is the difference
between illegal conduct which simply precedes the wrongful and
injurious conduct of the defendant and, as it were, has resulted in
the plaintiff’s being placed in a situation in which the former’s acts
could cause the latter injury; and illegal conduct which effectively
operates to help bring about the plaintiff’s harm. The second is
between illegality, especially illegality under statute, the commis-
sion of which it is the policy of the law, viz., the statute, should
result in the deprivation of civil rights as well as the imposition
of criminal responsibility or liability: and illegality which is effec-
tive only for the purposes of the criminal law and not otherwise.
These matters require clarification and amplification.
As to the first, Lord Asquith of Bishopstone expressed the
dichotomy succinctly in National Coal Board v. England 20 when
he said:
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… at least be a step in the execution of the common illegal
purpose [italics added].
Then he gave his famous hypothetical examples of the two burglars
and the possible injuries which one might inflict upon the other
with consequent differences in respect of the concomitant liabil-
ities. 2’ This statement was picked up in one of the earliest of the
Is Davis, The Plaintiff’s Illegal Act as a Defence in Actions of Tort, (1904),
18 Harv. L. Rev. 505; cf. Glanville Williams, Joint Torts and Contributory
Negligence, (1951), at p. 333.
19 See: Cronkite, Effect of the Violation of a Statute by the Plaintiff in a
Tort Action, (1929), 7 Can. Bar. Rev. 67.
20 [1954] A.C. 403, at p. 428.
21 Ibid., at p. 429:
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 therein, B picks
A’s pocket and steals his watch, I cannot prevail upon myself to believe
that A could not sue in tort… The theft is totally unconnected with
the burglary.
No. 3]
THE WRONGDOING PLAINTIFF
more modern Australian cases, Sullivan v. Sullivan,22 in which the
question was whether a special defence could be filed setting out
that the plaintiff and defendant at the material time were engaged
upon using the motor car negligently driven by the defendant in
the commission of a crime. In holding that such defence could be
raised, Amsberg, D.C.J. pointed to the need to show that there was
“a definite and plain causal connexion between the criminal and
illegal act and the negligence which would be… alleged and com-
plained of”2 3 In the case before him it was alleged that the driving
of the motor car in question was a step in the execution of the
common illegal purpose. If this could be established by proof, then
it would afford a good defence. But it was necessary to establish
the requisite causal connexion, a proposition which was clearly
founded upon what had been said in Australia, even earlier than by
Lord Asquith, in the Henwood case. As Adam, J. said in Boeyen v.
Kidd,)2 4 “It may happen that the illegal conduct on the part of the
plaintiff is in substance the real cause of his own damage and then
on general principles that plaintiff could not recover from any other
party”. The learned judge then went on to consider some other
situations in which, given the requisite element of causation, the
illegal conduct of the plaintiff would bar his action on other grounds
or for other reasons, e.g., on the basis of the volenti principle. But
he clearly recognised that, without more, lack of causation, so far
as the defendant’s acts were concerned, would be a material ground
for holding the defendant not liable.
Some doubt as to the relevance of causation as a basis for
differentiation was expressed by Walsh, J. of the Supreme Court of
New South Wales in Andrews v. Nominal Defendant.25 However, the
learned judge also pointed out that at the very least before the
plaintiff’s illegality could be regarded as affecting in any way his
possible rights of action, it had to be shown that there was a causal
relationship of a direct kind between the illegal act and the injury:
and this was not satisfied by showing that such illegal act created
”a passive antecedent condition” upon which the defendant’s act
operated. A more detailed analysis is to be found in the judgment
of Jacobs, S.A. in the later New South Wales case of Bondarenko v.
Sommers.28 The plaintiff and defendant were involved in unlawfully
22 (1961), 79 W.N. (N.S.W.) 615.
23Ibid., at p. 618.
24 [1963] V.R. 235, at p. 237.
25 (1965), 66 S.R. (N.S.W.) 85, at pp. 94-95.
26 (1967), 69 S.R. (N.S.W.) 269.
McGILL LAW JOURNAL
[Vol. 18
taking a third person’s car, which was subsequently raced against
another car, as a result of which there was an accident in which the
plaintiff was injured. At the trial the judge directed the jury that
if a number of persons were jointly engaged in the theft of a car
and one of their purposes was that they would race that car against
another car on a public street, then, if one of them was injured in an
accident arising in such a race, he could not recover against any of
the others. It was held that this direction was correct, because the
stealing of the car, i.e., the unlawful taking and using of it, included
the act alleged to have been done negligently, viz., using the stolen
car. Jacobs, J.A.27 referred to the need for a relation between the
criminal act and the act of negligence complained of. This relation-
ship he preferred to put not in terms of causation but in terms of
a relationship between the plaintiff and the defendant in the crim-
inal enterprise. “It is in this way”, he said,28 “that the joint criminal
enterprise comes to be considered.”
The learned judge then discussed what in effect was the differ-
ence between causation, strictly speaking, as a ground for refusing
the plaintiff a remedy, and causation in the sense of the joint
criminal enterprise as providing a bar to recovery. He referred to
the argument of counsel for the plaintiff, relying upon the judgment
of Walsh, J. in the Andrews case, that for a plea of illegality to
succeed, the illegality of the plaintiff must be directly related to
the tortious act complained of, in the sense that the tort would not
have occurred if the plaintiff’s act had not been illegal. This
approach Jacobs, J.A. thought was too narrow, and too limiting. In
many cases it might be appropriate: but it was not exhaustive of
the effect in tort of illegality. Despite this argument, however, the
learned judge stated that:
the existence of the joint criminal enterprise in respect of the very act
of which the plaintiff complains as having been done negligently seems
to me to lie at the foundation of the present defence.20
Subsequent language indicates that the judge had in mind the
second differentiation already referred to, namely, that between
criminal conduct within the purview of the statute as affecting
civil rights and such conduct which is intended only to regulate
criminal liability. Before considering this matter in greater detail,
however, reference must be made to two later cases in which cau-
sation, per se, has been discussed.
27 Ibid., at p. 275.
28 Ibid., at p. 276.
29 Ibid., at p. 277.
No. 3]
THE WRONGDOING PLAINTIFF
In one, Mills v. Baitis,30 which raised a novel point with respect
to measure of damages rather than basic liability for tort, Gowans, 1.
said at one point: 31
The public interest is not concerned to relieve the defendant wrongdoer.
It directs its concern to the question of the deprivation of the plaintiff
wrongdoer. Where the plaintiff’s wrongdoing has had no causal connexion
with the defendant’s wrongdoing which has caused the damage, it is
less probable that the purpose of the law will be to treat the plaintiff’s
wrongdoing as affecting the plaintiff’s relief than where there has been
a causal connexion.
The emphasis in that case, in part at any rate, was upon the neces-
sary connexion between the illegality of the plaintiff and his
eventual harm or loss at the hands of the defendant. Finally, how-
ever, in the recent decision in Smith v. Jenkins, 2 Windeyer, J. was
very critical of the language of Australian, and American courts
which stressed the importance of cause or causation in this context.
To allow the question of liability or not to be answered in such
terms meant that the question was “bogged down in phrases about
causal relations, ‘proximate cause’, ‘causa causans’, ‘causa sine qua
non’, ‘novus actus’ “.3 The discussion about cause and the con-
clusion with respect to something being a ‘sine qua non’ might be
relevant and inevitable if the whole test of the bearing which crim-
inal conduct had on tortious liability was a purely causal relation-
ship. But was that the right test? Windeyer, J. certainly thought it
was not.2 4
To some extent the learned judge was being unfair to earlier
discussions of this topic. As already indicated, the issue of causation
has sometimes been considered not as it were in the abstract, in
other words, purely and simply in terms of whether the illegal act
caused the harm to the plaintiff in any, or in any substantial degree,
but in terms of the causal relevance of the legislation, where a
statutory offence was involved, the breach of which constituted the
specific illegality of the plaintiff. Just as, when an action is brought
for damages in respect of an injury suffered through the defendant’s
breach of a statutory duty which involves the commission of an
offence, the issue for the court is whether the statutory provision
can be interpreted to give rise to civil liability, which depends upon
the scope of the provision and the purpose intended thereby, so, in
30 [1968] V.R. 583.
31 Ibid., at pp. 590-591.
32 op. cit., n. 16.
33 Ibid., at p. 420.
34Ibid., at p. 421.
McGILL LAW JOURNAL
[Vol. 18
this context, reference has been made to the need for establishing
that the statutory provision breached by the plaintiff was intended
to do more than create a criminal offence. It was necessary to show
that the purpose of the statute would be foiled if its breach were
ignored in determining the question of the availability of a remedy
to the plaintiff. This approach is illustrated very fully in the judg-
ments delivered by the High Court of Australia in the Henwood
case. 5 Thus Starke, J., speaking of the by-law in that case said: s1
The manifest purpose of the by-law is to prohibit acts that are or are
regarded as dangerous or careless acts on the part of passengers. It is
a punitive provision… Nor does it, in express words, deprive passengers
of their civil rights against the trust in case of a breach of its duty
to exercise care and forethought for securing their safety. All that can
be inferred from the terms of the by-law is that it prohibits certain
acts and provides a specific penalty.
Dixon and McTiernan, JJ. concluded their discussion of this problem
by stating 37 that:
unless
the statute so intends, no penal provision should receive an
operation which deprives a person offending against it of a private right
of action which in the absence of such a statutory provision would
accrue to him.
In considering what the effect or purpose of any such statute was
the learned judges thought 3′ that possibly “the court should pursue
the methods of interpretation which have been followed in some
of the decided cases where an intention has been found in a penal
statutory provision to give a private remedy in damages for breach
the converse case as Starke, J. called it.0 9
of the duty it imposes” –
The same approach, inter alia, was adopted by Walsh, J. in Andrews
v. Nominal Defendant,40 in which it was said that there was no
general rule that a person suing upon a statutory cause of action is
disqualified by his own breach of it, even where there is a direct
causal connection between the act constituting the breach and the
injury. “It all depends upon what is taken to have been intended
by the statute”. And again: “The question is whether it is part of
the purpose of the law against which the plaintiff has offended to
deprive him of his civil remedy”. The answer in the instant case
was that it was not: hence that plea by the defendant could not be
35 Op. cit., n. 6.
36 Ibid., at p. 453.
37 Ibid., at p. 461.
38 Ibid., at p. 463.
3o Ibid., at p. 452.
40 Op. cit., n. 25, at p. 93.
No. 3]
THE WRONGDOING PLAINTIFF
sustained. On the other hand in Bondarenko v. Sommers,41 the
legislation creating the criminal act showed no intention to preserve
civil rights in the circumstances. Therefore if the facts as proved at
the trial established the negligence which took place in the course
of commission of the illegal act upon which plaintiff and defendant
in that case were engaged, no cause of action would lie. Hence the
judge’s direction to the jury was upheld and the plaintiff’s appeal
failed.
This approach has sometimes been said to be based upon the
desire to spell out some policy with regard to depriving an other-
wise worthy plaintiff of his rights of action. But it could also be
said to involve the causation issue, in that the reason for investi-
gating the meaning and scope of the legislation infringed by the
plaintiff is to discover whether that infringement is causally relevant
in a legal, as well as a factual sense, much as the similar question
is raised whenever a plaintiff is suing for damages in respect of
some injury inflicted upon him as a consequence of a criminal
breach of statute by the defendant. As seen in such cases the issue
is one of remoteness of damage.42 Can, in law, the damage to the
plaintiff be traced to the wrongdoing of the defendant? So, here,
the question may be put: Should, as a matter of law, the damage
to the plaintiff be traced to his own, or the defendant’s wrongdoing?
One way of avoiding the niceties of an inquiry as to causation, which
troubled Windeyer, J. in the more recent case, is to look at the
construction of the statute in terms of its policy and intent, so that,
if it can be interpreted appropriately it can be used to deny the
plaintiff a remedy on such basis. But even then, I would suggest,
it would not be possible completely to ignore the causation aspects
of the inquiry.
A Canadian writer, over forty years ago, discussed this problem,
at least when it arose as a result of a plaintiff’s breach or violation
of a statute, along the same lines, even before the Henwood case 43
The purpose of that discussion was to show how Canadian cases had
adopted the same attitude as was later suggested by the Australian
decisions. More recent Canadian decisions indicate a change in
emphasis in this matter. There is greater discussion of the rights
and disabilities of the plaintiff on other grounds than that the
statute he has infringed deprives him of a remedy. The nature of
41 Op. cit., n. 26.
42 E.g. Gorris v. Scott, (1874) L.R. 9 Ex. 125; Grant v. N.C.B., [1956] A.C. 649;
Donaghey v. Boulton & Paul Ltd., [1968] A.C. 1.
43 Cronkite, op. cit., n. 19.
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those grounds will be considered in more detail later. For the
moment, however, it is sufficient to say that causation is not a
popular or accepted basis for differentiating between instances
when the issue arises. And, a fortiori, causation in terms of statutory
policy is even less favoured.
It would seem that the utility of any doctrine of causation, how-
ever formulated for the purpose of resolving this problem, is very
much in doubt. Apart from the difficulties inherent in the notion
of causation as it has been developed, to which reference was
validly made by Windeyer, J., there is the additional question of the
complexities of statutory interpretation in this context. Decisions
concerned with a plaintiff’s rights arising out of breach of some
statute reveal the difficulties inherent in any attempt to create civil
rights and liabilities out of criminal statutes. It does not seem
desirable to import those difficulties into another area or make
them occur with respect to an entirely different question. It has
been suggested that, in this respect, the question is really only
another way of putting the issue which otherwise occurs positively,
as it were, in a negative way, denying rather than engendering a
remedy. But are these questions exactly the same? In one the issue
is whether a remedy should exist alongside criminal sanctions.
Although this has been said to be a question of policy, in the light
of the general purport of the statute, might it not be better to regard
this as a strict matter of statutory construction? With regard to the
latter, i.e., the effect of the plaintiff’s wrongdoing or criminality,
perhaps the issue of policy is more in evidence, and should be
accepted and recognised as such without attempting to obfuscate
the decision that has to be made by a court by any attempt to
regulate it by the canons of construction or the principles of stat-
utory interpretation. Moreover, the problem of the effect of the
plaintiff’s wrongdoing is more widespread than cases where the
plaintiff is in breach of a statute. Admittedly most of the reported
cases concern such a breach. But it is possible for the problem to
arise in a non-statutory way. How useful, then, is an approach based
upon the interpretation of a statute? It would seem mors desirable
to treat this issue in a more general way.
III. Defences of a Broader Nature
This suggests that more fundamental questions are raised than
those already discussed. Instead of causation, assumption of risk,
and contributory negligence, perhaps a more satisfactory way of
arriving at a solution for problems of this nature would be along
No. 3]
THE WRONGDOING PLAINTIFF
the lines of an investigation of the propriety or otherwise of allow-
ing the plaintiff an action when his illegal conduct has been “instru-
mental”, to use a more neutral term, in bringing about his injury.
To pose the question in some such way is to meet head on the true
issue: namely, what ought to be the policy of the law with regard
to such cases? As will be seen, the courts have not been unwilling
to deal with such cases in this way. But they have not always been
entirely clear as to the precise ground upon which they should
proceed. Moreover, they have not always been able to state with
precision or clarity the true differentiation of deserving and unde-
serving claims by a wrongdoing plaintiff. It has earlier been sug-
gested that three main grounds have been put forward as providing
a method of resolution: these must now be considered.
a. Ex turpi causa
The first, perhaps historically the earliest to be propounded, and,
in one sense, the most obvious, is that the plaintiff must fail since
ex turpi causa non oritur actio. Indeed, as Glanville Williams explain.
ed twenty years ago,44 the notion that it is an effective riposte in
tort to show that the plaintiff was a wrongdoer has lingered on in
some cases aided by the oftrepeated maxims such as ex turpi causa.
The attraction of this doctrine in this context is not hard to find.
Close at hand, as it were, well-understood in the law of contract,
and having a superficial logic in its application, is the doctrine that
a plaintiff who has to found his case upon the commission of some
unlawful act on his part should lose in limine, irrespective of what-
ever merits his case otherwise might possess. This was the basis of
the court’s decision in Hegerty v. Shine, the venereal disease case.
It was also discussed, though its application was rejected, in another
fairly early case, Gordon v. Chief Commissioner of Metropolitan
Police.4
5 Money which was the product of illegal street betting was
seized by the police in a raid on certain premises. The plaintiff
claimed it from the Chief Commissioner. The latter sought to defend
liability by pleading ex turpi. It was held that this was inappropriate
in the circumstances. There was no illegal transaction on the basis
of which the plaintiff was seeking to substantiate his claim. He was
the owner of the money: and it was not necessary for the purpose
of determining his rights to it as against the defendant to discuss
how he had acquired such ownership, whether by illegal acts or
44 Williams, op. cit., n. 18.
45 [1910] 2 K.B. 1080.
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otherwise. The subject of the action must have been acquired
directly through the medium of a transaction which was prohibited
as illegal before the defence of ex turpi could apply.40 It is interesting
that in this case the plaintiff’s cause of action was related to the
recovery of property alleged to be unlawfully detained by the defen-
dant. It was not of the kind with which courts became more familiar
in recent times, namely, an action for personal injuries based on
the defendant’s negligence or breach of statutory duty. A distinction
could be made between the Gordon case and these more “usual”
ones, in that a claim for property raised more “absolute” questions
than an action for personal injuries. In the latter there may be
issues of policy based upon the application of the duty concept.
With respect to the former, it is only necessary to consider questions
of title, or at the very least, right to possession, or better claims to
possession. This could very well make a difference to the relevance
and application of any such maxim or doctrine as ex turpi causa.
Indeed it might be possible to go further and argue that there was
a difference in this respect between negligence/breach of statutory
duty cases on the one hand and all other kinds of torts, such as
trespass to the person, on the other. This would mean that cases
such as Hegerty v. Shine and those in which the issue has been
whether one person engaged in a fight, whether a prize-fight or a
mere brawl, was entitled to sue another in respect of injuries re-
ceived therein, could properly be held to invite the application of
the ex turpi doctrine, whereas, if negligence was in issue, other
considerations should apply. Certainly some of the text-book
writers 47 appear to have approached this question from the stand-
point of, or beginning with cases involving a fight of some kind, and
to have reasoned from these that participation in a criminal offence,
e.g., a fight, prevented recovery, or, in the case of Pollock” s that
wrongdoing on the part of the plaintiff did not as a general rule
of law prohibit recovery. In a modern case involving a fight, Lane
v. Holloway,49 the Court of Appeal rejected the application of ex turpi
(as well as the volenti maxim), where the plaintiff suffered severe
injuries in a fight which he had commenced with someone younger
and stronger than himself, on the ground that the defendant’s
reaction to the plaintiff’s “provocation” was quite inordinate. Hence
40 Ibid., at p. 1090 per Vaughan Williams, LJ.
47 Salmond, op. cit., n. 1, at pp. 678-679; Winfield and Jolowicz On Tort,
(9th ed., London, 1971), at p. 639: cp. 8th ed. 1967, at p. 748. See also:
Green v. Costello, [1961] N.Z.L.R. 1010.
48 Pollock’s Law of Torts, (15th ed., London, 1951), at p. 113.
49 Op. cit., n. 15: ef. Hartlen v. Chaddock, (1958), 11 D.L.R. (2d) 705.
No. 3]
THE WRONGDOING PLAINTIFF
the mere fact that the plaintiff himself was possibly guilty of a
criminal offence should not prevent any action or diminish his
claims. If this argument is acceptable, then perhaps the correct
approach is to say that sometimes the fact that the plaintiff is
engaged in an illegal activity, such as a fight, may well have an
effect upon his rights, possibly through the operation of some
such doctrine as ex turpi: whereas when negligence is in issue
different questions arise.
Thus, in Cakebread v. Hopping Bros. (Whetstone) LtdY0 in which
the plaintiff was suing in respect of a breach of statutory duty, the
defence was raised that the plaintiff was himself in breach of such
a duty in not using a proper guard on the machine. In this context
the court considered the application of the doctrine ex turpi causa.
Cohen, L.J. discussing this said that the maxim was based on public
policy: hence it seemed plain on the facts of the case before the
court that public policy, far from requiring that the action be dis-
missed, required that it should be entertained and decided on its
merits. The policy of the Factories Acts, which were involved in that
case, made it plain that such a defence would be inconsistent with
the intention of Parliament.” A similar point of view, in the same
kind of situation, was expressed by several members of the House
of Lords in National Coal Board v. England.52 In other words, where
what might be termed mutual breaches of statute by plaintiff and
defendant were concerned, and the action arose out of alleged
breaches of factories legislation, there was no scope for the oper-
ation of this doctrine. Could it be said that this was virtually the
same approach as that adopted by the High Court of Australia, for
instance, in the Henwood case? Or is this a separate point? If the
latter, then is it based upon an analysis of the ex turpi doctrine,
or is it more closely associated with the more general concept of
public policy of which more will be said later? In view of what was
said in the England case, notably by Lord Porter, as to the relevance
of the ex turpi doctrine in tort, it might be argued that the objection
to applying the maxim to the particular situation in cases like
Cakebread and England is not the same as that propounded in the
Henwood decision, but is founded upon judicial reluctance to extend
the juridical scope of the maxim ex turpi causa non oritur actio.
In this respect it is worth noting that in 1954, about the same time
5o [1947] K.B. 641.
51 Ibid., at p. 654.
52 [1954] A.C. 403, at pp. 419, per Lord Porter, 422 per Lord Oaksey, 424,
per Lord Reid, 428 per Lord Asquith of Bishopstone.
McGILL LAW JOURNAL
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as the England case, at least one English judge was still prepared
to apply the ex turpi doctrine to a breach of statutory duty case
similar to Cakebread: 5 but this was questioned the same year by
another judge of equal jurisdiction in a case which, as it happened,
did not require any decision on this point.54
In two Australian cases in the 1960’s there appears to have
been some reliance on the maxim to provide a ground or reason
for disposing of the argument that the plaintiff’s illegality deprived
him of a remedy. Amsberg, D.C.J. seems to have approved the
application of the maxim to a case of what he called “unilateral
turpis causa” in Sullivan v. Sullivan 5 On the other hand, in Andrews
v. Nominal Defendant,56 the Supreme Court of New South Wales
did not apply the doctrine to a case where the plaintiff’s wrong-
doing consisted of a failure to register or insure the vehicle the
negligent driving of which resulted in the plaintiff’s injuries.
Canadian authority seems to be equally divided on this issue,
In 1957 Abbott, J. of the Supreme Court of Canada expressed the
view r
that the maxim did not apply in a case in which the
plaintiff was injured while participating in an evening of drinking
while he and the defendant were out driving. The decision against
the plaintiff was based on other considerations, in particular the
notion of volenti. On the other hand, Hunt, J. of Manitoba r
applied the maxim to defeat a plaintiff whose claim arose out of
participation as a passenger in two cars being raced on the public
highway in breach of the law. In coming to this conclusion the
learned judge 59 relied heavily upon the following statement by
Adamson, C.J.M.: 60
Where two persons are engaged in a joint contravention and one is
injured by negligence of the other in the execution of the common
purpose the court will not enforce a claim by the injured person. Courts
do not exist for the purpose of assisting persons damnified in criminal
transactions.
O3 Johnson v. Croggan & Co. Ltd., [1954] 1 W.L.R. 195.
54Charles v. S. Smith & Sons (England) Ltd., [1954] 1 W.L.R. 451.
55 (1961), 79 W.N. (N.S.W.) 615, at p. 617.
56 (1965), 66 S.R. (N.S.W.) 85.
57 1n Miller v. Decker, [1957] S.C.R. 624, at p. 627.
58 In Ridgeway v. Hilhorst, (1967), 59 W.W.R. 309.
59 Ibid., at p. 312.
60 In Joubert v. Toronto General Trust Corp., (1955), 15 W.W.R. 654, adopting
language of Fry, L.J., approved by the Supreme Court of Canada in Lundy
v. Lundy, (1895), 24 S.C.R. 650. See Cleaver v. Mutual Reserve Fund Life
Association, [1892] 1 Q.B. 147, at p. 156.
No. 3″]
THE WRONGDOING PLAINTIFF
This last sentence seems to express succinctly and very pointedly
the whole basis of the ex turpi doctrine. It is unseemly for a court
to help a criminally acting plaintiff injured through his criminality.
In the older language of Lord Lyndhurst, C.B. in Colbourn v.
Patmore “I (a case concerned with claims between two tortfeasors
– which has always been an area in respect of which the wrong-
doing of the person seeking indemnity or contribution has been
relevant to the success of his claim, at least until legislation made
significant changes):
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… 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.
Lord Lyndhurst’s lack of doubt has not been shared at all times
and on all occasions by other judges. It is certainly true that the
court in Manitoba, on another, more recent occasion, saw fit to
apply the ex turpi doctrine to deny recovery to a plaintiff who
was a gratuitous passenger in a car stolen by the defendant, to
the plaintiff’s knowledge, when the plaintiff was injured by reason
of the defendant’s negligent driving. 2 However, the same result
did not eventuate in another Manitoban case, Rodrigue v. Penner,0 3
though this may have been because the facts did not indicate that
the plaintiff aided and abetted the defendant’s
illegality, viz.,
drunken driving, to such an extent as to make him liable to be
considered as being in pari delicto with the defendant.
However, the cases which suggest ex turpi causa non oritur actio
as a ground for rejection of a plaintiff’s claim must now be read in
the light of the comments and strictures raised by Windeyer, J.
in Smith v. Jenkins.’ These must surely make it difficult to accept
that maxim as a satisfactory basis for decision-making in this
area, if indeed, in the light of the comments in the England case
any further critique was necessary.
Windeyer, J. began his discussion by a consideration of the
role of the maxim, and its appropriateness in the law of contract.
01 (1834), 1 C.M. & R. 73, at p. 83.
02Rondos v. Wawrin, op. cit., n. 11.
03 (1970), 74 W.W.R. 96.
04 [1970] 119 Commw. L.R. 397, at pp. 409-417. It is worthy of note that
Glanville Williams wished to confine the application of the doctrine to
plaintiffs who were guilty of “grave breaches of the criminal law”, e.g.
smuggling, not an infringement of the Docks Regulations. See: Williams,
op. cit., n. 18, at p. 335, note. 6.
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The question then arose whether the maxim had a place in the
law of tort. This necessitated taking the maxim as referring not
to turpis causa, in the sense previously explained by the learned
judge, as meaning an illegal or immoral consideration, or a purpose
that was unlawful or immoral, but to a “turpitudo”. This the learned
judge found hard to do, despite, or perhaps because of the curious
cases in the nineteenth century, such as Hegerty v. Shine (the
“miserable” case as the Australian judge called it)’5 Moreover,
in the contract cases, the rationale behind denying the plaintiff
an action was that he had to rely upon an illegal or immoral activity
or arrangement as the basis for his claim. In cases such as Smith
v. Jenkins, and indeed all those which are now under consideration,
“it was the defendant, not the plaintiff, who asserted the illegality
of the proceedings in the course of which the negligence sued
upon occurred. The plaintiff did not have to say that the defendant
was driving the car in breach of the law, only that he drove it
negligently”.6 6 Thus, from a purely pleading point of view, if this
was in any way conclusive or even persuasive, there was a vast
difference between the notion turpis causa in contract and the
use of the doctrine that was suggested in the context of a claim
in tort. While the law had accepted the idea that if a plaintiff
has to rely upon an unlawful transaction to establish his cause
of action, the court will dismiss his case (for reasons explicable
in English or Latin), there was a wide gap between recognition of
such idea and extension thereof to a case where the defendant
was the one raising possible illegality on the part of the plaintiff,
as well as on his own. On that basis the maxim was properly
confined to the law of contracts and conveyances. Hence Windeyer,
J., in a characteristically military metaphor, was prepared to “march
it off and dismiss it from this case”.67 But the judge went further,
and discussed the possible relevance of the maxim in view of the
way it had been cited and relied upon by parties and indeed by
some courts. The latter had not approached this question con-
sistently: in fact the judgments were conflicting (as indeed has
been pointed out in this essay). Therefore a solution was not to
be found in the cases, but in principles. The passage in which the
learned judge disposes of this question on principle merits citation
at length: 68
65 Ibid., at p. 413.
66 Ibid., at p. 414.
67Id.
68 Ibid., at pp. 416-417.
No. 3]
THE WRONGDOING PLAINTIFF
Speaking generally, a person is not disqualified from suing in tort merely
because at the time when he suffered the injury he was engaged in
some form of wrongdoing, unless it appears that the law against which
he offended precludes him from complaining of the conduct which caused
him harm… If the plaintiff’s own conduct was a contravention of a
law designed to ensure that he, and others similarly situated, would
be safe from danger, and if this conduct was a factor in producing
his injury he may be found guilty of contributory negligence or of
being the author of his own misfortune. That however is very different
from saying that, simply because a man was a wrongdoer, he can have
no remedy at law for harm done him…
… The question here is not, Is the plaintiff precluded from recovering
because he was a wrongdoer? 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.
Windeyer, J. made it clear that he was concerned only with the
tort of negligence and that as regards other torts different prin-
ciples might obtain. Nonetheless,, in view of the way that this
problem has arisen largely in connection with negligence claims,
what the learned judge has to say must be most influential when
it comes to deciding upon any general policy in this regard. For
this reason the rejection of the doctrine ex turpi causa in this
context is highly important. And the reasoning upon which such
rejection is based is equally vital. Slavish emulation of the contract
principles in an altogether different situation could lead to a
confusion of the real issue before a court faced with the tort
problem. What Windeyer, I. was attempting to do, it is respectfully
suggested, was to place the illegality of the plaintiff’s actions in
the right perspective vis-h-vis his claim: namely, by identifying
the relevance of such conduct in relation to the tort duty, whether
of care or otherwise, though in the particular case the judge was
concerned with a potential duty of care, alleged to be owed by
the defendant to the plaintiff. In a sense, this is the analogy in
tort terms of the treatment of a turpis causa in the context of
contract. But it is not quite the same. Hence the need to repudiate
the treatment of the tort problem along the same lines as some-
what similar situations in contract. Unlike the position is contract,
there is no general principle in tort whereby a court can deny a
claim to any plaintiff once his participation in, or commission of
a wrongful act is established as being in the background of his
claim for damages against the defendant. Each case, or at least
McGILL LAW JOURNAL
[Vol. 18
each cause of action, must be considered in isolation. To quote
Windeyer, J. again: 69
Torts differ, and I do not intend to propound any general principle to
cover cases other than negligence, such as if one thief committed an
assault and battery on his fellow, or slandered him to another member
of their gang while they were criminally engaged.
b. Public Policy
A more general point now arises. In several cases the suggestion
has been made that the true basis for determining whether or not
the plaintiff’s wrongdoing should affect his claim is some vague
notion of public policy not necessarily limited by the doctrine of
ex turpi causa. Such, indeed, is the background to the expression
in cases like Henwood v. Municipal Tramways Trust 70 of the idea
that the relevant statute must be interpreted in the light of its
policy so as to decide whether that policy extends so far as to
affect potential claims brought by an offender against the statute.
Public policy, in this sense, has already been discussed. Clearly,
if this approach is correct, at least where the plaintiff is in breach
of some statute, it could be argued that it is founded upon some
such basis as that the public interest, or the policy of the statute
(if, indeed, that means anything different), require taking the
plaintiff’s own illegality into account in determining his rights.
However, in other cases, the language employed by courts suggests
that the expression “public policy” is being used in a different way,
or with a different meaning. Indeed, if breaches of the common
law on the part of a plaintiff are to be considered as relevant as
breaches of statutory provisions, there would need to be some
more general concept of public policy that is applicable in this
context for a satisfactory solution to be found, or to be capable
of being found in all cases of this type. 71 What could be the formu-
lation of such a general concept of public policy? It would seem
to be along the lines suggested by Lord Lyndhurst in Colburn v.
Patmore, to which reference has already been made, or to quote
the language of Bayley, B. in Stephens v. Robinson,72 on the ground
that, “a civil court will not make itself ancillary to the commission
69 Ibid., at p. 417.
70 0 p. cit., n. 6.
71 It is to be noted that a distinction was drawn between these two types
or categories of illegality, for this purpose, in Crago, The Defence of Illegality
in Negligence Actions, (1964), 4 Melbourne U.L. Rev. 534. Note the restriction
of the scope of that essay to negligence.
72 (1872), 2 C. & J. 209, at p. 211.
No. 3]
THE WRONGDOING PLAINTIFF
of a crime”. That this is something different from the ex turpi
doctrine is indicated in several cases, in which a differentiation has
been made between that doctrine and the more general notion of
public policy now under discussion. It seems to have been one basis
upon which the lower court decided against the plaintiff in the
Canadian case of Danluk v. Birkner 73 (which, interestingly enough,
was cited with approval and utilised in a Michigan case, Manning
v. Noa).74 In the Ontario case the plaintiff was in a disorderly house
owned by the defendant and run by him in contravention of the
Criminal Code. By being on those premises the plaintiff was also
guilty of an offense. There was a raid on the premises in con-
sequence of which the plaintiff ran away. While doing so, he fell
to the ground through a door which was not reasonably safe.
He sued the defendant, claiming that the latter was liable as an
occupier to him as a visitor. The Ontario court held that the
plaintiff was not a ninvitee to whom the normal duty owed by an
occupier to an invitee was owed, which would have resulted in
liability in this case, because the plaintiff was on the defendant’s
premises in pursuit of business that was unlawful. This ground
was upheld on appeal to the Supreme Court of CanadaY5 But the
Ontario court also decided against the plaintiff on the more general
ground already indicated and this second reason for dismissing
the plaintiff’s claim was not discussed or determined on appeal.
However, further Canadian support for this approach may be found
in the more recent case of Ridgeway v. Hilhorst,76 in which the
learned trial judge relied heavily upon some general concept of
public policy, reinforcing, if not altogether replacing the ex turpi
doctrine, to refuse recovery on the part of the criminal plaintiff.
In Australia there has also been some consideration of this point.
Thus in Godbolt v. Fittock77 Sugerman, J. referred to the pos-
sibility of the plaintiff being debarred from recovery, where he was
injured by the defendant’s negligent driving of a vehicle which
the two of them were using to steal and dispose of cattle for their
mutual profit, “only if it would be contrary to some recognised
head of public policy that he should be awarded damages in the
circumstances stated”. The succeeding language of the learned
judge’s judgment leave ambiguous whether he regarded the ex turpi
doctrine as such a “recognised head of public policy” or as an
73 [1946] 3 D.L.R. 172.
74 345 Mich. 130 (1956); 77 A.L.R. 2d 955.
75 [1947] 3 D.L.R. 337.
76 (1967), 59 W.W.R. 309.
77 (1963), 63 S.R. (N.S.W.) 617, at p. 620.
McGILL LAW JOURNAL
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alternative ground for debarring the plaintiff from recovery. How-
ever after considering in detail both the ex turpi doctrine and the
general concept of public policy, the learned judge concluded that
the question was always 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”.78 In the same case Manning, J.79 referred
to the invocation of what sometimes termed ex turpi causa non oritur
actio and at other times public policy as a defence to tort actions
in such instances. The learned judge did not want to generalise about
this since the application of the rules of public policy in such
cases would provide almost as much difficulty as controlling the
“unruly horse” which the policy itself has been said to resemble8 0
He was satisfied to deal with the particular facts and deny a remedy.
The idea that some abstract notion of public policy should be
relied upon to solve the question was considered by Adam, J. in
Boeyen v. Kydd.8 ‘ But that judge was loathe to admit any defence
of the plaintiff’s own illegal act on the basis of what he termed
Isome supposed principle of the public policy”. While there might
be cases where public policy did operate in such manner, to reason
from these that there was a general doctrine applicable to all cases
was to go too far. “The law does not deprive criminals, and even
if they are engaged in criminal enterprises, of civil remedies merely
on that account”.S2 That judgment received some critical consider-
ation by Walsh, J. in Smith v. Jenkinsf2 in which it was said that
the suggested instances in which Adam, J. had admitted the oper-
ation of public policy to provide a defence to liability could not
be isolated from other possible instances. As Walsh, J. said: 84
… if public policy provides a bar to recovery where the illegal act is
a step in the execution of an illegal purpose common to the plaintiff
and the defendant, it seems difficult to regard public policy as having
no application to a case in which the illegal acts being committed by
the plaintiff and the defendant at the time of the injury constitute
the actual fulfillment of the illegal purpose which they had in common.
A stronger decision supporting the possibility that public policy
is the basis for deciding these instances is that of the Supreme
78 Ibid., at p. 624.
79 Ibid., at pp. 627-628.
SO Ibid., at p. 630.
81 [1963] V.R. 235, at p. 237.
82 Ibid., at p. 238.
83 op. cit., n. 64, at p. 430.
84 Ibid., at p. 431.
No. 3]
THE WRONGDOING PLAINTIFF
Court of Victoria in Mills v. Baitis.5 In
that case the plaintiff
was claiming for loss of earnings resulting from the negligence
of the defendant. It was not suggested that at the time the plaintiff
was doing anything illegal which helped to bring about the accident
or his personal injuries. In this respect this case was very different
from all those which have been considered in this essay. But the
plaintiff’s business was being carried on in contravention of an
Act which regulated town and country planning. His business of
automotive engineer was being carried on in what was designated
as a residential zone. The defendant accordingly argued that the
loss of earnings in connection with this business ought to be dis-
regarded by reason of the plaintiff’s illegality in conducting such
an operation in such a place. The defendant’s argument did not
succeed. It was based in the first place upon the ex turpi doctrine
and, secondly, should such doctrine prove to be too narrow, on
general considerations of public policy. The Court had no difficulty
in rejecting the “narrower” doctrine as a ground of defence. Having
dealt with this point Gowans, J., who delivered the leading judgment,
proceeded to discuss the more general principles of public policy.
While, apparently, accepting the possibility that, in appropriate
circumstances, public policy, in terms of the purposes of the common
law or the particular intent of an individual statute, could be
invoked to deny a remedy otherwise available, the learned judge
had no difficulty in finding that no such doctrine could apply
in the instant case for such purpose.86 In coming to such con-
clusion the judge cited two cases, in one of which, a New Zealand
decision, Le Bagge v. Buses Ltd.ST the court disregarded the fact
that the decedent, on behalf of whose estate the widow was suing,
had been in breach of regulations with respect to the earnings loss
of which was being claimed: while in the other of which, a decision
of the Supreme Court of Victoria in Meadows v. Ferguson,”” the
plaintiff’s earnings in the illegal employment of a street bookmaker
were disregarded in an action by him for damages for personal
injuries, in which part of the damnum alleged to have been suffered
was the earnings he would have made had he not been incapacitated
as a result of the defendant’s negligence. The latter was distin-
guished, by Gowans, J. and Lush, J. It would seem that the ground
for distinction was a very narrow one and related to the policy
of the statutory provisions being infringed. But certainly Gowans,
85 [1968] V.R. 583.
86 Ibid., at pp. 586-591.
87 [1958] N.Z.L.R. 630.
88 [1961] V.R. 594.
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J. left open the possibility of a reconsideration of the earlier
Victorian decision. It is interesting to note that, while many other
decisions were seriously and lengthily discussed by the High Court
of Australia in Smith v. Jenkins, this latest case was left virtually
unmentioned. It is possible to isolate this case as dealing with its
special facts, and raising a problem only in connection with a
particular statute. I would suggest that it is at the very least
interesting in that the court had seriously to contend with the
idea that public policy of some general kind could apply to this
sort of problem so as to deprive the plaintiff of a remedy that
otherwise would have been his by entitlement.
These few judicial dicta on the subject of public policy, in
contrast with the ex turpi doctrine, suggest that while there is
some support for such a notion, it has not met with widespread
approval among the judges who have had to contend with this
issue, at least outside the discussion of such notion in relation
to statutory infringements. It would appear that, in their search
for some governing principle in this area of the law, the courts
have not been very willing to reach out for such a nebulous,
and oft-criticised doctrine to provide the basis for their decisions.
In truth it may be said that such a doctrine would provide a
very weak and shifting foundation for any general principle of
law in this context. Enough has been said in the context of the
law of contract to indicate the undesirability of calling any such
general idea to solve concrete legal problems. It opens up the law
to all kinds of influences:
it leads to inconsistent and sometimes
unjustifiable decisions: and it obfuscates true legal doctrine. I would
suggest that any resort to some broad based notion of public
policy is illadvised and not likely to meet with general favour.
c. A Question of Duty
This conclusion leads back to the third, and final suggestion
which has been propounded, and that, in effect, is the rationale
put forward by Windeyer, J. and other members of the High Court
of Australia in Smith v. Jenkins.9 One way of solving this problem
is to take the plaintiff’s illegal conduct, or his illegal situation,
into account with defining what duty, if any, is owed to him by
the defendant. This certainly is workable if the plaintiff’s cause
of action is framed in negligence, or alleged negligence in some
way. Whether it is capable of producing a satisfactory answer in
89 Op. cit., n. 64.
No. 3]
THE WRONGDOING PLAINTIFF
other instances is more debatable. So far as the negligence question
is concerned, an early case in which this kind of approach appears
to have been adopted is Hillen v. I.C.I. (Alkali) Ltd This concerned
a plaintiff workman who was himself in breach of the Docks
Regulations at the time he was injured while working on a barge.
He sued the owners of the barge being unloaded, alleging negligence
and breach of statutory duty. In the Court of Appeal (in which
this question arose, though it was not dealt with on further appeal
to the House of Lords),9’ it was held that the defendants were
not liable. The reason given by Scrutton, L.1Y2 was that the illegal
act of the plaintiff prevented any duty arising as between defendant
and plaintiff (other than to abstain from deliberately committing
any act designed or calculated to injure the plaintiff while he
was performing his work). The whole tenor of the judgments in
the Court of Appeal was to the effect that by behaving in the
illegal manner in question the plaintiff put himself outside the
protection of the law of negligence. In thinking this way, the
court was very much moved by the importance of maintaining and
enforcing the provisions of the Docks Regulations, particularly
from the point of view of those for whose benefit they had been
passed . 3 A similar attitude can be seen operating in the Ontario
case of Danluk v. Birkner, 4 to which reference has earlier been
made. Once again the fact that the plaintiff was behaving illegally
rendered the defendant immune from any duty or obligation with
respect to negligent, as contrasted with deliberate conduct.
In a New South Wales case, Christiansen v. Gilday 9 5 the plaintiff’s
claim arose out of injuries resulting from a faulty winch on a ship
on which he went to sea. Both plaintiff and defendant, the owner
of the ship, were in breach of the Navigation Act in allowing the
ship to proceed in such an unseaworthy or dangerous condition.
It was held that the plaintiff had no remedy in respect of his
injuries: and the reason for this was that he was owed no duty
in the circumstances. On the other hand, in the later case of
Boeyen v. Kydd 96 where the plaintiff’s illegality was raised as a
90 [1934] 1 K.B. 455.
91 [1936] A.C. 65.
92 [1934] 1 K.B. 455, at p. 467.
03Ibid., at p. 468. Note the criticism of Glanville Williams, who would
not have been so strict in this regard: op. cit., n. 64. Contrast the later
attitude in the Cakebread case, op. cit., n. 4.
9 4 0 p. cit., n. 73.
05 (1948), 48 S.R. (N.S.W.) 352.
96 Op. cit., n. 81.
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defence to negligent driving by the defendant, Adam, J. would not
allow such illegality to affect the duty of care which would have
been owed by the defendant in “normal”, i.e. non-criminal circum-
stances, unless it would have been against public policy to give
the plaintiff the relief he sought; a proposition which necessitated
the earlier considered discussion of the role of public policy in
this context. The notion that, in the words of Dixon and McTiernan,
JJ. in the Henwood case,97 “many duties arise only out of relations
which could not subsist when one of the parties is a wrongdoer
or is engaged in an illegality”, and therefore in appropriate cases
the illegality of the plaintiff affects his situation in terms of ousting
a duty that might otherwise arise, was taken up and developed
in detail by the court in Smith v. Jenkins. s Barwick, C.J., in a
very short judgment, expressed the dilemma of the law very well
when he wrote: 09
The choice.., 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…
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.
The learned Chief Justice came to the conclusion that the former
was the proper basis for the law’s response. Where there was a
relationship arising out of joint participation in an illegal act,
then the law would not hold that a duty of care arose out of that
relationship. Kitto, J. put it in a rather different way when he
said 100 that the general principle of law was that:
persons who join in committing an illegal act which they know to be
unlawful (or… 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.
It must be noted that the Chief Justice and Kitto, J. seem to be
referring to a situation in which the illegal act by the plaintiff is
committed in concert with the wrong of the defendant (as indeed
emerges from the judgment of Scrutton, L.J. in the Hillen case). 10
97 Op. cit., n. 6, at p. 465.
98 Op. cit., n. 64.
99 Ibid., at p. 400.
100 Ibid., at p. 403.
101 This is comparable to the contract situation where the plaintiff is barred
from a remedy on grounds of ex turpi, or because he is in pari delicto. The
consideration is illegal (or immoral) and is inextricably
interwoven with
the entire transaction: c.p. Smith v. Jenkins, op. cit., n. 64, at pp. 411-412
(per Windeyer, J.).
No. 3]
THE WRONGDOING PLAINTIFF
What they said would seem to be inapposite where the illegal act
of the plaintiff is quite severable from any tortious, and a fortiori
any criminal act of the defendant. Windeyer, J., in a more full-blown
analysis, discussed the whole concept of negligence, in Atkinian
terms, and asked whether the plaintiff and defendant in a case
such as Smith v. Jenkins were “neighbours”. 2 The answer which
is to be found in his judgment is that, for the purposes of the
general law of negligence, such parties, i.e. those engaged in a
mutual criminal activity, are not in that sort of relationship. But a
lot depends upon whether the harm arose from the manner in which
the criminal act was done. This was not causation in the old
scholastic sense but one of connexion and relationship and involve-
ment. For that the modern jargon (the expression is that of
Windeyer, J.) 103 of remoteness and proximity was more useful. In
other words, it may be suggested, the criminality of the plaintiff
is a relevant factor in determining the scope of the defendant’s
duty out of which his liability is alleged to arise. In this respect
an illegally acting plaintiff, though foreseeably likely to be injured,
is not one in respect of whom the defendant undertakes, or is
obliged to undertake any responsibility. It is true that at one point
in his judgment 104 Windeyer, J. appears to be suggesting that the
rationale of the denial of any liability is negation of duty, some
extension of the volenti principle, or the refusal of the courts to
aid wrongdoers. But the general intent of that judgment seems
to be that a participant in a criminal offence relieves his fellows
from any responsibility towards. The learned judge then went on
to consider 105 whether there were any exceptions of qualifications
of this principle, in the sense that there might be crimes which did
not have the effect of depriving a plaintiff of his remedy. 0 6 Any
distinction between statutory and other crimes was rejected as
reviving the old difference between mala prohibita and mala in se.
Other types of differentiation were also fraught with difficulty in
their application. Any generalisation was avoided by the judge.
But he did go so far as to consider what had been suggested with
regard to the way in which statutory offences might be interpreted
in this regard. On this he concluded that the right inquiry to
‘020p. cit., n. 64, at pp. 417-419. Hence “special relationships”, such as
were considered in Hedley Byrne v. Heller, [1964], A.C. 465, may create duties
or negate them.
1o3 0 p. cit., n. 64, at p. 421.
104 Ibid., at p. 422.
105 Ibid., at pp. 422425.
10o Cf. Crago, op. cit., n. 71.
McGILL LAW JOURNAL
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make was “whether the statute is to be read as abrogating the
basic rule… that there is no right of action by one criminal against
another for negligence”. 07 The answer to this was to be found in
the terms and the subject-matter and purpose of the statute. The
judgments of Owen and Walsh, JJ. also support the general propo-
sition that no duty arises in this kind of situation rather than that
the plaintiff is deprived of his right of action on some such principle
as volenti, ex turpi, or public policy. The vital issue was the nature
of the relationship between the parties. Illegality made the plaintiff
someone other than a neighbour. 08 But again I raise the query
whether in this context the court was confining its remarks to a
case in which the illegality was common to plaintiff or defendant.
The burglarious drinker of the ginger beer, in the example I gave
at the outset, would seem not to be comprehended within the
scope of the judgments in this case. What is the answer so far
as he is concerned?
IV. Compromise and Resolution
This does lead to an important question. The judges in Smith
v. Jenkins all appear to have accepted that there was some general
principle denying liability in a case such as that before them. That
principle appears to have been that the law of negligence does not
always permit a wrongdoing plaintiff to succeed in his action. 09
At the same time the judges in that case definitely accepted the
other proposition that, in the words of Walsh, J.,”0 “a plaintiff is
not necessarily out of court because he was committing an unlawful
act when he was injured”. In saying this the court was simply
following what had earlier been adopted by the High Court of
Australia in the Henwood case. It was also a principle of law which
was accepted by Barrowclough, C.J. in New Zealand in Green v.
Costello I” a case involving a fight. Some Canadian cases of the
same sort also appear to have accepted that mere criminality does
not deprive a plaintiff of an action.” 2 Indeed in Foster v. Morton”3
the court seems to have required some clear common purpose or
intention, if not indeed active mutual participation in a crime with
1D7 Op. cit., n. 64, at p. 424.
108 Ibid., at pp. 426, per Owen J., 432-433 per Walsh J.
109 Ibid., at pp. 428-429 per Walsh, J.
110 Ibid., at p. 428.
111 [1961] N.Z.L.R. 1010, at p. 1012: c.p. Lane v. Holloway, op. cit., n. 15.
112Hartlen v. Chaddock, (1958), 11 D.L.R. (2d) 705; Wade v. Martin, [1955]
3 D.L.R. 635.
13 (1956), 4 D.L.R. (2d) 269.
No. 3]
THE WRONGDOING PLAINTIFF
the defendant, before any recognition would be accorded to the
plaintiff’s criminality for this purpose. There is thus a respectable
line of authority, in several jurisdictions, which is loathe to import
into considerations of civil liability any question or issue of crimi-
nality. We come back to the fundamental issue, therefore: which
is, whether there are legitimate grounds for ever taking such crimi-
nality into account outside the confines of the criminal law? If
the answer is that there are, then the further question arises:
should any differentiations be made between types, kinds, degrees,
or effects of criminality? The foregoing discussion of how courts
have attempted to resolve these issues, it is suggested, does not
provide any satisfactory answer to the problems just posed. While
there are indications in the judgments that have been examined
of possible grounds for a principle (and even for the nature of
any such principle), the law is as yet too diffuse. Anyone who seeks
to write on this subject is therefore compelled to make his own
suggestions as to a suitable way for the courts to cope with the
issue of the wrongdoing plaintiff.
The first thing that can be said is that to adopt any rigid theory
that makes the plaintiff’s criminality a reason for denying him a
remedy would be unacceptable not only on the basis of the au-
thorities as they stand, but also having regard to general legal theory.
It is clear that the courts will not take kindly to any notion that
a criminal is ipso facto an outlaw when it comes to the protection
of the law of torts. Nor is there any valid reason why they should.
The days are long past when contributory negligence on the part
of a plaintiff put him out of court when it came to a remedy in
respect of the defendant’s negligence or other wrongful conduct.
Even when it is alleged that the plaintiff voluntarily assumed the
risk of injury, the attitude of the courts is very stringent: clear proof
must be adduced to establish a case of express or implied consent
(especially the latter). The relevance of the plaintiff’s own conduct,
even when it does not amount to contributory negligence or as-
sumption of risk, but might otherwise disrupt the connection
between the defendant’s wrongdoing and the plaintiff’s harm, is
also something that requires very careful analysis before it can be
established to the satisfaction of a court. In short, therefore, the
law of torts has advanced to the stage at which there is a greater
tendency to provide compensation for an injured plaintiff, than
to allow or admit of any excuse for an otherwise tortious defendant.
If that is a correct assessment of the current philosophy of the
courts in tort cases, it would seem reasonable to infer that, so
far as the wrongdoing plaintiff is concerned, a similar lenient
McGILL LAW JOURNAL
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attitude ought to apply. Unless compelled for very good reasons,
therefore, a court should be in a position to ignore the nature of
the plaintiff’s conduct, where it is alleged to be criminal, and
determine the case as though whatever the plaintiff had done, albeit
that it was relevant in legal terms on some other basis, had not
been criminal. The fact that the plaintiff had committed a crime
might be of interest to the State: so far as the defendant
is
concerned it should be regarded as res inter alios acta. Taking this
to its extreme, therefore, it could be concluded that the courts
should never pay heed to allegations that the plaintiff was guilty
of committing a criminal offence, by statute or at common law,
at the time a tort was committed against him by the defendant.
By many, including judges, this would be considered far too
extreme an attitude to adopt. Surely some notice should be taken
of the fact of the plaintiff’s criminality at the material time? The
judgments that have been referred to above manifest a desire to
recognise, at least sometimes, that a plaintiff who is in the wrong
criminally ought not to be allowed to profit or obtain compensation
in the same way as a plaintiff who is entirely innocent in the
criminal sense. The question, therefore, resolves itself as being one
of finding a basis for discriminating between the cases in which
notice should, and those in which it should not be taken of the
plaintiff’s criminality. This is where the decisions already discussed
reveal not only inconsistency, but also a bewildering array of sug-
gestions. It is clear that many of these suffer from illogicality or
inappropriateness. It is hard to accept that a plaintiff guilty of
some criminal activity should be denied a remedy on the ground
of so-called contributory negligence or voluntary assumption of
risk. To apply without qualification any notion of causation, as
Windeyer, J. validly pointed out in Smith v. Jenkins, is to introduce
some difficult and artificial distinctions into yet another area of
the law. That leaves the idea of public policy, in its “crude” state
or in some more refined or limited manifestation. The comment
scarcely needs to be made that the idea of public policy is sufficiently
nebulous, and indeed dangerous, to render it undesirable to en-
courage its even wider application. All too easily can a court slip
into the comfortable answer of “public policy” by way of response
to the query, on what basis, or how can one justify the denial of
a remedy to an otherwise deserving plaintiff. The maxim ex turpi
causa non oritur actio is no more satisfying or helpful. Apart from
the point made by Windeyer, J,114 that this maxim applies in con-
114 Smith v. Jenkins, op. cit., n. 64, at pp. 413414.
No. 3]
THE WRONGDOING PLAINTIFF
tractual situations, not tortious ones, there is the further consider-
ation that it is just as vague and undefined as the more basic
concept of public policy, of which it is a product. The most attractive
suggestion would seem to be that contained in the recent Australian
case, namely, that, in defining the scope of a particular tort, the
conduct of the plaintiff can and should be a material factor. This
perhaps is most apposite, and possibly most easily incorporated
in cases of negligence, in respect of which it has been applied.”5
Possibly it could also be utilised in relation to other torts. From
what was said in Smith v. Jenkins,”-6 however, it would appear
that there are stil some problems involved in the acceptance and
application of this approach. It was left very much in the open
which crimes would and which would not be relevant in determining
whether, in negligence cases, for instance, the prospect of some
criminal activity on the part of the plaintiff was foreseeable and
should be disregarded in deciding whether a duty was owed. Yet
this is a most important question: whether any classification should
be made could have a world of difference on the ultimate result
of litigation. In this regard there would seem to be necessity for
some limited application of the doctrine of public policy, in terms
of the statutory policy intrinsic in the provision of the law which
the plaintiff has infringed. This does seem to be an integral part
of the reasoning of Windeyer, J.” 7 Therein, possibly, lies the flaw
in this approach.
Insofar as this approach necessitates some reference to public
policy for its proper application, not necessarily on the facts of
Smith v. Jenkins, but, from what was said therein, on other, suitable
occasions, there would still appear to be something indefinite and
nebulous inherent in determining problems on this basis. Indeed
there is uncertainty, even in the language used in that case, as
to the extent of the application of Windeyer, J’s. approach. What
crimes are included, and what outside its scope? This is not answered
expressly or otherwise. What, if any, difference is there between
statutory and other crimes? That raises another problem. Is it as
simple a matter to determine the public policy inherent in a common
law crime as it is in respect of one created by statute? That
question pre-supposes that the latter task is an easy one to perform,
which, itself is debatable. The conclusion which I would suggest,
therefore, is that, while the approach indicated recently by the
115 In the Hillen case, op. cit., n. 90, and Smith v. Jenkins, op. cit., n. 64.
116 Op. cit., n. 64, at pp. 423-425 (per Windeyer, S.).
17 Ibid., at 424; c.p. Walsh, J. ibid., at pp. 433-434.
McGILL LAW JOURNAL
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High Court of Australia is superficially attractive, and seems to
be capable of resolving the problems that arise in this area of
the law, on closer examination the answer therein provided is as
uncertain, and as fraught with difficulty, as many another.
The truth would seem to be that no one approach is altogether
satisfactory. On the contrary elements of several different ones can
be combined to provide a reasonable and rational basis tackling
the problem of the wrongdoing plaintiff, without the need for resort
to any general, or even more specific doctrine of public policy,
rejection of which has already been argued and urged. I would
suggest that properly understood and intelligently combined, the
ideas of causation, remoteness and blameworthiness can provide
the answer. Causation, here, refers to the notion that the plaintiff’s
act is historically relevant to what happened to him. If he had not
done what he did then he might not have been injured as he was.
Remoteness, as indeed Windeyer, J. indicated in his judgment, 118
refers to the legal relevance of the plaintiff’s act. In other words,
his conduct must have been foreseeable as a possibility, and there-
fore as being something against which a reasonable man could
and should have guarded (if the case is one of negligence) or as
being a factor which could operate with the defendant’s own wrong-
doing to produce harm to the plaintiff. This notion is well understood
and accepted in modern law in the light of the various cases which
have considered the concept of remoteness in relation to negligence,
nuisance, and other torts. Blameworthiness, here, means or infers
what it would seem to mean or infer in the context of apportion-
ment legislation dealing with contributory negligence. I would say
that this has reference to the moral relevance of the plaintiff’s act.
Should what the plaintiff did be treated as involving himself in
some sort of responsibility for his injury? Cases on the proper way
to interpret and apply apportionment legislation reveal that what
is involved is not historical or physical causation but moral re-
sponsibility or blameworthiness. It is the plaintiff’s share in this
which determines the extent to which he will lose his claim to
damages. Fault, not causation is the test.119
Thus the effect of this suggestion is that in order to determine
whether a wrongdoing plaintiff should be deprived of his remedy
his conduct should be investigated from three aspects. Was it caus-
ally relevant? Was it not too remote a possibility? Was the plaintiff
118Ibid., at p. 421.
119 See: e.g. Pennington v. Norris, [1956] 96 Commw. L.R. 10; The Miraflores
and The Abadesa, [1967] 1 A.C. 826; Brown v. Thompson, [1968] 1 W.L.R.
1003; Winfield and Jolowicz on Tort, op. cit., n. 47, at pp. 115-118.
No. 31
THE WRONGDOING PLAINTIFF
at fault in respect of his own injury? If these three questions can be
answered affirmatively, then the plaintiff should not succeed. If
negatively, then his conduct should be treated as legally irrelevant
to the issue of the defendant’s liability. If some, but not all, are
answered affirmatively, then it will be a matter of weighing the
importance of the affirmative factor or factors as against the factor
or factors which are negative or operate in favour of the plaintiff.
Such an assessment is not unfamiliar to courts, and is not impos-
sible for courts to make. Consequently it should be possible for
a proper decision to be achieved in any given case.
The value of such an approach, it is respectfully suggested,
is that it does not involve a court in testing issues of liability by
reference to some notional public policy, or by making intelligent
guesses as what a legislature would have intended had its mind been
drawn to the particular question. Nor are questionable concepts
brought into play. On the contrary a court will be able to decide
a particular instance by reference to well-defined and understood
legal concepts which give effect to legal policy (which is much more
accepted and stable than so-called public policy). Just as courts
have been able to work out rational principles upon which to de-
cide cases where the plaintiff’s conduct is alleged to be material
to the issue of his recovery so in cases of the kind now under
consideration the same result can be achieved. It is the contention
of the present writer that this kind of approach to this problem
can provide a means of reconciling the contradictory and incon-
sistent judgments that have been delivered over the years: enable
courts to follow, without having to indulge in ingenious distinc-
tions, or questionable niceties, what has been said and done before:
and provide a satisfactory guide for the future. To indicate what
is meant, reference can be made, in the end as well as the begin-
ning of this essay, to the classical problem of the felonious drinker
of the ginger-beer in the Donoghue v. Stevenson situation. The
theft of the ginger beer is only thinly relevant historically to the
plaintiff’s injury: it is not especially foreseeable as a way in which
injury can be incurred: and, however illegal the thief’s conduct, it
is not morally related to his injury from the contents of the bottle,
in that he could just as easily have been affected had he come by
the bottle legitimately. Consequently, a court could, and should
conclude that the plaintiff must succeed as against the manufac-
turer. A more interesting exercise, which can be left to the reader,
is to take the facts of all the decided cases which have been dis-
cussed herein, and compare the actual results against the results
that would or might have been reached by an application of the
test which has been propounded.
