Failure to MOT, ex turpi causa and Hire claims
“Failure to have an MOT certificate due to an oversight could possibly give rise to a fine, but that is not what one would describe as criminal behaviour, in the true sense of the word. I am staggered that it was pleaded. I am even more staggered that it was argued before the District Judge. The District Judge would have none of it, however, and said that ex turpi causa had no part to play in this case. He was unquestionably right about that.”
In the Jack case the Claimant’s MOT was 4 ½ months out of date and the Claimant stated in his evidence that he had not been aware that it did not have a valid MOT, that it was due to an oversight on his part, and had it been brought to his attention he would have remedied the matter straight away. This evidence appears to have been accepted by the Court.
A similar issue was raised in a recent case in which I had involvement, Owusu v Greencore before HHJ Brown in Canterbury County Court. To put my cards on the table at the outset, I was Counsel for the Claimant and ended up very much on the wrong end of it! The Defendant relied on the cases of Agheampong -v- Allied Manufacturing London Limited [2009] Lloyd’s Rep IR 379 and the Northern Irish High Court case of Morgan v Bryson Recycling [2018] NIQB 12. As most readers will be aware, Agheampong deals with a case of an uninsured driver bringing a hire claim and essentially decided that a failure to insure does fall within the ambit of ex turpi causa and therefore the hire claim was dismissed. Morgan is more closely on point as it relates to a failure to MOT where an insurance policy was in place (albeit the insurance was invalidated by the failure to MOT, as is standard for most policies of insurance). The Northern Irish Court was persuaded that the failure to MOT did satisfy ex turpi causa and dismissed the hire claim. A little surprisingly Morgan appears not to have been referred to, or at least is not mentioned in HHJ Freedman’s judgment, in Jack v Dorys.
In Owusu the Court was referred to paragraph 120 of Lord Toulson’s Judgment in Patel v Mirza [2016] UKSC 42 which, although a very different type of case, both Counsel accepted as a concise general summary of the ex turpi causa principle and is set out below for ease of reference;
[120] The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality, the boundaries of which have never been made entirely clear and which do not arise for consideration in this case). In assessing whether the public interest would be harmed in that way, it is necessary a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, b) to consider any other relevant public policy on which the denial of the claim may have an impact and c) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts. Within that framework, various factors may be relevant, but it would be a mistake to suggest that the court is free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather by than the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate.
Applying the above caselaw to the case before her HHJ Brown preferred the reasoning of HHJ Dean in Agheampong and followed the decision of the Northern Irish Court in Morgan. The Claimant sought permission to appeal but permission was refused.
On the face of it therefore we have 2 Circuit Judges, HHJ Freedman and HHJ Brown, reaching diametrically opposed conclusions on the same point. The conflict may seem even more dramatic when one considers that in Owusu the MOT had expired only 2 weeks prior to the accident as opposed to 4½ months in Jack. However the difficulty for the Claimant in Owusu, and a point which caused particular concern for the Judge, was that on his vehicle being returned to him following repair, the Claimant had continued to drive the vehicle without an MOT for several months and only got round to getting an MOT nearly a year after expiry. In contrast to HHJ Freedman’s finding that the failure to get the MOT in Jack was ‘an oversight’ (on the face of it a fairly generous finding given that the MOT was 4½ months overdue) the failure to renew the MOT for nearly a year in Owusu suggested a more flagrant disregard for the legal duty to keep the vehicle with a valid MOT.
This is likely to be a battle which will run on. My own opinion is that the position on failure to MOT is unlikely to be resolved in a such a clear cut way as the decision in Agheompong which leaves no doubt that a failure to insure engages ex turpi causa. On any reasonable view a failure to MOT is a less serious offence than failure to insure. In my opinion where a Claimant can show that the failure to MOT was a mere oversight then it is unlikely that the Defendant will succeed in an ex turpi causa argument. The length of time that the MOT was overdue and whether the Claimant can point to a record of compliance with their duty to MOT are relevant considerations. Where a Judge forms the view that the Claimant’s failure to get their vehicle MOT’d goes beyond an oversight and shows a more serious disregard for the duty to MOT then a hire claim is likely to be in some jeopardy from an ex turpi causa argument. Of course, there will be many cases in the middle of this spectrum and therefore, do not fear, there is much for the lawyers to continue to argue about!
A further consideration is whether a failure to MOT which is sufficiently serious to engage ex turpi affects just the hire claim or other heads of loss as well. The Claimant in Owusu brought the full constellation of claims which might arise from a road traffic accident to include personal injury, physiotherapy, and loss of earnings as well as hire. He succeeded in recovering his losses other than hire. It seems to me that this must be correct and that, whilst there is a sufficient nexus between vehicle related losses and failure to MOT, depriving a Claimant of their damages for injury and other consequential loss would be disproportionate in a case of a failure to MOT. However, if ex turpi applies to a hire claim then I can see a strong argument that it should also apply to other vehicle related losses such as repairs / PAV and storage. This argument will no doubt be raised when a suitable case comes along.
Damage To Chattels
The normal rule is of course that the measure of loss in relation to an unrepairable chattel is its market value prior to the tortious damage and net of any salvage value. Where a chattel requires replacement the Claimant is entitled to the cost of replacement net of salvage. The price of a new ‘like for like’ gentleman’s wedding ring minus the crushed one’s value as scrap gold was relatively trivial in this case. I had a look through caselaw to see if anything could be done to compensate the Claimant for the emotional/sentimental value of never again being able to wear the ring exchanged on his wedding day. Ultimately little could be done (this isn’t a blog about heroic victory against all odds!) - the Claimant was limited to damages for the monetary value of the ring and any emotional / sentimental loss was noted as a feature of the injury to be reflected in general damages. However I did learn the following in relation to damage to heirlooms, photographs, family pets and the like where value to Claimants is not properly reflected in their market value.
The starting point is the long established principle that the law does not recognise damages for anxiety, grief or depression falling short of a recognised psychiatric illness1. If the Claimant can meet the diagnostic criteria of a recognised psychiatric condition then they can recover damages for nervous shock caused by seeing their chattels destroyed, so long as psychiatric damage was foreseeable and not too remote2. Lord Bingham in Attia cited the example of where a scholar’s ‘life’s work and research was destroyed before his eyes because of the Defendant’s careless conduct’ (the case was decided before the digital age, presumably there would now be a significant finding of contrib for failing to have the work backed up). Attia also provoked controversy in the wake of the decision in Alcock v Chief Constable of South Yorkshire [1992] 1 A.C. 310. The Alcock decision set restrictions on claims by secondary victims on the basis of proximity. Following Attia the test for witnesses to property damage was one of foreseeability of psychiatric harm. After Alcock the law was in the questionable position of prioritising witnesses to the destruction of goods, albeit goods heavily invested with emotional attachment, above the claims of witnesses to the physical harm of human beings. The problem with Attia is that recovery for psychiatric illness is treated as parasitic on the duty not to negligently damage the property. But just because there is a duty not to cause physical damage to property, it does not follow that there has to be a duty in relation to other forms of loss such as psychiatric illness which are the foreseeable consequence of the damage. Damages for psychiatric harm can also be recovered by a Bailor for property destroyed in breach of bailment where psychiatric harm is reasonably foreseeable consequent on the breach3.
Further authorities in this area are to be found in the demise of much loved family pets in veterinary negligence cases. For a nation of supposed animal lovers English Law has little to offer those bereaved by the loss of the family pet in negligent circumstances. Unlike in America where the loss of ‘companion animals’ has resulted in significant compensatory awards, English Courts have not explicitly recognised such loss. Having said that, as Charles Foster notes in his article “Carelessness Killed the Cat”4, contract law recognises damages for emotional disappointment and upset in circumstances such as disastrous holidays5 or ruined wedding days. An ambitious Claimant might seek to extend the principle to breach of contract and/or negligence (usually) by vets leading to the loss of a pet.
So in summary, there remains little room for sentiment in the assessment of damages for damage to chattels. Only if witnessing the damage has caused nervous shock meeting the diagnostic criteria for a recognised psychiatric condition in circumstances where such harm was foreseeable might the Claimant succeed.
by Peter Harthan
7 Harrington Street
1 McLoughlin v. O'Brian [1983] 1 A.C. 410
2 Attia v British Gas PLC [1988] Q.B. 304
3 Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37
4 PILJ 2009 No.74 (April) pages 15-17
5 Jackson v Horizon Holidays [1975] 3 All ER 92 is the leading authority, however for a more ‘entertaining’ read of a truly horrendous cruise experience read Milner v Carnival Plc (t/a Cunard) [2010] EWCA Civ 389
Injury by cricket ball
Well, times change. And this is a change which Personal Injury lawyers may well have an interest in. Many bowling leagues now have weekend fixtures and the popularity of evening 20/20 cricket has grown as fast as, regrettably, participation in amateur weekend cricket has gone in the other direction. These days the Bowling Green and Cricket pitch are often in use at the same time. Furthermore, 20 overs cricket favours the more aggressive batsman who puts runs on the board quickly rather than by accumulation. Cricket bats are also generally thicker, heavier and more powerful these days. All these changes mean that the frequency with which big hits from the cricket pitch might land on the bowling green and the consequent chance that a ball might strike a lawn bowler have significantly increased.
In any other context a group of elderly people being repeatedly rained down on with a hard, fast-moving and potentially lethal object (i.e. a cricket ball) would be something the law would not permit. However lawn bowlers are generally a stoic bunch, and Judges have generally been favourable to cricket. If you choose to do something in the vicinity of a cricket pitch, what do you expect? Such a view was expressed by the House of Lords (albeit perhaps with more gravitas) in Bolton v Stone [1951] 1 All ER 1078 where the Claimant was struck by a cricket ball from Cheetham Cricket Ground whilst standing at her house on Cheetham Hill Road, approximately 100 yards from where the ball had been struck. The principal reason for the House of Lords finding in favour of the Defendant cricket committee was that balls were hit such a distance very rarely, at most a few times each year.
The more well-known cricket balls case, perhaps owing to the characteristically florid Judgment of Lord Denning, was in Miller v Jackson [1977] QB 966. I expect many readers will be familiar with the first paragraph of Lord Denning’s Judgment, but for those who aren’t, I copy below one of the greatest paragraphs of prose ever written in the English language;
In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practise while the light lasts. Yet now after these 70 years a judge of the High Court has ordered that they must not play there any more. He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that when a batsman hits a six the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at week-ends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the judge to stop the cricket being played. And the judge, much against his will, has felt that he must order the cricket to be stopped: with the consequence, I suppose, that the Lintz Cricket Club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.
In overturning the injunction on cricket which had been granted by the High Court the Court of Appeal nonetheless found that the cricket club had been negligent and caused a nuisance (Denning dissenting) but that the public interest in village cricket should prevail over the interest of the individual householders who could not use their gardens whilst matches were taking place. The Millers moved house soon afterwards.
The Miller case is easily distinguished from a scenario where a lawn bowler is struck by a cricket ball. Lawn bowlers cannot be so easily dismissed as “newcomers”, the Greens often date from the same time as the proximate cricket pitch. The public interest is also more finely balanced, these days many of the old men watching cricket referred to in Lord Denning’s Judgment have, as the years take their toll on their athletic prowess, switched from cricket to the more sedate but no less competitive sport of Crown Green Bowls. Crown Green Bowls provides a sporting opportunity for those whose years of sprinting and leaping in strenuous contact sports are behind them.
So how does the law stand. Well there can be no doubt that cricket balls being struck onto a bowling green are a dangerous hazard with foreseeable risk of injury. The Sports Club is likely to be considered the Occupier of both the Cricket pitch and the Bowling Green. A Bowler on the Green is likely to be a Lawful Visitor. The Sports Club is therefore subject to the duty under s.2 of the Occupiers Liability Act 1957 to take such steps as are reasonable to keep the lawful visitor reasonably safe. Such steps might include;
i) Fences or nets to prevent balls falling on the Green
ii) Siting the wicket as far away as possible from the bowling green
iii) Orientating the wicket such that most big hits do not go in the direction of the Bowling Green. Not easy given that the end changes each over, and some batsmen are so discourteous as to bat left handed, but I do know of one ground where evening cricket is played from the one end so as to keep the Bowling Green directly behind the wicket at all times.
iv) Notices and signs warning of the risk
v) Arranging fixtures so that “high risk” cricket matches such as mens’ 20/20s, do not coincide with bowling matches
vi) Ensuring protection of glass windows
Under the OLA the extent of the duty is to do that which is reasonable, an Occupier is not required to eliminate all risk. A club which has taken steps such as those set out above is unlikely to be found liable in the event of an accident. It is also worthy of note that under the OLA the Occupier is required to consider the nature of the Visitor, and if the typical lawn bowler is elderly and not so sprightly in being able to dodge a cricket ball then this needs to be taken into account in the level of protection offered.
Amateur sports clubs are generally run by commendable community minded people. I have nothing but admiration for the people who give up their spare time to run clubs which benefit their communities by providing social activities and participation in sports. I hope the steps set out above (you may be able to think of more) assist in avoiding accidents or, if an accident does occur, at least knowing that they did what they reasonably could have done and are unlikely to be successfully sued.
From an injured persons point of view, in the event of an accident, the Claimant should consider what if any steps the club had taken to mitigate the risk. Evidence will be required to satisfy the Court that the risk was foreseeable. Amateur cricket clubs are unlikely to keep records of how many 6s have been hit in a particular direction, but evidence from other bowlers of previous balls hit onto the green causing near misses or accidents should be sufficient to satisfy the Court of a foreseeable risk of harm which should have been guarded against.
As an aside, might a cause of action accrue against umpires? Under Law 2 of cricket the Umpires are in control of the game and under r2.8.2 are required to immediately suspend play, or not allow play to start or recommence if either umpire considers that conditions are either dangerous or unreasonable. Dangerous is defined in Law 2.7.2 as actual and foreseeable risk to a player or umpire (my italics). So under the laws of cricket, the Umpires’ duty of care does not extend beyond the field of play, and although I cannot find any reported caselaw I understand that there have been cases of Umpires being sued by players who have been injured in dangerous conditions (one in Birmingham is reported online). Whilst no duty arises under the laws of the game, of course this does not mean that no legal duty arises. Going back to first principles and Lord Atkins’ famous question ‘Who is my neighbour’ in Donoghue v Stevenson it seems to me that a persuasive argument might be put that Umpires in control of the game have a duty of care to those in proximity to the pitch. For practical purposes, however, suing an Umpire is unlikely to be an attractive proposition for a Claimant. Firstly the umpire may not be backed by Insurance (albeit I understand some umpires do have Insurance), unlike the Sports club backed by public liability insurance. Also, the umpire is likely to have the Court’s sympathy, typically an older former cricketer doing the job for love of the game and a little bit of money. Frankly, only in an extreme case where an umpire has shown a flagrant and obnoxious disregard for others’ safety would I expect a Court to find an Umpire liable.
As a specialist personal injury practitioner, if you are a cricket club being sued, or alternatively have had the misfortune to have been injured by an errant ball, or for any other personal injury matter, then feel free to contact me through my clerk Neil McHugh at 7 Harrington Street, Liverpool.
Pleading Impecuniosity
Opoku has been widely reported however the more recent case of Zurich v Umerji [2014] EWCA Civ 357 also has significant implications for impecunious credit hire Claimants. r16PD8.2(8) has been a part in the CPR since its inception and reads;
“The claimant must specifically set out the following matters in his Particulars of Claim where he wishes to rely on them in support of his claim … (8) any facts relating to mitigation of loss or damage.”
In Zurich the Court of Appeal held that a claim for credit hire is a claim for expenditure reasonably incurred in mitigation of the primary loss, i.e. the loss of use. Footnote 2 of Zurich v Umerji [2014] EWCA Civ 357 states;
“Para. 8.2 (8) of the Practice Direction reads rather oddly in the light of the well-established principle that the burden of proof on the issue of mitigation is on the defendant (see McGregor on Damages, 18th ed., para. 7-019); and we were told by both counsel that in this field it is not generally observed. I can see that it is hard on a claimant to expect him to anticipate and rebut points made about avoidable loss: it seems obviously preferable that he should plead his primary loss, wait and see what criticisms are made, and then if necessary plead to those criticisms by way of Reply. But the position is different in the case of a claim for expenditure reasonably incurred in mitigation of the primary loss. In such a case the claimant should plead his case as to reasonableness, including any assertion of impecuniosity: see para. 37 below.”
Para 37 of the Judgment states;
“A claim for the cost of hire of a replacement vehicle is, strictly, a claim for expenditure incurred in mitigation of the primary loss, namely the loss of use of the damaged vehicle: see the speech of Lord Hope in Lagden v O'Connor at para. 27 (p. 1077H). The burden is thus on the claimant to prove (and therefore plead) that such expenditure was reasonably incurred: see the authorities reviewed by Sir Mark Potter P in Beechwood Birmingham Ltd v Hoyer Group UK Ltd [2011] QB 357, at paras. 25-28 (pp. 367-8). There is no doubt a grey area about how much needs to be pleaded and proved to establish reasonableness before the evidential burden shifts to the defendant to show that the expenditure was unreasonable. But in this kind of case it is clearly right that a claimant who needs to rely on his impecuniousness in order to justify the amount of his claim should plead and prove it. I note in this connection that the Claimant's advisers plainly thought that it was incumbent on him to address the point in his witness statement, which was served at an early stage in the proceedings: see para. 13 above.”
Defendants are increasingly seeking to contend that the Claimant cannot rely on impecuniosity and is therefore limited to spot hire rates (or shorter period of hire / no hire at all) where the Claimant’s case as to the reasonableness of hiring on a credit basis is not fully set out in the Particulars of Claim. It's now at best very risky and probably wrong when pleading a credit hire case simply to leave it at “The Claimant was impecunious at the time of the hire”. I’ve changed my template for credit hire impecuniosity pleadings to;
"The Claimant needed a vehicle whilst his own vehicle was unroadworthy by reason of the accident. The Claimant was impecunious at the time of the accident and throughout the period of hire. As a result of the Claimant’s impecuniosity the Claimant was not in a financial position either to hire a replacement vehicle on the spot hire market or to [purchase another vehicle / have his own vehicle repaired*]. The Claimant’s financial position was such that his only reasonable means of replacing his vehicle whilst it was unroadworthy was to hire a replacement vehicle on a credit hire basis."
*delete as appropriate
I’d advise anyone pleading impecuniosity for credit hire purposes to do likewise.
