ABSTRACT
Illegality can affect a claimant’s claim in a number of ways. It may bring into play the principle ex turpi causa non oritur actio (no action arises out of an illegal cause) which in turn may be seen as part of the more general principle that ‘no one should be allowed to take advantage of his own wrong’. Thus, where a gang of bank robbers engage in a robbery and one of them is injured as a result of the careless driving of the getaway driver, the injured robber will probably not have an action against the driver.110 But what if one of the robbers viciously assaults another in an argument over the stolen money? Again the unlawful nature of the whole enterprise may well act as a bar to any action.111 But much may depend upon the nature of the illegality and the surrounding circumstances: if the unlawful behaviour is only incidental to the claimant’s cause of action, the court may ignore the illegality. Accordingly, one test is whether the action arises directly out of the illegal cause. In Pitts v Hunt,112 two youths, plaintiff and defendant, were riding a motor cycle in a highly dangerous manner with the result that it collided with a car injuring the plaintiff. The defendant, the driver of the bike, had no licence or insurance and was drunk while at the controls; the plaintiff, his passenger, had not only also been drunk but had actively encouraged the dangerous driving. The Court of Appeal held that the passenger was not entitled to recover damages from the driver. Would the result have been the same if the passenger, although having knowledge of the absence of licence and insurance, had nevertheless pleaded with the driver to go carefully?
