#19873 - Illegality - Tort Law

Illegality

It used to be if the claimant has done something illegal, they can’t claim. Patel v Mirza has made this confusing. Consider the following scenarios:

• Convicted rapist. C suffers a head injury because of D’s negligence causing C’s personality to change C rapes T. C is sent to prison. C wants to sue D for loss of liberty

• Sued Rapist. Same as above but instead T sues C for the rape and C sues D for compensation to pay T.

• Injured Burglar. C makes 5m/year from burglaring is negligently run over by D and can no longer burgle. Sues D for loss of earnings.

• Injured Refugee. C claims asylum in the UK. While C’s application’s considered, C can’t work a job. C does anyway. C is injured because of D’s negligence. C sues D for injuries and loss of earnings.

• Injured prostitute. C earns 100k/year from prostitution. D injures C so she can no longer be a prostitute. C sues for loss of earnings.

• Joint Criminal Venture. D and C attempt to open a safe using explosives. D carelessly drops the bombs and C is injured in an explosion. C wants to sue D for the injuries.

• Excessive force. C tries to grab D’s handbag. D shoots C to make him let go. C wants to sue D for the injuries.

• Stolen handbag. C’s arrested with stolen handbags. Police are unable to trace the owner of the handbag so C demands them returned. Police refuse. C wants to sue the police for the value of the stolen goods.

• Stolen crack. C has some crack. D steals and snorts it. C sues D for the street value of the crack.

The law before Patel v Mirza

In Gray v Thames Trains, Lord Hoffmann differentiated between a wider and narrower defence of illegality. Narrower = you can’t recover damages which is a consequence of a sentence imposed on you for committing a criminal act. This means there isn’t a conflict between civil and criminal law. Wider = you can’t recover damages which is the consequence of your own criminal act.

Nayyar v Denton Wilde Sapte – defence of illegality can be used for immoral acts too.

Patel v Mirza

Lord Toulson came up with a new test for illegality. 1) Would allowing C’s claim allow C to profit from her wrongdoing, or result in the law becoming incoherent and self-defeating? If the answer is yes, move onto 2) Would denying the claimant’s claim a. undermine the point of the relevant statute, or b. render some other relevant public policies less effective, or c. have a disproportionate effect on the claimant given the seriousness of C’s unlawful conduct?

If the answer to 1) is yes and 2) is no, Lord Toulson would have the claim dismissed on the grounds of illegality.

Why’s this a problem?

Patel was a criminal case, but Lord Toulson said illegality test should be applied to all private law cases.

Jay J disagreed in Henderson v Dorset Healthcare University NHS Foundation Trust. He said Lord Toulson’s test was obiter so he was still bound to follow the...