illegality

Question 1

In tort law, at what point do defences become a relevant consideration?

Answer 1

Defences only become relevant after a tort or breach of contract has been established.

Question 2

Who bears the burden of proving a defence in a tort claim?

Answer 2

It is for the defendant to prove a defence.

Question 3

What is the standard of proof for a defendant seeking to establish a defence in tort?

Answer 3

The defendant must prove the defence on the balance of probabilities.

Question 4

What is the Latin name for the defence of illegality?

Answer 4

Ex turpi causa non oritur actio.

Question 5

What is the literal meaning of the Latin phrase ‘ex turpi causa non oritur actio’?

Answer 5

No action may be based on an illegal cause.

Question 6

If the defence of illegality is successfully established, what is its effect on the defendant’s liability?

Answer 6

It is a complete defence, completely removing liability.

Question 7

What is the central public policy rationale for the defence of illegality?

Answer 7

To avoid inconsistency and disharmony in the law, which would harm the integrity of the legal system.

Question 8

In Gray v Thames Trains, what condition did the claimant suffer from as a result of the defendant’s negligence?

Answer 8

The claimant suffered from Post-Traumatic Stress Disorder (PTSD).

Question 9

What crime was the claimant in Gray v Thames Trains found guilty of?

Answer 9

He was found guilty of manslaughter after killing a pedestrian in a road rage incident.

Question 10

Why did the House of Lords in Gray v Thames Trains bar the claimant’s claim for losses suffered during his detention?

Answer 10

To allow the claim would be inconsistent with the sentence of the criminal court.

Question 11

In Delaney v Pickett, what was the illegal act being committed at the time of the negligent driving?

Answer 11

The claimant and defendant were transporting a large quantity of cannabis.

Question 12

Why was the defence of illegality rejected in Delaney v Pickett?

Answer 12

The criminal activity was incidental to the negligent driving and did not cause the accident.

Question 13

Which 2016 Supreme Court case is the current leading authority for the defence of illegality?

Answer 13

Patel v Mirza [2016] UKSC 42.

Question 14

The principles for illegality from Patel v Mirza apply to which three types of claims?

Answer 14

Breach of contract, tort, and unjust enrichment.

Question 15

What was the specific illegal purpose of the contract in Patel v Mirza?

Answer 15

The parties were pursuing ‘insider dealing’ by betting on share prices using inside information.

Question 16

What is the first step when considering the defence of illegality?

Answer 16

To determine if the claimant has committed an illegal or possibly grossly immoral act.

Question 17

In the case of _____, the defence of illegality was successful where the claimant was injured during an escape from a burglary.

Answer 17

Ashton v Turner [1981] QB 137

Question 18

According to Patel v Mirza, what is the underlying policy question to be answered when considering the illegality defence?

Answer 18

Whether allowing recovery would produce inconsistency and disharmony in the law, causing damage to the legal system’s integrity.

Question 19

What is the first of the ‘trio of necessary conditions’ from the Patel v Mirza test?

Answer 19

The underlying purpose of the prohibition transgressed and whether that purpose will be enhanced by denial of the claim.

Question 20

What is the second of the ‘trio of necessary conditions’ from the Patel v Mirza test?

Answer 20

Other relevant public policy which may be rendered ineffective or less effective by denial of the claim.

Question 21

What is the third of the ‘trio of necessary conditions’ from the Patel v Mirza test?

Answer 21

Whether denying the claim would be a proportionate response to the illegality.

Question 22

What is one of the non-exhaustive factors for assessing proportionality under the Patel v Mirza test?

Answer 22

The seriousness of the conduct, its centrality to the tort, whether it was intentional, or whether there was a marked disparity in culpability.

Question 23

Which Supreme Court case clarified the application of the Patel v Mirza test in a tortious claim involving mental health negligence?

Answer 23

Henderson v Dorset Healthcare University NHS Foundation Trusts [2020] UKSC 43.

Question 24

In Henderson v Dorset Healthcare, what did the defendant NHS trust admit negligence for?

Answer 24

They admitted negligence in failing to return the mentally ill claimant to hospital.

Question 25

The Supreme Court in *Henderson* held that the illegality defence applied because the losses claimed were a consequence of what?

Answer 25

The losses were a consequence of the claimant's own criminal act of killing her mother.

Question 26

The Supreme Court in *Henderson* confirmed that *Gray v Thames Trains* remained good law and was compatible with the approach in ____.

Answer 26

Patel v Mirza

Question 27

In the *Henderson* case, what were considered the relevant policies for denying the defence of illegality?

Answer 27

Upholding duties of care and providing compensation to victims of torts.

Question 28

In *Henderson*, how was the seriousness of the claimant's conduct assessed for the proportionality test?

Answer 28

Unlawful killing was considered a very serious offence.

Question 29

In *Pitts v Hunt*, the claimant's injury was caused directly by the illegal act of jointly encouraging and engaging in ____.

Answer 29

Reckless driving while intoxicated.

Question 30

Why was the defence of illegality successful in *Pitts v Hunt*?

Answer 30

The claimant’s injury was caused directly by the illegal act, and awarding damages would be an affront to public conscience.

Question 31

The key difference between cases like *Pitts v Hunt* and *Delaney v Pickett* is the _____ of the illegal act to the tort.

Answer 31

centrality (or causal link)

Question 32

How is the illegality in *Delaney v Pickett* described in contrast to the tort of negligent driving?

Answer 32

The illegality (transporting drugs) was merely 'context' or the 'occasion' for the injury, not its cause.