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Pitts v Hunt and Another

[1991] 1 QB 24; [1990] 3 WLR 542; [1990] 3 All ER 344; [1990] RTR 290; (1990) 134 SJ 834

NEGLIGENCE, ROAD TRAFFIC ACCIDENT, CONTRIBUTORY NEGLIGENCE, EX TURPI CAUSA, JOINT ILLEGAL ENTERPRISE, DEFENCE OF ILLEGALITY

Facts

The plaintiff was the pillion passenger on a motor cycle, involved in a collision with a vehicle driven by the second defendant, which resulted in the death of the motor cycle rider and serious injuries for the plaintiff. The plaintiff and the rider had been drinking before the accident and the plaintiff knew that the rider did not have a motorbike licence and insurance. The plaintiff was also encouraging the rider to drive recklessly. The plaintiff brought and action in negligence against the driver of the other vehicle and the first defendant, who was the deceased rider’s personal representative. The Queen’s Bench outright dismissed the claim against the second defendant and dismissed the claim against the first defendant, on grounds that the plaintiff was contributory negligent to the extent of 100 per cent. The plaintiff appealed the decision in regards to the first defendant.

Issue

(1) Does the rider of a motor bike owe a duty of care to their passengers when they are equally drunk and reckless?

(2) Does s. 148(3) Road Traffic Act 1972 preclude reliance on the defence of illegality?

Held

The appeal was dismissed.

(1) The plaintiff’s action arose directly ex turpi causa (out of his own illegal act) and therefore, he is prevented from recovering compensation from the first defendant.

(2) The words “agreement and understanding” in s. 148(3) Road Traffic Act 1972 do not contemplate an illegal agreement to carry out an illegal purpose and therefore, the section does not preclude reliance on a defence of illegality where the parties had expressly or tacitly agreed to engage in a joint illegal venture.


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