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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hewison v Meridian Shipping Pte & Ors [2002] EWCA Civ 1821 (11 December 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1821.html Cite as: [2002] All ER (D) 146, [2003] ICR 766, [2003] PIQR 252, [2002] EWCA Civ 1821

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM GREAT GRIMSBY DISTRICT REGISTRY
The Hon Mr Justice Morland

		Royal Courts of Justice Strand, London, WC2A 2LL
		11 December 2002

Lord Justice Clarke:

Introduction

1. On 21 December 1995 the appellant suffered serious personal injuries while employed by the first respondents as an AB/crane operator on the cable-laying vessel FLEX INSTALLER which was owned by the third respondents and chartered to the second respondents. At the time of the accident the vessel was berthed at Letrei in France. The appellant was assisting in the hauling in of a gangway and was guiding a wire on to a winch when the gangway suddenly "kicked" up striking the appellant on the side of the head. He claimed damages for negligence and breach of statutory duty under the Employers Liability (Defective Equipment) Act 1969 against all three respondents. Liability was admitted and judgment was subsequently entered against all three respondents with damages to be assessed.
2. One of the heads of damages claimed by the appellant was loss of earnings calculated on the basis that but for the accident he would have continued to work as a seaman/crane operator until his normal retirement age of about 62. He was 35 years of age when the accident occurred. The respondents' case was that it would be contrary to public policy to award damages on that basis because an essential part of the appellant's case that but for the accident he would have continued to earn money as a crane operator is that he would have continued to deceive his employers by fraudulently misrepresenting that he was not suffering from epilepsy, as he had in the past.
3. The question whether he was debarred by public policy from recovering for such loss of earnings was tried by Morland J, who held that he was and made an order to that effect on 5 December 2001. The appellant now appeals to this court from that order with the permission of Hale LJ.

The facts

4. The facts are not in dispute and may be summarised as follows. The appellant was born on 1 November 1959. For a long time before the accident he suffered from idiopathic epilepsy, which is epilepsy where there is no defined underlying cause. He suffered his first grand mal seizure when he was 17 and had a total of three seizures between the ages of 17 and 19. He was treated for his epilepsy with phenytoin, which, as I understand it, is an anti-convulsant and which he took assiduously from the third of the seizures until the accident. As a result of taking the anti-convulsants he had had no epileptic seizure since the age of 19. The doctors agreed that if the accident had not taken place it was 80% likely that he would remain fit free for the remainder of his life and 20% likely that he would not.
5. With the exception of a break between 1978 and 1979, when he worked on building sites (which was the period in which he suffered the three seizures), he always worked at sea in the merchant navy and it is right to say that throughout that period there was no complaint about his work. He was first employed by the first respondent some time between 1989 and 1991. For present purposes it does not matter when.
6. It is not clear what, if any, representation he made to his previous employers, but before the accident he filled in three medical questionnaires issued to him by the first respondent in 1991, 1993 and 1995 respectively. Although we have not seen those forms, it is common ground that he filled them in substantially in the same form as the questionnaire which he completed in 1997. One of the questions on the form was in these terms: "Are you currently taking medication, prescribed or not, injections or on any special diet?" In the 1997 form he answered "cocodamol for headaches, anti-biotics for chest infection ...", but he did not disclose that he was taking anti-convulsants. In answer to the question whether he had ever suffered from "fits, fainting, giddiness or any mental disorder", he answered 'No'. It is common ground that he answered each of the questionnaires of 1991, 1993 and 1995 in the same way.
7. The appellant realised that epilepsy is a condition which prohibits working as a seafarer. At an interview on 22 January 1998 the appellant freely admitted that he knew that that was the case and that he had concealed his epilepsy from his employers since 1978 so as to keep his job in the offshore industry. He knew that he should have disclosed it, although it is fair to say that, as Dr Clarke (who was instructed on behalf of the respondents) observed, in doing so he acted like many other patients with epilepsy.
8. Further, it was a term of his contract of employment with the first respondent that he declare all prescribed drugs every time that he went on board a vessel. Yet on no occasion that he went on board did he declare that he was taking anti-convulsants. That is so, even though he was taking the drugs three times a day and had been doing so for over 15 years before the accident.
9. The accident occurred on 21 December 1995. As a result of the accident, the appellant sustained a serious maxillo-facial injury and also a head injury, but without loss of consciousness. He was taken to hospital and while there suffered an epileptic seizure when he was asleep. That seizure was caused by the accident. He thereafter remained off work for some 15 months but returned to work with the first respondent in the spring of 1997. It was about that time that he filled in the medical questionnaire to which I have referred. He again misrepresented his medical condition. He resumed working in the same capacity as before but again he did not tell his employers about his epilepsy in general or the fit sustained after the accident in particular.
10. One afternoon in June 1997, while he was aboard a helicopter being taken to work in Norway, the appellant suffered a grand mal seizure. There was no immediate reason for the attack since the appellant had not forgotten to take his anti-convulsant tablets. He was transferred to hospital in Stavanger, where he stayed for a few days before being flown home. When he saw Dr Clarke on 7 January 1999 he told him that he suffered three further attacks after June 1997; one a short time thereafter, the second several months before and the third a week before the consultation.
11. All the seizures which he suffered after the accident were caused by it. Mr Todd, who was instructed on behalf of the claimant, said that the accident was responsible for the development of further seizures in a man who was vulnerable because of the pre-existing epilepsy, albeit that he had had no seizures while on treatment with anti-convulsants for more than 15 years before the injury.
12. When the first respondents learned of the appellant's history of epilepsy, which they did in January 1998 when he fully admitted his condition in the course of an interview, they terminated his employment as they were entitled to do. As I understand it, until his employment was terminated, he received either sick pay or his ordinary earnings. He was not, however, able thereafter to return to sea because his epilepsy was now known. He subsequently obtained employment as a debt collector for which he uses his car. I should note in this regard that the appellant had not disclosed to the DVLA that he was an epileptic, although it is clear from Dr Clarke's evidence that that too is not uncommon among those suffering from epilepsy. One of the oddities of the case is that, but for these further epileptic fits, the accident would not in fact have physically prevented him from continuing to work as an AB/crane operator.

The judgment

13. The judge expressed the view that the appellant was in flagrant and deliberate breach of his obligations to his employers in failing to disclose his epilepsy. He further said this in paragraph 9:

"While I have every sympathy for the claimant, a hard working man, he was continuously deceitful in order to obtain and keep his job offshore. It is greatly to his credit that he has now obtained regular employment as a debt collector albeit at a lower level of income than when a merchant seaman crane operator."

14. In paragraph 11 the judge held that when the appellant declared that he had never had a fit in order to obtain or keep his job at sea, he was guilty of the criminal offence of obtaining a pecuniary advantage by deception, within the meaning of section 16 of the Theft Act 1968,which provides:

"(1) A person who by any deception dishonestly obtains for himself or another any pecuniary advantage shall on conviction on indictment be liable to imprisonment for a period not exceeding 5 years.

(2) The cases in which a pecuniary advantage within the meaning of this section is to be regarded as obtained for a person are cases where ...

(c) he is given the opportunity to earn remuneration or greater remuneration in an office or employment, or to win money by betting."

15. The judge held that the decision of this court in Hunter v Butler [1996] RTR 396 was directly in point and distinguished both the New Zealand case of Le Bagge v Buses Ltd [1958] NZLR 630 and the Australian case of Mills v Baitis [1969] VR 583. I shall return to those decisions below.
16. The judge expressed his conclusions in this way:

21. "The claimant was guilty of deliberate and continuous deceit. On each medical examination in answer to a specific question he gave a positive lying answer. He repeatedly committed the criminal offence of obtaining a pecuniary advantage by deception which is punishable by 5 years imprisonment. The gravity of his deceit is exemplified by the fact that the ship owners required biennial medial examinations. A seaman who may have an epileptic attack is endangering the lives of others particularly when operating a crane or winch. He is putting at risk fellow crew members and dock workers and cable laying divers.

22. The claimant's situation aboard ship is wholly different from that of someone who has some physical disability or medical condition which will not foreseeably endanger anyone at his place of work. The claimant would never have been employed as an able bodied seaman crane driver but for his criminal deceit.

23. In my judgement public policy does require me to declare that the claimant is not entitled to base any loss of earnings claim on the earnings that he would have had as a seaman nor is he entitled to damages for loss of his congenial sea-going career and of free board and lodging when aboard ship."

The appellant's case

17. As advanced in argument by Mr Jeffrey Burke QC, the appellant's case may be summarised in this way:

i) The starting point should be that a claimant injured by the admitted tort of another is entitled to such financial compensation as to put him back into the position he would have been in had the accident not occurred.

ii) On the basis of the agreed conclusions of the doctors it was more probable than not that, if he had not been seriously injured by the respondents' admitted negligence, the appellant would have continued working competently and in a skilled manner as a merchant seaman until his normal retirement age.

iii) In order to displace that approach on the grounds of public policy the court must be satisfied that properly to compensate the appellant would affront ordinary citizens.

iv) The ordinary (and fundamental) principles of compensation should only be displaced in exceptional circumstances and on the clearest grounds.

v) No such circumstances or grounds exist here, where the effect of the judge's order is to reduce the value of the claim by some £300,000 from about £400,000 to about £100,000. Figures of that order have been agreed between the parties. The figure of £400,000 itself reflects a discount in order to have regard to two matters. The first is the doctors' agreement that there was a 20% chance of the appellant suffering an epileptic seizure during his lifetime and the second is to reflect the risk that the fact of his epilepsy might otherwise be discovered before retirement. In either such event he would not have been able to continue as an AB/crane operator until retirement.

vi) In a case where (if the accident had not happened) the appellant would in all probability have continued working as a seaman into his 60s with no epileptic symptoms in the whole of that period, it would be an affront to the public that he should not be fully compensated merely because he did not tell the respondents the truth.

vii) None of the cases supports the conclusions reached by the judge. In particular this case is to be distinguished from a case where a claimant is founding his claim on the basis of the proceeds of crime.

viii) Although the appellant did obtain his employment as a seaman by deceit in failing to declare epileptic symptoms which last occurred some 10 years before he even joined the respondents, the employment itself was lawful. The earnings which formed the basis of his loss of earnings claim were derived from the lawful work he performed, and performed well, for the respondents and was work from which the respondents derived benefit and full value.

ix) The contract of employment was not, in itself, unlawful. The respondents could not, as a matter of law, have refused to pay the appellant the earnings which his work merited.

x) Not only was the claim in respect of lost earnings in respect of work properly performed and not in respect of the proceeds of crime, but the claim did not require, or involve, enforcement of the contract of employment between the appellant and the respondents.

xi) It was not suggested that the appellant did not believe that, as long as he conscientiously took his medication, as he always did, he would not have suffered from any epileptic symptoms which would have affected his employment.

xii) Although the judge held in paragraph 22 of the judgment quoted above that the appellant's situation was wholly different from that of someone who has some physical disability or medical condition which will not foreseeably endanger anyone at his place of work, it was common ground that the appellant, having been free of epileptic fits for a period of more than 12 months, would have been able to, and did, hold a driving licence and that he was able to drive his car without restriction.

xiii) Epilepsy is not uncommon. The failure to disclose epilepsy in a work context is also not uncommon: see the opinion of Dr Clarke. If the basis of public policy is foreseeability of endangering others, logically a claimant in the same circumstances should also be debarred from recovering damages based upon the loss of earnings from a job which involved driving and perhaps even damages or personal injuries sustained while driving. He should in principle also be debarred from recovering damages based on his loss of earnings from a job to which he has to drive. The argument that claimants may be foreseeably endangering someone must also apply to the risk that an epileptic could have an epileptic attack while at the wheel of a car. In the instant case the appellant's present employment requires him to drive.

xiv) The judge erred in finding that the appellant was guilty of a grave deceit. Although the offence of obtaining a pecuniary advantage by deception is punishable by a maximum of 5 years imprisonment, the reality of the appellant's situation is reflected by the likelihood that, if convicted of such an offence, the penalty imposed would be modest and certainly not involve imprisonment.

xv) The judge was wrong to hold that the case of Hunter v Butler was directly in point. It is clearly distinguishable from the appellant's case.

xvi) The tenor of the judge's judgment indicates that the judge made a subjective moral judgment. It cannot be said that the appellant's claim for damages contravenes any of the "the fundamental principles essential to any just and civilised society which provide the rails within which the unruliest horse may safely run" (per Waite LJ in Hunter v Butler at p 403E).

xvii) The appellant's earnings were not tainted in the same way as illegitimately obtained state benefits or the proceeds of crime in Hunter v Butler, in which Waite LJ said (at p 403G):

"When Lord Wright in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 spoke (at page 617) of "damages proportioned to the injury" for which provision is made by what is now section 3(1) of the Act of 1976 as being "a hard matter of pounds, shillings and pence, subject to the element of reasonable future probability", the pounds of which he spoke were those derived from wages honestly earned or income honestly received."

Any wages earned by the appellant as a result of employment as a seaman would be "honestly earned".

xviii) The cases of Le Bagge and Mills are of assistance in highlighting the error made by the judge in reaching the conclusion that he did. Winneke CJ in the Supreme Court of Victoria said in Mills (at p 583):

"In a case like the present where the respondent has suffered a proved loss in connection with an occupation which, although followed in a place forbidden by law, is in itself quite lawful, it would be artificial in the extreme and reminiscent of mid-Victorian hypocrisy to deny him the aid of the law to recover such loss from the apparent wrongdoer on the hypothesis that the general welfare of the state would be thereby advanced."

xix) Although the appellant obtained his occupation by deceit, the occupation itself was lawful. If the judge's decision is correct, the appellant is denied the aid of the law to recover his proved and agreed losses from the admitted wrongdoer and the respondent who has the benefit of his work and caused the undisputed loss of the appellant's working ability has obtained a wholly unmerited windfall.

xx) In Mills Gowans J said (at p 590):

"The public interest is not concerned to relieve the defendant wrongdoer. It directs its concern to the question of the deprivation of the plaintiff wrongdoer. Where the plaintiff's wrong-doing has had no causal connection with the defendant's wrong-doing which has caused the damage, it is less probable that the purpose of the law will be to treat the plaintiff's wrong-doing as affecting the plaintiff's relief, than where there has been a causal connection."

xxi) There are a number of cases in which an injured claimant has recovered damages for loss of undeclared earnings, less of course the tax properly payable: see eg Duller v South East Lincs Engineers [1981] CLY 577.

xxii) The decision to deprive the appellant of his damages does not advance the welfare of the state. There is only one victim in the present case and that is the appellant. There is no causal connection between the appellant's wrong-doing and the admitted tort of the respondents. The respondents, by this decision, are substantially relieved of the burden of paying the appellant damages for their admitted tort, whereas the appellant is being substantially deprived of his compensation.

xxiii) The justice of the case is met by reducing the amount recoverable in respect of loss of earnings by 20%, as agreed.

xxiv) In all the circumstances the judge erred in law in deciding that public policy required him to disallow the appellant's claim for damages on the basis of his employment as a merchant seaman. In short, to fail to disclose his epilepsy was wrong but understandable and was not offensive to public morality.

The respondents' case

18. Mr Richard Davies QC submitted on behalf of the respondents that the judge was right essentially for the reasons he gave. His submissions may be shortly summarised in this way.

i) The correct test as to whether public policy should prevent the appellant from recovering loss of post-accident earnings is whether the illegality in question comes within or outside the rails within which "the unruliest horse may safely run". The judge cited that test in his judgment and applied it to the facts.

ii) In the course of oral argument Mr Davies first stated the test as follows. Public policy requires that the court should not assist a person to recover the financial consequences of his crime or immoral act, especially where it is an inescapable, irreducible and fundamental plank of his case for future loss that he would deceive his employers for the rest of his career, subject only to the possibility of detection.

iii) In the course of argument that proposition was refined to reflect the approach of Hobhouse LJ in Hunter v Butler. As so refined, the proposition is that where a claimant can only earn post-accident earnings by deceiving his employers, and in particular by committing an offence under section 16 of the Theft Act 1968, public policy will prevent him from relying upon his own deception and criminal act and thus will prevent him from recovering the loss of the earnings concerned.

iv) The conduct of the appellant before the accident did not amount to a minor indiscretion. It was a deliberate act, practised in the certain knowledge that to tell the truth would mean that employment at sea would never be obtained or maintained. It was not practised just once but was repeated on each occasion that the appellant answered questions about his medical condition or, indeed, went on board a vessel. In the former case the appellant made a fraudulent misrepresentation whereas in the latter case he dishonestly concealed the fact that he was regularly taking anti-convulsant medicine.

v) As the appellant must have appreciated, it was a deceit that potentially put lives at risk in an environment which was already dangerous enough. Moreover it amounted to a serious criminal offence.

vi) The judge's conclusions in this regard were correct.

vii) While it is true that the appellant was lawfully able to drive a car for personal use after being free from seizures for a year, his condition would debar him from driving a public service vehicle, a mini-bus or a vehicle over 3.5 tonnes under section 92(2) of the Road Traffic Act 1988 and the relevant Motor Vehicles (Driving Licences) Regulations, under which 10 years must elapse without an epileptic attack and without the taking of any epileptic medication before such driving is permitted.

viii) There is a clear distinction between the conduct of the appellant and that of the claimants in the Le Bagge and Mills cases upon which the appellant relied.

ix) The appellant's illegal act struck at the root of his contract of remuneration. In particular:

(a) It was an absolute and essential pre-requisite of the appellant obtaining and retaining his contract of employment as an AB/crane operator that he continually committed the deception.

(b) The appellant has to rely upon that deception in order to be able to enforce his contract of employment. The appellant was in repudiatory breach of that contract and the first respondents had an unassailable right to treat the contract as discharged upon discovery of the breach, which the first respondent exercised on learning of the true position. The same was not true in the cases relied upon by the appellant.

x) The fact that the appellant would have done work in return for remuneration is irrelevant. In particular:

a) The appellant is not claiming in respect of work that he has in fact done because he was paid at the relevant contractual rate for work in fact carried out. He is claiming for work that he would have done but for the accident.

b) He was only lawfully entitled to his earnings for work done for so long as the contract continued in existence. As the appellant well knew, the first respondent would treat the contract as terminated as soon as the deception was exposed.

c) The crucial point is that the appellant cannot prove that he would have earned money as an AB/crane operator without expressly or by necessary implication asserting that he would have deceived his post-accident employers by the commission of criminal offences throughout the period of employment or future employment relied upon.

xi) In a case like Duller, by ensuring that an appropriate adjustment is made for failure to pay tax, the court can ensure that the claimant does not profit from his unlawful activity. No such adjustment is possible here.

Discussion

19. In many ways I have considerable sympathy for the appellant. At all relevant times he suffered or potentially suffered from epilepsy, although it could be kept under control by his taking appropriate anti-convulsant drugs. After suffering three seizures before he was 20 he took those drugs and, as a result, did not suffer any epileptic seizure for over 15 years before the accident . He had no reason to think that he would do so, provided that he continued to take the drugs. He suffered an injury while working for the respondents which was not only not his fault but was their fault. As a result he suffered serious facial injuries and was taken to hospital. He was off work for 15 months. Some time after he returned to work he suffered an epileptic seizure as a result of the accident, albeit contributed to by his pre-existing epilepsy. But for the accident he would have continued to work as an AB/crane operator until retirement so that it can fairly be said that the accident (and thus the respondents' negligence or breach of duty) caused the loss of earnings which he claims.

The legal principles

20. I entirely accept Mr Burke's submission that the starting point should be that a claimant injured by the admitted tort of another is entitled to such financial compensation as to put him back into the position he would have been in had the accident not occurred. It is common ground that, if that principle alone is applied to the facts of this case, the appellant is entitled to recover the whole of the loss of earnings which he claims and which amount to a sum of the order £400,000.
21. The question which arises in this case is whether there is a principle of public policy which prevents the appellant from recovering his post-accident loss of earnings as an AB/crane operator on the ground that in order to earn those sums he will have to deceive his employers. There are undoubtedly some circumstances in which public policy will prevent a claimant from being awarded sums which he would otherwise recover. The question is what those circumstances are and whether they apply to the facts of this case.
22. The appellant's case was advanced first by Mr Burke QC and then, when Mr Burke was forced to leave for urgent family reasons, by Mr Stephen Killalea. I would like to pay particular tribute to Mr Killalea who took over from Mr Burke in the course of the argument and put the appellant's case with conspicuous ability. The approach which they advanced was, as indicated above, to ask the question whether recovery of the loss of earnings would be an affront to ordinary members of the public. They then stressed all the positive aspects of the appellant's behaviour and submitted that in all the circumstances it would indeed be an affront to the public if the court were to deprive the appellant of his full loss of earnings. There is undoubted force in that approach but, when pressed, they were unable to point to any authority for the proposition that the relevant test of public policy is whether it would be an affront to the public to deprive the appellant of part of his loss.
23. I have reached the clear conclusion that that is not the relevant principle. Indeed such authority as there is seems to me to be to the contrary. Thus in Clunis v Camden and Islington Heath Authority [1998] QB 978 the claimant argued that he would not have committed manslaughter but for the defendant's negligence. This court struck the action out as being contrary to the rule of public policy embraced in the latin maxim ex turpi causa non oritur actio. The court rejected the submission that the maxim did not apply to causes of action founded in tort and that the plaintiff's cause of action did not arise from the manslaughter.
24. Beldam LJ, giving the judgment of the court, said (at pp 986 to 987):

"The rule stated by Lord Mansfield CJ in Holman v Johnson (1775) 1 Cowp 341, 343, was a rule of public policy that: "No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act." The question in that case arose on a claim for goods sold and delivered, but Lord Mansfield CJ did not confine his principle to such cases.

We do not consider that the public policy that the court will not lend its aid to a litigant who relies on his own criminal or immoral act is confined to particular causes of action. Although Mr Irwin asserted that in the present case the plaintiff's cause of action did not depend upon proof that he had been guilty of manslaughter the claim against the defendant is founded on the assertion that the manslaughter of Mr Zito was the kind of act which Dr Sergeant ought reasonably to have foreseen and that breaches of duty by the defendant caused the plaintiff to kill Mr Zito. Further the foundation of the injury, loss and damage alleged is that, having been convicted of manslaughter, the plaintiff will in consequence be detained under the Mental Health Act 1983 for longer than otherwise would have been. In our view the plaintiff's claim does arise out of and depend upon proof of his commission of a criminal offence. But whether a claim brought is founded in contract or in tort, public policy only requires the court to deny its assistance to a plaintiff seeking to enforce a cause of action if he was implicated in the illegality and in putting forward his case he seeks to rely upon the illegal acts."

25. A little later Beldam LJ considered a submission that the test was whether the result in a particular case would be acceptable to "the public conscience". He said this at (pp 988 to 989):

"He [ie counsel for the plaintiff] urged the court to say that, where the degree of responsibility was diminished by reason of mental disorder, the court should not apply the maxim. He prayed in aid in this regard a test which this court has adopted in other cases between 1986 and 1994, namely whether the result in a particular case would be acceptable to "the public conscience".

In Tinsley v Milligan [1994] 1 AC 340 Lord Goff of Chieveley, Lord Keith of Kinkel and Lord Browne-Wilkinson regarded such a test as unsatisfactory. Lord Goff preferred to accept the reason for the rule stated by Ralph Gibson LJ [1992] Ch 310, 334 in the Court of Appeal in that case that, in so far as the maxim is directed at deterrence, the force of the deterrent effect is in the existence of the known rule and its stern application. Lord Goff said, at p 363.

"But, bearing in mind the passage from the judgment of Ralph Gibson LJ which I have just quoted, I have to say that it is by no means self-evident that the public conscience test is preferable to the present strict rules. Certainly, I do not feel able to say that it would be appropriate for your Lordships House, in the face of a long line of unbroken authority stretching back over 200 years, now by judicial decision to replace the principles established in those authorities by a wholly different discretionary system."

Lord Browne-Wilkinson said at p 369:

"My Lords I agree with the speech of my noble and learned friend, Lord Goff of Chieveley, that the consequences of being a party to an illegal transaction cannot depend as the majority in the Court of Appeal held, on such an imponderable factor as the extent to which the public conscience would be affronted by recognising rights created by illegal transactions"

In the present case the plaintiff has been convicted of a serious criminal offence. In such a case public policy would in our judgment preclude the court from entertaining the plaintiff's claim unless it could be said that he did not know the nature and quality of his act or that what he was doing was wrong."

26. As can be seen from those passages, the courts have not adopted the suggestion that, at any rate in a case where the maxim ex turpi causa non oritur actio applies, the correct approach is to identify whether the public conscience would be affronted. We have been shown no case in which the courts have adopted such an approach to a case of this kind. In these circumstances I, for my part, do not think that it is appropriate to adopt it.
27. The correct principle seems to me to be substantially the same as that identified by Beldam LJ as being applicable to cases in which the maxim ex turpi causa non oritur actio applies. It is common ground that that maxim does not itself apply here because it is correctly agreed that there is no principle of public policy which prevents the appellant from pursuing his cause of action for damages for negligence or breach of duty against the respondents. The question is not whether he can recover at all but whether he is debarred from recovering part of his alleged loss.
28. However, as I see it, the principle is closely related. It is common ground that there are cases in which public policy will prevent a claimant from recovering the whole of the damages which, but for the rule of public policy, he would otherwise have recovered. The principle can perhaps be stated as a variation of the maxim so that it reads ex turpi causa non oritur damnum, where the damnum is the loss which would have been recovered but for the relevant illegal or immoral act. A classic example is the principle that a person who makes his living from burglary cannot have damages assessed on the basis of what he would have earned from burglary but for the defendant's negligence.
29. To my mind the authorities support that approach. They seem to me to support the proposition that where a claimant has to rely upon his or her own unlawful act in order to establish the whole or part of his or her claim the claim will fail either wholly or in part. In the present context the principle can be seen from the decision of this court in Hunter v Butler [1996] RTR 396, although it has to be said that the case does give rise to some difficulties of interpretation.
30. In that case the plaintiff was a widow who was claiming as her husband's dependant under section 3 of the Fatal Accidents Act 1976, as substituted by section 3(1) of the Administration of Justice Act 1982. Her husband died in a motor accident which was caused by the defendant's negligence. In assessing her dependency, the plaintiff relied in part on supplementary benefit which her husband had fraudulently claimed in his lifetime and in part upon undeclared wages which he had earned from moonlighting and which the judge held he would have continued to earn but not to disclose had he lived. This court considered whether the plaintiff's dependency could properly include the earnings which the husband would have received from moonlighting. The submission that he could was rejected, as was reliance upon the supplementary benefit which the husband would have received.
31. Both Waite and Hobhouse LJJ gave reasoned judgments and Hirst LJ agreed with both. Waite LJ considered loss of supplementary benefits separately from the case based upon the proceeds from moonlighting. As I read his judgment, he rejected the claim for loss of supplementary benefit on the basis that the plaintiff was, as he put it at page 402K, "in no sense dependent on the deceased". He added: "she no less than he, was dependent in that regard upon the state". As to moonlighting, Waite LJ rejected the claim on two grounds. The first was that the assumption on which it was based, with which we are not concerned, was false. The second was based on public policy. Waite LJ said (at p 403E to H):

"(b) It offends public policy in two respects. First, it assumes that someone who had committed fraud in the past would continue to do so in future; ignoring the possibilities of repentance or detection. Secondly it treats the proceeds of illegally concealed earnings as providing a valid head of recovery by way of damages for loss of injury. When due account is taken of the need for judges to avoid subjective moral judgments and to accept the realities of life in the modern welfare state, there remain certain fundamental principles essential to any just and civilised society which provide the rails within which the unruliest horse may safely run. When Lord Wright in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601, 617 spoke of the 'damages proportioned to the injury' for which provision is made by what is now section 3(1) of the Act of 1976 as being 'a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities' the pounds of which he spoke were those derived from wages honestly earned or income honestly received."

It appears to me that Waite LJ took the view that the proceeds of moonlighting were not "wages honestly earned or income honestly received".

32. Hobhouse LJ said that he agreed with Waite LJ that the appeal should be allowed to the extent proposed. He identified the second issue as being whether the plaintiff was entitled to allege and claim damages on the basis that the deceased would have continue his previous practice (to which she was privy) of fraudulently claiming benefit without disclosing that he was earning. Hobhouse LJ then said this (at pp 404K to 405E):

"(2) Fraud

The deceased had, for a considerable time before his death, been operating in what is called the 'black' economy. He habitually did part-time work for cash and did not pay tax or national insurance contributions upon his earnings. When he lost his full-time employment and moved to Torquay, he continued to take part-time casual employment whenever he could, for example, as a waiter in a restaurant or as a gardener. However, he was by this stage claiming unemployment benefits and supplementary and housing benefit. He could only obtain these benefits by making false statements to the benefits office that he was not earning. He obtained the payments by fraud. This amounted to an offence under section 15 of the Theft Act 1968, as well as under the benefits legislation and, since the plaintiff was, on her own evidence, privy to what he was doing and in receipt of the money so obtained, she too was committing offences under the Theft Act 1968. The present is not a case where the activities of both of them did not involve criminal acts, nor is it one where the criminality was confined to the deceased.

If a plaintiff comes to court and asserts as part of her case that she would have committed criminal acts and bases her claim upon such an assertion, she cannot recover in a court of law on that basis. Here she has claimed a loss of dependency on the basis that the deceased would have paid sums to her which he had to her knowledge obtained fraudulently from the benefits office. This is a stronger case that Burns v Edman [1970] 2 QB 541 where Crichton J held that the innocent wife of a robber could not claim by reference to the loss of 'earnings.' Nor does it raise any of the points discussed in Kemp & Kemp pp 25006 – 7 when either no criminal act has been involved or the plaintiff has not been concerned in any way with the illegality: see Le Bagge v Buses [1958] NZLR 630, 647. Whether and, if at all, to what extent the opinion expressed in Kemp & Kemp can be supported will have to be considered in a case which raises such points.

This principle provides an additional reason why the plaintiff's argument that she could claim a loss of dependency based upon the loss of a combination of undeclared part-time earnings and fraudulently obtained benefit payments must fail."

I note in passing that it is by no means clear that the wife of the robber in Burns v Edman was innocent.

33. Some difficulty was found in the course of argument in reconciling the reasoning of Waite LJ and Hobhouse LJ. However, it appears to me that Hobhouse LJ was adding a further reason to those given by Waite LJ for holding that the plaintiff's dependency should not be based upon either undeclared part-time earnings or fraudulently obtained benefit payments. He seems to have proceeded on the basis that both the benefit payments and the earnings from moonlighting would be recovered as a result of the husband's criminal act to which she was privy. The principle applied by Hobhouse LJ is, as I see it, that stated at page 405 B, namely that:

"If a plaintiff comes to court and asserts as part of her case that she would have committed criminal acts and bases her claim on such an assertion she cannot recover in a court of law on that basis."

That appears to me to be the substantially the same test as that adopted in the ex turpi causa non oritur actio cases, as stated in the passage from the judgment of Beldam LJ in Clunis at pp 986 to 987 quoted above.

34. I am not sure whether it is quite the same principle as that applied by Waite LJ but it does not seem to me necessary to consider that question further because, since Hirst LJ agreed with the judgment of Hobhouse LJ and since the principle just stated is part of the ratio decidendi of Hunter v Butler, we are bound to follow it.
35. As stated above, some reliance has been placed on Waite LJ's reference to fundamental principles "which provide the rails within which the unruliest horse may safely run". Public policy has long been described as an unruly horse: see eg Richardson v Mellish (1824) 2 Bing 229 per Burroughs J at p 252:

"I, for one, protest against arguing too strongly upon public policy; - it is a very unruly horse, and when once you get astride it you never know where it will carry you. It may lead you from the sound law. It is never argued at all but when other points fail."

Public policy is undoubtedly a horse which needs to be kept on a tight rein, but the phrase used by Waite LJ, while undeniably colourful, does not help to determine how to formulate the fundamental principles referred to. It seems to me that for present purposes the relevant fundamental principle is that stated by Hobhouse LJ.

36. The principle applies to a case of this kind, which does not have the complication which sometimes arises in a case where the claim is by a dependent under the Fatal Accident Acts to which particular considerations may apply: see the discussion in Kemp & Kemp at paragraph 25 - 006 to 25 - 008/1. In my opinion Hobhouse LJ must have had in mind a case where the claimant bases his or her claim upon his or her unlawful act in a substantial way. It is not, however, in my opinion sufficient that he or she has been party to some collateral or insignificant illegality or unlawful act. Thus, as Kemp & Kemp put it in paragraph 13 – 080, a claimant is entitled to be compensated for his loss of earnings even though he had in the past failed to disclose them to the Inland Revenue: see Duller v South East Lincs Engineers, an unreported decision of Mr Edwin Jowett QC on 2 May 1980.
37. See also the valuable discussion by Garland J in Newman v Folkes, unreported, dated 5 May 2001, where he said this at paragraph 47:

"In my judgment the reasoning in Duller v South East Lincs Engineers, which was neither cited nor referred to in the judgement in the Hunter v Butler, is plainly correct. In a non-dependence case if the claimant derives income from a lawful source even though there may be a collateral illegality in the performance of the contract (Le Bagge v Buses; St John Shipping Corporation v Joseph Rank Ltd [1957 1 QB 267) he is entitled to rely on the loss of that source of income to found a claim although it may be necessary to make some financial adjustment for unpaid tax and national insurance. If the source of the claimant's income is itself unlawful, for example the proceeds of crime, then the same consideration would apply as in Hunter v Butler, where the plaintiff was equally guilty with her husband of a fraud on the benefit system."

I entirely agree. I also note in passing that the case went to the Court of Appeal, [2002] EWCA Civ 591, but the court was not concerned with that part of the decision.

38. The issue between the parties here is, as I see it, essentially whether the appellant's unlawful act was, as Garland J put it, a collateral illegality in the performance of the contract or, as Hobhouse LJ put it, part of the appellant's case that he would have committed criminal (or at least unlawful) acts but for the accident. As indicated earlier Mr Burke (and indeed Mr Killalea) place some reliance both upon Le Bagge v Buses Ltd and Mills v Baitis.
39. In the New Zealand case of Le Bagge v Buses Ltd the deceased fulfilled a milk contract by delivering seven days a week in contravention of transport regulations which required the driver to have at least 24 consecutive hours' rest in any period of seven days. The claim was by the deceased's widow under the Death by Accident Compensation Act 1952. The relevant question for decision was whether the judge should have directed the jury that it should disregard the earnings of the deceased on the seventh day as being illegal or, alternatively, that he should have directed the jury that the cost of employing labour on the seventh day should be deducted. The Court of Appeal answered both those questions in the negative. It was held that the relevant regulations could not be construed as impliedly prohibiting the contract of carriage which was valid in its formation but was so performed as to contravene some provision of the regulations, applying St John Shipping Corporation v Joseph Rank Ltd [1957] 1 QB 267.
40. Further Cleary J, delivering the reserved judgment of the court, said (at p 647):

"The appellant did not in any way seek to enforce the contract in her action, but merely called it in aid for its evidentiary value as to the earnings of the deceased."

It is submitted that the same distinction can be drawn here on the basis that the appellant is not seeking to rely upon an unlawful contract but merely relying upon a contract which would itself be lawful and calling it in aid for its value as evidence of his loss of earnings.

41. Cleary J added:

"In these circumstances we do not think that any possible ground of public policy called for a positive direction to the jury that as a matter of law they must deduct an amount which the family, in point of fact, have received during the deceased lifetime and would probably have continued to receive had he lived. We think that such infirmity as existed in the appellant's case on this point was sufficiently dealt with by the learned judge when he told the jury that it was proper for them to take into consideration, in the assessment of damages, the possibility that the Regulation would be enforced and that the deceased's income thereby diminished".

It is submitted that a similar approach here would lead to the conclusion that the problem is sufficiently dealt with by the agreement to reduce the sum which otherwise have been awarded by 20% to reflect the possibility that the appellant would not work as a seaman until he reached retirement age.

42. In the Australian case of Mills, in contravention of the Town and County Planning Act 1961, Mills carried out the repair of motor cars. Mills was sitting in a stationary car on a public road when Baitis drove his car into collision with it, injuring Mills. Baitis sought to avoid payment in respect of Mills' loss of earning capacity because of his contravention of the Town and County Planning Act 1961 but failed in his contention. I have already quoted both a passage from the judgment of Winneke CJ at p 583 and a passage from the judgment of Gowans J at p 590.
43. To my mind both those cases are examples of what may be described as collateral or insignificant illegality. In my judgment an English court should not deprive a claimant of part of the damages to which he would otherwise be entitled because of the defendant's negligence or breach of duty by reason only of some collateral illegality or unlawful act.
44. The question as it seems to me is on which side of the line this case falls on the facts.

Application to the facts

45. I have reached the clear conclusion that the judge was right and that the appellant should not be permitted to recover the loss of earnings which he would have received as a result of being employed as an AB/crane driver for the rest of his career. I have reached that conclusion for essentially these reasons:

i) In order to recover such loss of earnings the appellant must prove that but for the accident he would have continued to work in that capacity.

ii) In order for the appellant to be able to continue to work in that capacity he would have to deceive his future employers (whether the first respondent or others) by falsely representing that he did not suffer from epilepsy and by failing to inform them that he was only able to avoid epileptic seizures by taking anti-convulsants.

iii) He would thus have to commit the criminal offence of obtaining a pecuniary advantage by deception, namely the opportunity to make the earnings (the loss of which he is claiming), contrary to section 16 of the Theft Act 1968.

iv) While I accept the submission that the penalty imposed by a criminal court might not be severe (at any rate absent an accident caused by an epileptic seizure), that deception would, in my opinion, be neither collateral nor insignificant. It would not be collateral in the sense used by Garland J in Newman v Folkes but would be central to the continuation of the appellant's future employment as an AB/crane driver and thus to his opportunity to obtain the earnings concerned.

v) It would not be insignificant because of the risks potentially involved to others if a seafarer should have the misfortune to have a seizure while working as, say, a crane operator. Some aspects of a seaman's work are inevitably potentially dangerous. That danger would be much increased if a seaman experienced a seizure at a crucial moment while, say, operating a crane. The judge quoted a passage from a statement made by Mr Slade, who was in effect the first respondent's personnel manager, which includes the following:

"Seafaring is a very hazardous occupation. To conceal both his condition and his use of medication is very serious and dangerous both to himself and his colleagues. For example, if he had suffered a seizure while operating the crane during a sea-bed walk there would have been dreadful consequences, even loss of life."

I agree with those views. Indeed it seems to me that a shipowner or operator who employed a person in the appellant's position as a crane operator, knowing his history and condition, would be exposed to justified criticism and, indeed, potential liability if an accident were to ensue.

vi) In short I accept Mr Davies's submission that the appellant's deception struck at the root of the contract under which he earned remuneration and that it would have done so in the future. In this regard it is I think important to note that this will only be the case where the claimant has deliberately deceived his employers; mere failure to disclose the true facts to an employer is not enough.

vii) I recognise that the appellant had not had a seizure for 15 years and that he was able to keep his epilepsy under control by taking the anti-convulsants and that the doctors have agreed that there was an 80% chance of his being fit free for the remainder of his life, but they also agree that there was a 20% chance of his not being fit free, even if he continued to take the anti-convulsants (as he no doubt would). As I see it, a 20% chance of such a fit was by no means an insignificant chance, even though some reduction of that 20% would have to be made in the context of the appellant's working life.

viii) For the reasons already given I would reject the submission that the question is not whether ordinary citizens might be affronted by a refusal by the court to allow him the full amount of the compensation. However, I am bound to say that it seems to me that ordinary citizens might well be affronted by the notion that a claimant could recover earnings by way of damages which he could only have made by exercising a deliberate deception on employers (with consequent risk to others) and indeed by committing a criminal offence.

ix) I agree with the judge that both Le Bagge v Buses Ltd and Mills v Baitis are distinguishable. In each of those cases the unlawful activity was collateral or insignificant. It was not central to the appellant's claim as it is here.

x) It is true that in the present case there was no causal connection between the appellant's deception and the respondents' negligence but on these facts that is not the point. The point is that the future loss of earnings directly depends upon future deception. In this regard I accept the submission that the focus must be on what would happen in the future and not on what has happened in the past. Thus the question is not whether the appellant was in fact entitled to recover the wages in respect of work actually performed but what he would have to do in order to earn money as an AB/crane operator in the future. The answer is that he would have to deceive his employers and commit the offence of obtaining a pecuniary advantage by deception.

xi) I recognise that this is not a case where the appellant is seeking to recover the proceeds of crime, but as I see it that is only one example of a case in which a claimant is in substance relying upon his own unlawful or immoral act in order to establish a significant part of his claim.

xii) I have considered whether it is possible to meet the problem by simply reducing the recoverable loss of earnings by 20%. I have reached the conclusion that it is not because the effect of doing so is not to apply the principle identified by Hobhouse LJ but merely to reflect the possibility that the appellant's epilepsy might come to light and so prevent him from making the earnings.

xiii) Finally, I accept the submission that this case is distinguishable from cases like Duller and Newman, where the employment is not (or would not be) procured by an unlawful act, but the claimant subsequently fails (or would fail) to pay income tax.

Conclusion

46. In all these circumstances, although (despite the deception) I have sympathy for the appellant, I have reached the conclusion that the application of the principle of public policy identified by Hobhouse LJ in Hunter v Butler leads to the conclusion that the appellant is not entitled to recover the loss of earnings claimed. It is damnum which he should not be permitted to claim because ex turpe causa non oritur damnum. It follows that I would dismiss the appeal.

Postscript

47. Since writing the above judgment I have seen a draft both of Ward LJ's judgment reaching a different conclusion and of Tuckey LJ's response. I have read both with great interest and have reconsidered my own reasoning and conclusion in the light of Ward LJ's analysis. I am not however persuaded that I should reach a different conclusion, essentially for the reasons given by Tuckey LJ. I would therefore dismiss the appeal.

Lord Justice Tuckey:

48. At the end of the hearing of this appeal on the 19^th July 2002 I thought that it should be dismissed. My reasons for doing so were excellently expressed in Clarke L.J.'s draft judgment with which I agreed. There was nothing I wanted to add.
49. Since then however Lord Justice Ward has carried out considerable research into this difficult area of the law and reached a different conclusion. His industry reveals that a variety of tests have been used to evaluate defences of illegality to claims in tort. We all agree however that the search for principle is elusive and that the "affront to public conscience" test is not helpful. There is no real dispute either that the origin of the applicable principle is to be found in the forbidden Latin maxim loosely translated as: the court will not lend its authority to a party trying to base a claim on an illegal act. The first of Ward L.J.'s questions (Is this action founded on illegality?) encapsulates this.
50. Clarke L.J.'s analysis (paras. 27-43) shows that in answering this question the courts will not (to use Bingham L.J's words) "draw up its skirts and refuse all assistance" if the illegality is collateral or insignificant. Ward L.J.'s other questions seem to me to be directed to this. Thus for "collateral" read "closely connected or inextricably bound up with" (2) and "does the claimant profit from his illegal act" (6); for "insignificant" read "serious" (3), "disproportionate" (4) and "able to be condoned by the court" (5).
51. On this analysis there is no fundamental difference of approach between the two judgments. Ward L.J's discussion is illuminating but I think there is a risk that it invites an over structured approach to the question. Illegality may affect a tort claim in many ways ranging from an essential part of the story giving rise to liability to some remote aspect of quantum. For this reason I favour a broad test of the kind proposed by Clarke L.J. viz: is the claim or the relevant part of it based substantially (and not therefore collaterally or insignificantly) on an unlawful act? Such a broad test has the merit of simplicity. It does not involve the judge having to make very specific and difficult value judgments about precisely how serious the misconduct is or whether it would result in imprisonment or whether the claimant's loss is disproportionate to his misconduct. I agree with what McLachlin J. said in the passage cited by Ward L.J. in para. -

…..the law must aspire to be a unified institution, the parts of which – contract, tort, the criminal law – must be in essential harmony. For the courts to punish conduct with the one hand while rewarding it with the other would be to "create an intolerable fissure in the laws conceptually seamless web".

A broad test enables this objective to be achieved; a more structured one might not.

52. But whatever test or tests one applies I cannot agree with Ward L.J.'s conclusion on the facts of this case. The question is not whether the appellant's claim as a whole is based on an illegality. It is not. Nor does any question arise as to whether the money he earned working for the respondents has to be repaid. The alleged illegality arises specifically in relation to his claim for future loss of earnings. This part of the appellant's claim can only be based on the assertion that he would have gone on working at sea by continuing to deceive his employers into believing that he was not suffering from epilepsy. Whether this would have amounted to one or more criminal offences does not really matter. The fact is that (however understandable) the appellant's future employment was dependent upon his continuing deceit of his employers. This deceit was not therefore collateral but essential to establish this part of the claim and could not possibly be described as insignificant in view of the risks involved to the appellant, those with whom he would work and his employers.
53. I would reach the same conclusion if the appellant had been injured by the drunken motorist postulated by Ward L.J. From the outset Lord Mansfield made it clear that the principle was not founded on any consideration or sympathy for the defendant. To this extent I am sure that he would not have been swayed by these hypothetical facts although I suspect he might have disagreed with Ward L.J.'s conclusion. For these reasons I agree with Clarke L.J. that this appeal should be dismissed.

Lord Justice Ward :

54. One thing at least is clear: the defence of illegality is available in the case of tort. In Clunis v Camden & Islington H.A. [1998] QB 978 this court accepted that the rule of policy embraced by the Latin maxim ex turpi causa non oritur actio does apply to causes of action founded in tort. How it applies is far less certain. As Buxton L.J. observed in Reeves v Commissioner of Police of the Metropolis [1999] QB 169, 184:-

"The limits of this defence are very difficult to state or rationalise, it being recognised as sitting more easily in the law of contract than of tort."

55. Bingham L.J. described the court's dilemma in Saunders v Edwards [1987] 1 W.L.R. 116, 1134:-

"Where issues of illegality are raised, the courts have (as it seems to me) to steer a middle course between two unacceptable positions. On the one hand it is unacceptable that any court of law should aid or lend its authority to a party seeking to pursue or enforce an object or agreement which the law prohibits. On the other hand, it is unacceptable that the courts should, on the first indication of unlawfulness affecting any aspect of a transaction, draw up its skirts and refuse all assistance to the plaintiff, no matter how serious his loss or how disproportionate his loss to the unlawfulness of his conduct.

The cases to which Kerr and Nichols L.JJ. have referred are valuable, both for the statements of principle which they contain and for the illustrations which they give of the courses which the courts have in fact steered in different factual situations. But I think that on the whole the courts have tended to adopt a pragmatic approach to these problems, seeking where possible to see that genuine wrongs are righted as long as the court does not thereby promote or countenance a nefarious object or bargain which it is bound to condemn. Where the plaintiff's action in truth arises directly ex turpi causa, he is bound to fail, as he did in … [certain named cases]. Where the plaintiff has suffered a genuine wrong, to which allegedly unlawful conduct is incidental, he is likely to succeed, as he did in …[other cases]."

56. The search for principle is elusive. The Law Commission's Consultation Paper No. 160 on "The Illegality Defence in Tort" is witness to the scale of the problem and the complexities in finding a proper solution. It is a difficult area, and I have found it especially so. The temptation simply to agree with my Lords, whose judgments are very compelling, is almost overwhelming but, having started on my own researches, I cannot responsibly avoid expressing my own conclusion, however tentatively I arrive at it.
57. We start, I think, with the source of the rule. The basic principle was stated long ago by Lord Mansfield C.J. in Holman v Johnson (1775) 1 Cowp 341, 343, in the context of the law of contract when he said:-

"The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own standing or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both were equally in fault, potior est conditio defendentis."

In Tinsley v Milligan [1994] 1 AC 340, 355, Lord Goff of Chieveley added:-

"It is important to observe that, as Lord Mansfield made clear, the principle is not a principle of justice; it is a principle of policy, whose application is indiscriminate and can lead to unfair consequences as between the parties to litigation. Moreover the principle allows no room for the exercise of any discretion by the court in favour of one party or the other."

58. Tinsley v Milligan is an important case for establishing (1) the applicability of the so called Bowmakers rule (Bowmakers v Barnet Instruments Ltd. [1945] K.B. 65) under which a claimant's claim is unenforceable when he has either to found his claim on an illegal transaction, or to plead its illegality in order to support his claim; and (2) that, as Lord Goff demonstrated, the consequences of being a party to an illegal transaction cannot depend on such an imponderable factor as the extent to which the public conscience would be affronted by recognising rights created by illegal transactions. It might repay a moment to look back at the way that test had evolved. It seems first to have been stated by Hutchison J. in Thackwell v Barclays plc [1986] 1 All E.R. 676, adopted and expanded in Saunders v Edwards, before reaching its apotheosis in Euro-Diam Ltd. v Bathurst [1990] 1 Q.B. 1, 35 where Kerr L.J. said that:-

"the ex turpi causa defence … applies if in all the circumstances it would be an affront to the public conscience to grant the plaintiff the relief which he seeks because the court would thereby appear to assist or encourage the plaintiff in his illegal conduct or to encourage others in similar acts. …"

59. Buxton L.J. thought in Reeves v Commissioner of Police for the Metropolis that, despite the disapproval of Kerr LJ.'s exposition of ex turpi causa, the rule nevertheless remained "a valuable guide to the basis of the defence". That may be an isolated view for the Court of Appeal has accepted that the test no longer applies: see, for example, Clunis v Commissioner of Police, Webb v Chief Constable of Merseyside Police [2000] QB 427 and Cross v Kirkby, an unreported judgment of this court given on 18^th February 2000.
60. I accept that the "affront to the public conscience" test is a false guide. That in my view is easily demonstrated here. There is a sense of outrage that this claimant should have lied and cheated his employer over many years and so there is a strong reaction that he should not get away with it a moment longer. Yet change the facts only slightly. Assume the claimant was on his way to work and was crossing the road on a controlled pedestrian crossing when he was struck by a drunken motorist driving too fast and not keeping any proper look out at all. He suffered head injuries similar to those suffered in this accident with the result that when he reported back for duty after his convalescence and was being flown on the helicopter back to his work as a crane driver on board ship, he had a seizure and confessed all to his employer. I cannot say I have quite the same indignation about his claiming from the negligent motorist the loss of income he would have had an 80% chance of deriving from good work done for satisfied employers but which he has lost because, due to the defendant's negligence, he is now so badly injured that no medication in the world would enable him to control his epilepsy and do the job satisfactorily.
61. If an affront to the public conscience is not a test to apply, what is? There appear to be many other ways, none of them entirely satisfactory, for determining as a matter of principle rather than as a matter of discretion, whether the claim should lie or not.

The Bowmakers rule: the claimant's reliance on his own illegality.

62. More fully expressed the rule might be stated to be that the claimant will fail if he has to rely upon or be forced to rely upon an illegal act to found his claim. That alternative way of putting the matter is necessary because:-

"it makes no difference whether the illegality is raised in the plaintiff's claim or by way of reply to a ground of defence,"

See Euro-Diam at p.35. This explains why Miss Milligan succeeded: she was not bound to plead or rely on the illegality, and there was no need to allege or prove why the house was conveyed into the name of Miss Tinsley alone, since that fact was irrelevant to her claim. See Lord Browne-Wilkinson's explanation at p. 376.

63. It is interesting to observe, therefore, how the question of illegality arose in this case. The claim was a straightforward claim for damages with the particulars of special damage being contained on a schedule (which is not actually before us). The defence was the usual defence in which it was admitted that the plaintiff had suffered some personal injury and thereby suffered some loss and damage as a result of the accident but no admissions were made as to the nature and extent of that loss and damage. It was only in the exchange of schedules of the damage where the claimant pleaded his future loss of earnings as follows:-

"Had the accident not occurred the claimant would have continued working at sea until retiring age at the age of 62 years. The claimant, having suffered from grand mal seizures whilst at work in 1997 is now unable to continue at sea … Had the accident not occurred the claimant would presently be earning £32.765 net per annum (based on the available pay details prior to his second period of absence)."

The defendants' counter-schedule

"contains the figures for which the defendant contends, based on the public policy point that no claimant should receive damages for a loss which only arises by reason of a fraud which he would have perpetrated. The column to the left of the "public policy" column contains the figures that would apply if the public policy point did not arise.

Public policy.

It is common ground that the claimant would not have obtained off-shore employment with the defendant had he not deliberately concealed his history of epilepsy. Neither would he have remained in such employment if he had, on any of the occasions that he went for a medical, answered truthfully the direct question as to whether he had ever suffered from epilepsy. The complainant was thus continuously committing an offence under the Theft Act, namely obtaining pecuniary advantage by deception contrary to section 16 of that Act. Such an offence carries a maximum five year term of imprisonment. In those circumstances, the defendants submit that it offends public policy for the claimant to claim for the loss of earnings that he could not have honestly earned (see Hunter v Butler)."

64. In Standard Chartered Bank v Pakistan National Shipping Corporation & Others (No. 2) [2000] 1 Lloyds Rep 218 the claimant bank had been presented by charterers with a bill of lading which contained a false statement regarding the date of shipment. Other documents were presented out of time. The bill was accepted by the claimants and the charterers were paid. Later the claimants discovered the fraud, but nonetheless presented the documents to the issuing bank, falsely representing they had been presented in time in the hope that they would be accepted. The issuing bank rejected the documents for other reasons and the claimants then brought an action for deceit against the carrier. The carrier sought to argue that the claim could not succeed because of the claimant bank's own attempted fraud. Aldous L.J. rejected that argument because the bank did not need to rely on their own illegality in order to found their own claim for damages in deceit and I agreed with him. It seemed to me a fairly straightforward application of the rule. (Although other aspects of this case have received their Lordships' attention, the ex turpi causa issue was not the subject of the further appeal to the House of Lords.)
65. In Clunis the claimant sought to argue that his cause of action did not depend upon proof that he had been guilty of manslaughter, but the court held that the blame was founded on the assertion that the manslaughter was the kind of act which the defendant ought reasonably to have foreseen and that breaches of duty by the defendant caused the plaintiff to kill Mr Zito. Beldam L.J. held at p.987:-

"In our view the plaintiff's claim does arise out of and depend upon proof of his commission of a criminal offence. But whether a claim brought is founded in contract or in tort, public policy only requires the court to deny its assistance to a plaintiff seeking to enforce a cause of action if he was implicated in the illegality and in putting forward his case he seeks to rely upon the illegal act."

A close connection between the loss or injury and the criminal act.

66. In Cross v Kirby the claimant hunt saboteur attacked the defendant farmer with a baseball bat. Not having been able to escape the attack the farmer wrestled the bat from him and hit the claimant a single blow on the side of the head which caused serious damage. Beldam L.J., with whom Otton L.J. agreed, held in paragraph 76:-

"I do not believe that there is any general principle that the claimant must either plead, give evidence of or rely on his own illegality for the principle to apply. Such a technical approach is entirely absent from Lord Mansfield's exposition of the principle. I would, however, accept that for the principle to operate the claim made by the claimant must arise out of criminal or illegal conduct on his part. In this context "arise out of" clearly denotes a causal connection with the conduct, … In my view the principle applies when the claimant's claim is so closely connected or inextricably bound up with his own criminal or illegal conduct that the court should not permit him to recover without appearing to condone that conduct."

Judge L.J. held in paragraph 103:-

"In my judgment, where the claimant is behaving unlawfully, or criminally, on the occasion when his cause of action in tort arises, his claim is not liable to be defeated ex turpi causa unless it is also established that the facts which give rise to it are inextricably linked with his criminal conduct. I have deliberately expressed myself in language which goes well beyond questions of causation in the general sense."

It is interesting that nonetheless Beldam L.J. was of the view that the claimant's injury "arose (oritur) from the claimant's own criminal conduct".

67. That approach was adopted in Hall v Woolston Hall Leisure Ltd. [2001] 1 WLR 225, Mance L.J. going so far as to say in paragraph 79:-

"While the underlying test therefore remains one of public policy, the test evolved in this court for its application in a tortuous context thus requires an inextricable link between the facts giving rise to the claim and the illegality, before any question arises of the court refusing relief on the grounds of illegality. In practice, as is evident, it requires quite extreme circumstances before the test will exclude a tort claim."

68. In Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218 Sir Murray Stuart-Smith set out certain general propositions of which the first was:-

"The operation of the principle arises where the claimant's claim is founded upon his own criminal or immoral acts. The facts which give rise to the claim must be inextricably linked with the criminal activity. It is not sufficient if the criminal activity merely gives occasion for tortious conduct of the defendant."

69. I accept all of those propositions as valuable guidance. They were all uttered in cases where the issue was whether the claimant was entitled to bring his claim notwithstanding his own illegal act. We are confronted with a different problem. Liability is admitted and the illegality point relates to the damages which flow from the admitted negligence of the defendant.

The seriousness of the claimant's misconduct.

70. In Vellino, Sir Murray Stuart-Smith stated his third proposition to be this:-

"In the case of criminal conduct this has to be sufficiently serious to merit the application of the principle. Generally speaking a crime punishable with imprisonment could be expected to qualify. If the offence is criminal but relatively trivial, it is in any event difficult to see how it could be integral to the claim."

71. There is no doubt in my judgment that the claimant's conduct must be shown to be so clearly reprehensible as to justify the condemnation of the court. In Cross v Kirby, for example, a comparison was made there of the seriousness of the claimant's assault with the triviality of the assault in Lane v Holloway [1968] 1 QB 379. Where to draw the line between what is serious and what is trivial is not always easy.

Proportionality.

72. Bingham L.J. raised this in his judgment quoted above in Saunders v Edwards. The disproportion is between the claimant's conduct and the seriousness of the loss he will incur if his claim is not allowed. This test of proportionality is not quite the same as judging whether the claimant's wrongdoing is disproportionate to the defendant's wrongdoing. Judging their respective actions in that way may be reintroducing through the back door the public conscience test which we are not allowed to apply

Deterrence and non-condonation of the claimant's conduct.

73. The need to deter unlawful conduct is sometimes said to be part of the public policy argument: see for example Ralph Gibson L.J. in the Court of Appeal in Tinsley v Milligan [1992] Ch. 310, 334. Lord Goff cited the passage with approval but Lord Lowry was more doubtful. I share those doubts. In this case it seems to me to be highly unlikely that an ultra-strict application of the ex turpi causa rule would have any deterrent effect at all. If the penalty of imprisonment imposed by the Theft Act 1968 was insufficient to deter the crime, the wholly remote possibility that one day damages for negligence would be reduced is too fanciful to contemplate as affecting this claimant's mind or anyone else who might be minded stupidly to follow his example.
74. I have already quoted Kerr L.J.'s judgment in Euro-Diam when dealing with the affront to the public conscience where the justification for that principle was in part the need for the court not to be appearing to assist or encourage the claimant in his illegal conduct. As we have seen that statement met with disapproval in the House of Lords. Nonetheless, the need not to appear to condone the illegality continues to be a relevant factor. Beldam L.J. in Cross v Kirby set out his close connection test without which the court could not permit recovery "without appearing to condone that conduct". Peter Gibson L.J. approved it in Hall v Woolston Hall Leisure Ltd. Buxton L.J. in Reeves v Commissioner of Police for the Metropolis referred to Kerr L.J.'s observations in Euro-Diam and observed at p.185 that:-

"To grant relief in our case does not assist or encourage [the deceased] or others in his situation to continue in their disapproved conduct."

75. It seems to me, therefore, that non-condonation remains a factor notwithstanding the disappearance of the public conscience. It may not always be a powerful factor. It did not appear to attract Winneke C.J. in Mills v Baitis [1968] V.R. 583 where he said:-

"… In a case like the present where the respondent has suffered a proved loss in connection with an occupation which, although followed in a place forbidden by law, is in itself quite lawful, it would be artificial in the extreme and reminiscent of mid-Victorian hypocrisy to deny him the aid of the law to recover such loss from the apparent wrongdoer on the hypothesis that the general welfare of the State would be thereby advanced."

76. It seems to me that it retains its place because it is an inherent aspect of the public policy which informs the whole doctrine. It is part and parcel of the next point.

The claimant should not profit from his illegal act.

77. The rule is well founded to defeat claims based on contract where the leading case is probably Beresford v Royal Insurance Co. Ltd. [1938] A.C. 586. I even invoked it to deny claims for ancillary relief on divorce, once successfully in Whiston v Whiston [1995] Fam. 198, and once unsuccessfully in S.-T. (Formerly J.) v J. [1998] Fam. 103.

If one wants a Latin tag for an appropriate maxim it would be: nullus commodum capere potest de injuria sua propria – no man can take advantage of his own wrong. This is a principle which had been recognised from before the 17^th century and is referred to in Lord Coke's Commentaries on The Laws of England by Littleton: Co Litt. 148.

78. In Hunter v Butler [1996] R.T.R. 396, 405, Hobhouse L.J. said:-

"If a plaintiff comes to court and asserts as part of her case that she would have committed criminal acts and bases her claim upon such an assertion, she cannot recover in a court of law on that basis."

I agree with Clarke L.J. that this may be an application of the rule that one cannot rely on or found a claim on one's own criminal act. But a further characterisation of his judgment may well be that he regarded it as contrary to public policy to allow the criminal to profit from the fraud.

79. Similar thoughts were probably in the mind of Gowans J. in Mills v Baitis a case which involved illegality in the conduct of a business within a residential zone without planning permission so contravening the Town and Country Planning Act. He said at p.588:-

"It is not a case of enforcing rights resulting from a crime, or helping a plaintiff to get a benefit from a crime, or helping him to get reparation for the consequences of a crime. It is really a question as to whether the measure of the damages which would ordinarily flow from the admitted tort is to be treated as exclusive of compensation for loss of capacity to earn from an activity prohibited by statute in one of its aspects. If so, it must be on the basis that such loss is to be treated as damnum of a kind not recognised by law because of considerations of public policy …"

Later at p.590 he said, in order to answer the suggestion that allowing the claim might open the door for a claim by the injured professional burglar:-

"It seems to me that it is sufficient to say that a professional burglar does not earn his money; he steals it; he does not put his earning capacity to use but prefers not to use it. … The public interest is not concerned to relieve the defendant wrongdoer. It directs its concern to the question of the deprivation of the plaintiff wrongdoer. Where the plaintiff's wrongdoing has had no causal connection with the defendant's wrongdoing which has caused the damage, it is less probable that the purpose of the law will be to treat the plaintiff's wrongdoing as affecting the plaintiff's relief, than where there has been a causal connection."

80. Whilst there is, of course, an ineluctable need for the court to ensure that "crime does not pay" there are some difficulties in applying the full rigour of the principle to claims for compensation for tortious injury. As Evans L.J. observed in Revill v Neubery [1996] QB 567, 579, strict application of the rule might lead to the trespasser who was also a criminal effectively becoming an outlaw and he said:-

"… It is one thing to deny to a plaintiff any fruits from his illegal conduct, but different and more far-reaching to deprive him even of compensation for injury which he suffers and which otherwise he is entitled to recover at law."

81. The problem is that the primary purpose of the law of tort is compensation for injury sustained by one person as a result of the conduct of another. Compensation is not profit. Herein lies the heart of Mr Burke's submissions.
82. This dilemma received interesting treatment in the Canadian Supreme Court in Hall v Hebert (1993) 101 D.L.R. (4^th) 129. Giving the judgment of the majority McLachlin J. said between pp.162-165:-

"It is important at the outset to define what is meant by profit. As the cases illustrate, what is meant is profit in the narrow sense of a direct pecuniary reward for an act of wrongdoing. Compensation for something other than wrongdoing, such as for personal injury, would not amount to profit in this sense. An instance is the situation where one wrongdoer claims in tort against another for financial loss arising from a joint illegal venture. …

In some cases the courts may disallow a particular head of damages on the basis that to award that head of damages would be to permit the plaintiff to indirectly profit from his or her crime, in the sense of obtaining remuneration for it. A claim for damages for personal injuries under the head of loss of future earnings, where the claimed earnings are based on an illegal occupation, will not be allowed because it would amount to the court's rewarding the plaintiff for an illegal activity, permitting the plaintiff to profit from his or her wrong. Courts in other jurisdictions have refused to make such awards in cases of claims by a burglar, a bookie's clerk, a vendor of illegal patent medicines, a fisherman using an unlawful net, and an operator of an illegal gambling den: Burns v Edman ([1970] 2 Q.B. 541) …

The narrow principle illustrated by the foregoing examples of accepted application of the maxim of ex turpi causa non oritur actio in tort, is that a plaintiff will not be allowed to profit from his or her wrongdoing. This explanation, while accurate as far as it goes, may not, however, explain fully why courts have rejected claims in these cases. Indeed, it may have the undesirable effect of tempting judges to focus on the issue of whether the plaintiff is "getting something" out of the court, thus carrying the maxim into the area of compensatory damages where its use has proved so controversial, and has defeated just claims for compensation. A more satisfactory explanation for these cases, I would venture, is that to allow recovery in these cases would be to allow recovery for what is illegal. It would put the courts in the position of saying that the same conduct is both legal, in the sense of being capable of rectification by the court, and illegal. It would, in short, introduce an inconsistency in the law. It is particularly important in this context that we bear in mind that the law must aspire to be a unified institution, the parts of which – contract, tort, the criminal law – must be in essential harmony. For the courts to punish conduct with the one hand while rewarding it with the other, would be to "create an intolerable fissure in the law's conceptually seamless web": (Weinrib "Illegality as a Tort Defence (1976), 26 U.T.L.J. 28 at p.42). We thus see that the concern, put at its most fundamental, is with the integrity of the legal system.

At this point it may be useful to consider in more depth the distinction between compensatory damages and damages which amount to profit from an illegal act. The foregoing comments indicate that compensatory damages are not properly awarded as compensation for an illegal act, but only as compensation for personal injury. Such damages accomplish nothing more than to put the plaintiff in the position he or she would have been in had the tort not occurred. No part of the award which compensates injury can be said to be the profit of, or the windfall from, an illegal act. … such compensation as a plaintiff properly recovers arises not from the character of his or her conduct, illegal or otherwise, but from the damage caused to him or her by the negligent act of the defendant. He or she gets only the value of, or a substitute for, the injuries he or she has suffered by the fault of another. He or she gets nothing for or by reason of the fact he or she was engaged in illegal conduct."

The application of these criteria to the instant case.

1. Is this action founded on illegality?

83. The strict answer is no. The claimant did not plead his criminal activity in his claim nor refer to it in the reply. He was not bound to disclose it or rely upon it. He had only to prove the loss of the earnings he was receiving at the time of the accident, no more and no less. That his wages were only obtained because of the earlier deception of his employer is no more directly material than the fraud on the D.S.S. practised by Miss Milligan.

2. Is his claim closely connected or inextricably bound up with his own criminal conduct?

84. This is a more appropriate question. The illegality was plainly raised in the counter-schedule of damages and it must be open to a defendant to take a point of that kind. Once illegality is raised (and perhaps even if it is not raised by the parties) it must be dealt with by the court. It seems to me, however, that the case before us raises a very different question from that which was posed in the authorities where this test was enunciated. There the question was whether the illegal conduct had some causative effect on the claim in the sense that one was identifying whether the illegality was inextricably linked with the facts giving rise to that claim. Here a very different question arises. Here the negligence caused the head injury which caused the recurrence of the epilepsy which caused the convulsion in the presence of his employers which caused them to terminate his employment. The illegality is uncovered on the way. There is a link but is it a close one? I do not judge it to be so. The real reason for the claimant's dismissal was not his dishonesty, though that must have played its part, but his epilepsy and his consequent inability properly and safely to perform his work. The criminal activity is thus more the occasion than the cause of the diminution in his earning capacity. This man could not earn as he was because he could not work as he had given the exacerbation through the defendant's negligence of his epileptic condition.

3. Is this serious misconduct?

85. The misconduct is the claimant's committing the crime of obtaining a pecuniary advantage by deception. The pecuniary advantage is to be regarded as obtained where a person is given the opportunity to earn remuneration or greater remuneration in an office or employment: see section 16(2)(c) of the Theft Act 1968. It is an offence on conviction for which on indictment carries a term of imprisonment not exceeding five years. As an offence in the criminal calendar, it is serious, but not as serious as obtaining property by deception which carries a ten year prison sentence. In my judgment, however, one should not look to the offence in abstract but to the offence committed by this particular person at the particular time be committed it. Had he been charged soon after he obtained his employment, it seems to me highly unlikely that he would have been at risk of going to prison. He had always cherished an ambition to work at sea and he did what many young epileptics do, they lie about their illness. That the employment was that of a crane operator makes it serious for the employer but I rather doubt whether that would have made his criminal responsibility that much greater. It is said, and although I doubted it, I am quite prepared to accept, that each time he completed the medical questionnaire he obtained another pecuniary advantage. I say I doubt it because it seems to me that the advantage of obtaining the employment can only be obtained once when the job is offered and the offer accepted. From that time onwards he is earning his remuneration because he is working for it and I am not at all sure that he is truly "given the opportunity to earn" simply by filling in the questionnaire. Had he correctly filled in the questionnaire the employment would have been terminated. Be that as it may, I do not see that it matters much. By the time he had been years in the employment and had conducted himself satisfactorily and safely the more he is entitled to think – however wrongly and with whatever criminal intent – that his lying to his employer is venial. The reality is that he had an 80% chance, as is agreed, of working satisfactorily until retirement. The longer he worked, the less reprehensible his conduct as between him and his employer even if it has the effect that he has "been getting away with it" for longer and longer. I make it clear that I do not regard this criminal activity as trivial, nor do I regard it as so serious as by itself to justify the refusal of relief.

4. Is the claimant's loss disproportionate to his misconduct?

86. On one view, it is not disproportionate because he ought never to have been earning the money he was but for the deceitful way he obtained the employment in the first place. On the other hand, and as a matter of fact and of causation, he suffered the loss because the defendant's injury rendered him prone to discovery. A sense of proportion has, therefore, to be kept between his original crime, his many years of good and safe service, the prospect of his completing his employment safely and successfully and the intervention of the defendant's negligence triggering discovery. There are two ways of looking at this question. Adversely to the claimant one says he would have gone on earning his money because he has told and would continue to tell lies about his health. More favourably to the claimant one would say he would have continued to earn his money because he was doing the work to his employer's satisfaction. Because the defendant is the employer it is more easy to look at the matter in the former way but the perspective changes if the defendant was the drunken motorist who injured him. Because he is the author of his own misfortune through his original deception, I cannot say that the conduct is not disproportionate to the loss but the scales are not in my judgment so tipped against him that this factor trumps his claim.

5. Can the court condone his conduct?

87. The answer is no but that is not the end of the case. Day in and day out awards of damages are made for personal injuries even though those damages are substantially reduced by reason of the party's contributory negligence which may consist in his careless driving evidenced by a conviction for driving without due care and attention. Here I do not condone the deception but I have to recognise that money was lawfully earned.

6. Does the claimant profit from his illegal act?

88. This, in my judgment, is the key question in this case. The profit from the crime was being given the opportunity to earn remuneration in employment. The profit of the crime is not the receipt of the wages as such. He has not been charged with and is not guilty of the offence of obtaining property by deception. He obtained his pay lawfully. He earned it through his good and satisfactory work. So month by month the money came to him lawfully and he committed no crime by putting it in his pocket. He seeks compensation for personal injury. He asked to be put in the position he would have been in but for the injury. That is his entitlement. But for the injury he would have gone on earning lawful wages. He is not the professional burglar who does not earn his money because he steals it. What needs to be condemned is the illegal activity of obtaining the pecuniary advantage. That does not mean, to adopt McLachlin J.'s words that the claimed earnings are based "on an illegal occupation". The crime comes at a time anterior to the doing of the work. As I have already said, it was of course the occasion which enabled him to do the work. But the crime itself was the cause of his earnings. At all times the earnings which he had lost were earnings which he was enjoying lawfully. So if one poses the question: "Is this claimant being allowed to recover for what is illegal?" The answer on the narrow construction is no.
89. Since the employment itself was lawful and since the receipt of the earnings was lawful, there is no inconsistency in permitting the claim and not punishing him for the truly criminal conduct in obtaining that employment. Once the misconduct is properly identified, there is no question of condemning it with one hand and rewarding it (and this means that criminal activity) with the other. I do not see that the integrity of the legal system is imperilled.
90. The New Zealand Court of Appeal in La Bagge v Buses Ltd. [1958] N.Z.L.R. 630 dealt with a claim for loss of dependency where the deceased worked seven days per week when certain transport licensing regulations prohibited his working without at least twenty-four consecutive hours rest in any period of seven days. Cleary J. held at p.647/8 as follows:-

"The argument for the respondent is that the jury should have been directed to deduct from the earnings of the deceased £1. 10s per week to allow for the employment of labour on the seventh day, and to make a corresponding deduction in assessing the pecuniary loss of the dependants. The fact, however, was that up to the time of the death of the deceased his contribution to the maintenance of his family had not been diminished in this way. Moreover, the evidence was that in the twelve months between the date of death and the trial of the action all other owner-drivers had continued to perform their contracts in the same manner as the deceased had during his lifetime, so that the probability was that the deceased lived until his contribution for the support of his family would not have been diminished by £1. 10s. per week. The sole function of the jury was to assess the damages at an amount commensurate with the pecuniary benefit the dependants of the deceased might reasonably have expected to derive from him had he lived. In these circumstances, we do not think that any ground of public policy called for a positive direction to the jury that as a matter of law they must deduct an amount which the family, in point of fact, had received during the deceased's lifetime and would probably have continued to receive had he lived. We think such an infirmity as existed in the appellant's case on this point was sufficiently dealt with by the learned judge when he told the jury that it was proper for them to take into consideration, in the assessment of damages, the possibility that the regulation would be enforced and the deceased's income thereby diminished."

That seems to me to be an eminently pragmatic decision. It was, incidentally, the jury's decision which must be some modest indication of public policy. The adoption of a pragmatic approach was the way forward approved by Bingham L.J. in Saunders v Edwards and the pragmatic solution proffered by the claimant here is to allow for the possibility of his not earning his wages until retirement by providing for a 20% discount. It is an approach which commends itself to me.

Would Lord Mansfield C.J.be offended?

91. He said the claimant has no right to be assisted by the court if, from the plaintiff's own standing or otherwise, the cause of action appears to arise ex turpi causa, or from the transgression of a positive law of this country. The claimant did transgress the law. It gave him an advantage. Having wrongfully seized the advantage he began lawfully to earn his money. The fact is that the advantage terminated because of a further injury sustained as a result of the defendant's negligence. It should make no difference to the proper application of principle that the defendant is his employer whom he has cheated or that the defendant is the drunken motorist. I would not punish the claimant by reducing his claim.

Conclusion.

92. I do not pretend to have found the case easy. I see the force of my Lords' arguments. Nonetheless, in my judgment this appeal should be allowed.