Law of Torts
The Plaintiff the Wrongdoer, and Ex Turpi Causa Non Oritur Actio: How Narrow the Illegality Defence Really Is
Ex turpi causa non oritur actio means that no action arises from a base cause. The court will not lend its aid to a plaintiff who has to found his claim on his own illegal or immoral act. It is a rule of public policy and not a denial of any element of the tort. But the defence is far narrower than its Latin suggests, and the commonest error is to treat it as a rule that a plaintiff engaged in wrongdoing loses the protection of the law altogether. He does not. A trespasser may sue for injuries caused by a deliberate trap, and a person travelling unlawfully may still recover for another's negligence. The illegality must be connected with the claim, not merely present in the background.
What the maxim says, what it does not say, the test, and the case that fixes the limit
1. The Maxim and Its Basis
- Ex turpi causa non oritur actio: no action arises from a base cause. The related maxim is in pari delicto potior est conditio defendentis, that where both are equally at fault the defendant's position is the stronger.
- It rests on public policy, and specifically on the integrity of the legal system. The court will not allow its own process to be used to enforce a claim that depends on the plaintiff's wrongdoing.
- It is not founded on any element of the tort. The duty, the breach, the causation and the damage may all be made out, and the claim still fails.
- Its consequence is absolute where it applies. Unlike contributory negligence, it defeats the claim entirely rather than reducing the damages, which is why the courts confine it.
- The burden of raising it is on the defendant, though the court may take the point of its own motion where the illegality appears on the face of the plaintiff's own case.
2. What the Maxim Does Not Mean
1. It does not mean that a wrongdoer is an outlaw. A person engaged in an unlawful activity does not thereby forfeit the protection of the law of torts generally.
2. It does not mean that a trespasser cannot sue. He may sue for injuries caused by a deliberate trap, and since British Railways Board v. Herrington [1972] AC 877 an occupier owes even a trespasser a duty of common humanity.
3. It does not mean that a burglar may be shot. A person defending his property may use only reasonable and proportionate force, and excessive force makes him liable.
4. It does not mean that illegality in the background defeats the claim. A passenger travelling without a ticket, or a pillion rider in breach of a rule, may still recover from a negligent driver.
5. The illegality must be one the plaintiff has to rely on. If the claim can be stated without reference to it, the maxim does not apply.
3. The Test
The question | The answer it produces |
Must the plaintiff plead or rely on his own illegality to make out his claim? | If yes, the maxim applies and the claim fails |
Is the illegality merely the occasion or setting of the injury? | If so, the maxim does not apply and the claim proceeds |
Is there a close connection between the illegal act and the injury complained of? | The closer the connection, the more likely the defence succeeds |
Would allowing the claim stultify the law by giving with one hand what another branch takes with the other? | If it would, that is a reason to apply the maxim |
Is refusing the claim a proportionate response to the illegality? | The modern approach weighs the purpose of the rule against the effect of denying the claim |
4. The Case That Fixes the Limit
📖 Bird v. Holbrook (1828) 4 Bing 628 Facts The defendant occupied a walled garden in which he grew valuable tulips. Having suffered thefts, he set a spring gun in the garden, wired to trip on contact. He deliberately gave no notice of it, intending that an intruder should be caught unawares. The plaintiff, a young man employed nearby, climbed the wall in the daytime to retrieve an escaped pea fowl, and was shot and severely wounded. Held The defendant was liable, and the plaintiff's own trespass was no answer. Ratio A landowner may not set a hidden engine calculated to inflict grievous harm on a person who comes on to his land. Deliberately concealing the presence of the gun showed an intention to injure rather than to deter, and a plaintiff who is himself a trespasser does not thereby forfeit the protection of the law against a deliberate trap. The defence that the plaintiff was a wrongdoer fails where the defendant's own act was itself unlawful and out of all proportion. |
- The contrast is with Ilott v. Wilkes (1820), where the plaintiff had notice of the spring guns and entered nonetheless, and failed. The presence or absence of notice was the distinguishing feature.
- The modern statutory position in England forbids spring guns and mantraps outright, and the Indian position is governed by the ordinary principles of private defence, which require the force used to be reasonable and proportionate.
5. The Indian Position
- The maxim is recognised in India and applied on the same footing, but narrowly.
- Illegality in the background does not defeat a claim. The Indian courts have repeatedly allowed compensation to persons who were themselves breaking some rule at the time of the accident, where the breach had nothing to do with the negligence complained of.
- Travelling without a ticket, riding without a helmet, or carrying more passengers than permitted are each treated as matters going to contributory negligence, if to anything, rather than as defeating the claim altogether.
- What defeats the claim is illegality the plaintiff must rely on, as where he sues to enforce or to recover the fruits of an unlawful transaction.
- Contributory negligence is the usual answer instead. Because it apportions rather than bars, it allows the court to reflect the plaintiff's conduct without denying him compensation altogether, which is why the courts prefer it.
6. The Relation to the Other Defences
Ex turpi causa | Contributory negligence | |
What it is founded on | Public policy | The plaintiff's own failure to take care of himself |
Its effect | Defeats the claim entirely | Reduces the damages in proportion |
What must be shown | That the claim depends on the plaintiff's own illegality | That the plaintiff failed to take reasonable care and that this contributed to his injury |
Is fault necessary | No. The illegality may be strict | Yes. Carelessness on the plaintiff's part |
Frequency of success | Rare, and deliberately so | Common |
Which the courts prefer | They confine it | They use it, because it apportions |
7. Why the Defence Is Kept Narrow
⚠ A wide illegality defence would produce arbitrary results If any illegality on the plaintiff's part defeated his claim, the consequences would be both arbitrary and disproportionate. A driver exceeding the speed limit by a small margin would recover nothing from a defendant who drove straight through a red light into him. A person injured by a collapsing building would lose his claim because he had entered without permission. The law would be punishing the plaintiff twice, once through the penalty the law itself provides for his illegality, and again by denying him compensation for a wholly separate wrong. That is why the modern approach asks whether the claim depends on the illegality, and, increasingly, whether denying it would be a proportionate response. The defence survives for the case where a court would be stultifying itself by giving relief, and for very little else. |
8. The Position Stated Shortly
1. Ex turpi causa non oritur actio means that no action arises from a base cause.
2. It is a rule of public policy, founded on the integrity of the legal process, and not a denial of any element of the tort.
3. It defeats the claim entirely, which is why the courts confine it narrowly.
4. The test is whether the plaintiff must plead or rely on his own illegality to make out his claim.
5. Illegality that is merely the occasion or setting of the injury does not defeat the claim.
6. Bird v. Holbrook holds that a trespasser injured by a concealed spring gun may recover: his own trespass is no answer to a deliberate trap.
7. A trespasser is owed a duty of common humanity since British Railways Board v. Herrington, and a person defending property may use only reasonable force.
8. In India the maxim is recognised but applied narrowly, and breaches of rules unconnected with the negligence do not bar the claim.
9. Contributory negligence is the usual answer instead, because it apportions the loss rather than denying compensation altogether.
10. The modern approach weighs the purpose of the rule against the effect of denying the claim, and asks whether refusal is proportionate.