Tuesday, 4 January 2011

Hassan-Daniel v HMRC [2010] EWCA Civ 1443, The Scout Association v Barnes [2010] EWCA Civ 1476: risks

You have two cases before you.  One is brought by the widow of a drug smuggler who died when dozens of bags of cocaine exploded in his innards, who wants to sue Customs for not saving his life.  The other is brought by a boy injured in a scout’s game when the scoutmaster had them running around in the dark.  Which one wins?

No, I'm not that transparent. Certainly the boy won his.  Running around in the dark?  Inherently dangerous?  Yes.  There was sufficient light for everyone to see vaguely what they were doing.  But not clearly enough.  The Court did find that, had the lights been on, the boy would have seen the wall…

It was a close-run thing though.  2-1.  The Court of Appeal seems to be becoming increasingly frustrated with ambulance chasing.  There have been a number of cases recently, e.g. Tomlinson v Congleton BC, where the Court has said that people have to take responsibility for their own actions.  If there’s a sign saying “no diving, it’s dangerous”, and someone goes ahead and dives, it’s 100% their fault.  They shouldn’t sue the council for not fencing the area off.  There must be some public amenity for people.  If that involves risks, hey, if you’re not living on the edge, you’re taking up too much room.

And in the Barnes case Jackson LJ put a powerful judgment in favour of the Scout Association.   “It is not the function of the law of tort to eliminate every iota of risk or to stamp out socially desirable activities.”  He looked at the policy reasons behind having rough-and-tumble games and decided that the slightly increased risk of injury was OK, because the Scouts provide a public benefit. 

However he was outnumbered.  Smith LJ thought it was a simple question.  Yes, some risk is good.  But that doesn’t mean you can get away with any risk on the basis that it weeds out the untermensch.  In the Barnes case, turning out the lights made it more exciting, yes – but it didn’t add any societal benefit.  It was, for want of a better word, daft.  And with her Ward LJ, somewhat reluctantly, agreed.

The closeness of the decision, and Jackson LJ’s judgment being longer than the other two put together, suggests that the case might go to the Supreme Court; even if Barnes ends up holding on to his slender lead, there may be some more clear guidance on what level of risk is appropriate when weighed against social benefit.

There’s not much social benefit in drug smuggling.  Swallowing them to get through Customs is certainly a risk that one should not take on.  Not only did Anthony Daniel swallow 116 packages of raw cocaine, he then kept shtum about it, even when arrested and x-rayed, apparently on the basis that he would be let go if he said nothing.  And then he went on hunger strike so he didn’t reveal his stomach contents via coprolitic analysis.  Add to this a heart weakened by drug use and an 11 year sentence he’d not long finished for drug smuggling, and you have a prime case for the Darwin Awards.  After his inevitable death, his widow sued Customs…

Surely she should lose.  Customs applied to strike it out on the basis that the case was not only hopeless, but that it arose out of criminal behaviour, and one shouldn’t be allowed to profit from it.  Reluctantly, the Court of Appeal refused to strike it out.  For sound legal grounds.  Had Mr Daniel admitted the crime and asked for help getting a kilo of coke from his intestines, and Customs refused, surely there should be a claim against Customs there?  Would that mean that you could do what you liked to criminals?  Someone has a heart attack when parked on a double yellow in a hospital – should the medics be able to refuse to help?  Conversely, if someone were arrested by mistake, and then refused to take essential medicine, there WOULD be a claim, even though the resulting harm would be nothing to do with the police…

It's a powerful blow against the principle of ex turpi, i.e. that you should not be allowed to sue if your damage comes out of something criminal you're doing.  In fact, it's difficult to see, if this case is not overturned on appeal, just how anyone could ever rely on an ex turpi defence.  In Daniels it is eminently possible for the Supreme Court to state that Daniels' crime should prevent any claim; an "honest" smuggler who begged for treatment could be considered a different category, as the request for treatment would be a different and perhaps intervening event - OK, he did wrong, but a refusal to help would not be from the criminal act itself; more from a clear, separate decision.   

There may be no point in appealing the decision.  The regrets expressed by the Court of Appeal is simply because the case is, on the face of it, utterly hopeless.  But that’s a matter for trial, with full-blown witness evidence, and it is just about possible that some more evidence may yet come out.  Unlike the cocaine.

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