There is a Latin legal maxim, ex turpi causa non oritur actio, that means that no action can arise from an illegal or immoral act. In times gone by, courts were reluctant to allow someone to bring a claim where they had engaged in an immoral or illegal act. 

But has this principle survived, and does it operate to prevent personal injury claims in modern-day Alberta? As this article explains, the courts have largely dismantled the principle in a personal injury context, paving the way for compensation claims. However, some pieces of legislation make it more difficult for those acting illegally to succeed in or defend a claim in certain circumstances. 

Illegality as a defence to a personal injury claim?

English courts developed the principle in the Latin maxim to preserve the integrity of the judicial process. In other words, it allowed the courts to prevent people from using their services for abusive or illegal purposes. An example would be a court refusing to allow a person that murdered a relative to claim under their will or the proceeds of a life insurance policy.

It was far less clear that the principle could be used to prevent the recovery of compensation for those injured by someone else’s negligence. Fortunately, the Supreme Court of Canada has had the opportunity to provide guidance on this issue. 

The Supreme Court has said that a plaintiff’s illegal conduct normally does not prevent a claim

In the case of Hall v Hebert, a man sued the owner of a car after he let him drive it while intoxicated. The plaintiff suffered serious head injuries after he crashed the car. The defendant argued that the maxim operated as a defence to deny compensation for personal injury. 

The majority of the Court said:

“The power [to deny recovery to a plaintiff] is a limited one. Its use is justified where allowing the plaintiff’s claim would introduce inconsistency into the fabric of the law, either by permitting the plaintiff to profit from an illegal or wrongful act, or to evade a penalty prescribed by criminal law. Its use is not justified where the plaintiff’s claim is merely for compensation for personal injuries sustained as a consequence of the negligence of the defendant.” 

The Supreme Court has also decided that the fact that the plaintiff engaged in illegal conduct does not mean that the defendant does not owe the plaintiff a duty of care

In the case of Rankin (Rankin’s Garage & Sales) v J.J., the teenage plaintiff and his friend, after drinking and smoking marijuana, stole an unlocked car from a garage. The friend crashed the car, resulting in the plaintiff sustaining catastrophic injuries. The plaintiff sued the driver and the garage. Relevantly, the garage argued that the plaintiff’s illegal acts negated a duty of care.

The Supreme Court disagreed, explaining that if illegal behaviour could eliminate a duty, negligent defendants would be immunized from the consequences of their actions and injured people would be denied the ability to recover compensation even if the defendant was largely to blame.

Illegal conduct can be treated as a form of contributory negligence

As a result, acting illegally does not mean a plaintiff is prevented from obtaining compensation from a negligent defendant. However, engaging in illegal conduct is not ideal when making a personal injury claim. It may make it more difficult to succeed in a claim and/or reduce the amount of compensation available. 

The courts deal with illegal conduct by the plaintiff through the doctrine of contributory negligence. Suppose a plaintiff is injured by someone else’s negligence and has also acted illegally. In that case, the court may find that the illegal conduct was a contributing cause of the plaintiff’s injuries. 

If this is the case, the court will determine the degree to which the plaintiff is at fault for their injuries and reduce the amount of compensation the defendant paid in proportion to their degree of fault. 

Trespassers may not be able to benefit from the Occupiers’ Liability Act

In addition, various pieces of legislation make it more difficult for personal injury victims to claim compensation or defend a claim if they have engaged in certain types of conduct. 

For example, the Alberta Occupiers’ Liability Act, which imposes a duty on property occupiers to take reasonable care to see that visitors will be reasonably safe, provides that an occupier does not owe the normal duty of care to a trespasser on the occupier’s premises, subject to certain exceptions. 

According to this legislation, an occupier will not be liable for damages unless the injury results from their wilful or reckless conduct. Where the trespasser is a criminal trespasser, the standard is even lower, with the occupier only liable if the injury is caused by conduct that is wilful and grossly disproportionate in the circumstances and results in the occupier being convicted of an indictable offence.

Failure to comply with the Traffic Safety Act impacts personal injury claims

On the other hand, Alberta’s Traffic Safety Act contains a reverse onus of proof provision that makes it more difficult for those who have contravened it to defend a personal injury claim. 

Section 185 provides that if a person is injured arising from the operation of a motor vehicle on a highway, which was operated by a person who did not comply with the Act, the onus of proof falls on the non-compliant driver to prove that the injury did not arise because of their contravention. 

As a result, even if the injured person was negligent, the driver in contravention of the Act must prove that their contravention did not cause the injury.

Contact the Personal Injury Lawyers at Cuming & Gillespie LLP for Advice on Personal Injury Claims

You should not be denied compensation for an injury caused by someone else, even if you did not strictly comply with the letter of the law. The personal injury lawyers at Cuming & Gillespie LLP in Calgary will advise you on your prospects of success and the impact of any illegal conduct. Phone us at 403-571-0555 or contact us online to book an appointment for a free consultation.