Mr O’Brien and his nephew Mr Joyce must be amongst the most incompetent thieves around. They stole a ladder from the front garden of a house and put it into the back of the van but could not close the door. Mr O’Brien drove the van off to make a speedy getaway whilst Mr Joyce hung onto the back of the van, standing on a footplate with the ladder under or over his right arm. He was holding onto the door or roof whilst a door was flapping around. The van lurched around a bend without reducing speed making Mr Joyce yet more unstable. Finally, on another bend he lost his grip, fell and suffered a severe head injury. Mr O’Brien seemed more concerned about trying to hide the ladders than helping his nephew. His excuses for the accident were inconsistent, ridiculous and not worthy of a schoolboy. He said that he did not know that his nephew was hanging onto the rear of the vehicle by the doors or ladders, that his nephew clambered through the back of the vehicle to secure the doors which had come open, that he was riding on the footplate as a ‘joke’ and that his nephew had got out of the van to secure the doors and was not on it at the material time. The judge commented that it was no surprise that nobody wished to call him as a witness or rely upon his evidence.
The case was Joyce v Tradex Insurance Company Limited  EWHC 1324; the issue was whether Mr Joyce could recover damages for personal injury from Mr O’Brien when the claimant was injured whilst both were engaged in a joint criminal enterprise.
Cooke J found that Mr Joyce’s injuries were caused by the speed of the vehicle (essential to the getaway) and his position on the back of the vehicle (holding the ladders and the van whilst standing on the footplate). What Mr Joyce had done was so unusual as to be as causative of his injuries as Mr O’Brien’s driving. Accordingly the claim failed on causation.
The claim also failed as a matter of general public policy: a participant in a joint enterprise theft which involves a speedy getaway in a van with a participant driving and the other clinging dangerously to the stolen items and the van cannot recover for injuries sustained in the course of that enterprise. The driver could not owe a duty to his co-conspirator and it was not possible to set a standard of care. What’s more, risk and danger were inherent in the enterprise. Accordingly Mr Joyce’s own criminal conduct precluded him from recovering.
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