• Robert Spicer

Ex turpi causa non oritur actio: Latin maxims alive and well in Scottish court

HEALTH AND SAFETY

Ex turpi causa non oritur actio: “from a dishonourable cause an action does not arise”

Case D Geddes (Contractors) Ltd v Neil Johnson Health & Safety Services Ltd [2017] CSON 42, Scottish Outer House

Facts DG Ltd, a quarry operator, was fined £200,000 for a breach of the Quarries Regulations 1999. A worker had been killed at DG Ltd’s quarry when a lorry was reversed into a feed hopper. The HSE had decided that a bund, which was intended to prevent such incidents, was ineffective. DG Ltd had engaged N as a health and safety adviser. N had carried out regular inspections and had provided reports. DG Ltd sought to recover £200,000 from N on the basis that an ordinarily competent health and safety adviser, exercising ordinary skill and care, would have advised that the bund was defective. If DG Ltd had been advised of this, it would have taken steps to rectify the defects before the incident and prosecution. N argued, as a preliminary point, ex turpi cause non oritur actio – DG Ltd could not recover a penalty imposed upon it for its own criminal act.

Decision 1. There was no authority for the proposition that recovery of a loss consisting of a criminal penalty or the consequences of a criminal sanction was necessarily excluded by the ex turpi causa principle.

  1. Intentional wrongdoing on the part of the claimant was not the only basis upon which a right of recovery of criminal penalties might be excluded. It could also be excluded by negligence.

  2. The case could proceed.

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