![]() Martin sued Ziherl for damages in Virginia Circuit Court, and Ziherl argued that because of the case of Zyzk v. Ziherl, the two parties were girlfriend and boyfriend until Martin discovered Ziherl had given her herpes. If the illegality vanishes by result of legislative action (such as if the law that made the act that caused the injury was a crime is repealed) or some subsequent court case (where the law is declared invalid), the tort action will stand. ![]() Similarly, in Pitts v Hunt the Court of Appeal rationalised this approach, saying that it was impossible to decide the appropriate standard of care in cases where the parties were involved in illegality. Ewbank J held that the court may not recognise a duty of care in such cases as a matter of public policy. For example, in Ashton v Turner the defendant injured the plaintiff by crashing the car they sat in together in the course of fleeing the scene of a burglary they had committed together. In some cases, it seems that the illegality prevents a duty of care arising in the first place. ![]() The precise scope of the doctrine is not certain. Old common law authorities and the Law Commission report (Liability for Damage or Injury to Trespassers) acknowledged the existence of some duty towards trespassers and the defendant could not rely on the doctrine to relieve himself of liability. On appeal the defendant raised the defence of ex turpi causa, but the Court of Appeal held that while public interest required that someone should not benefit from his illegal conduct, different considerations applied in cases arising in tort as opposed to those in a property or contract context. At first instance, the judge awarded damages on the basis that the defendant had used violence in excess of the reasonable limits allowed by lawful self-defence and was negligent to the standard of care expected of a reasonable man who found himself in such a situation. On hearing the plaintiff trying to break in, he shot his gun through a hole in the shed, injuring the plaintiff. For example, in Revill v Newbery an elderly allotment holder was sleeping in his shed with a shotgun, to deter burglars. In Hewison v Meridian Shipping Services Pte Ltd, an employee who had obtained his position by concealing his epilepsy was held not to be entitled to claim compensation for future loss of earnings as a result of his employer's negligence, since his deception (resulting in a pecuniary advantage contrary to the Theft Act 1968) would prevent him from obtaining similar employment in future. If two burglars, A and B, agree to open a safe by means of explosives, and A so negligently handles the explosive charge as to injure B, B might find some difficulty in maintaining an action for negligence against A. In National Coal Board v England Lord Asquith said, In the law of tort, the principle would prevent a criminal from bringing a claim against (for example) a fellow criminal. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it for where both were equally in fault, potior est conditio defendentis. It is upon that ground the court goes not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. ![]() ![]() If, from the plaintiff's own standing or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. The principle of public policy is this ex dolo malo non oritur actio. It is not for his sake, however, that the objection is ever allowed but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. In the early case of Holman v Johnson Lord Mansfield CJ set out the rationale for the illegality doctrine. Main article: Illegality in English law Development Negligent infliction of emotional distress.Intentional infliction of emotional distress. ![]()
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