Delaney v Pickett [2011] EWCA Civ 1532

Key point

  • For the illegality rule in tort law to apply, it is not sufficient that the tort occurred in the course of illegal conduct, the illegality must be an immediate cause
  • This case is an application of the wider rule stated by Lord Hoffman in Gray v Thames Train to joint illegal enterprise cases


  • C and the driver (D) were transporting a significant quantity of cannabis in a vehicle
  • D negligently lost control of the vehicle and the C was injured from the collision
  • C sued D for damages in negligence


  • Did D have the defence of illegality?

Held (Court of Appeal)

  • D was liable, his claim was not barred by illegality

Ward LJ

Correct test for the wide rule: [36] – [37]

  • Whether illegality applies is not a question of whether it is impossible to determine a standard of care or whether granting damages would be an affront to the public conscience
  • The crucial question is whether criminal activity merely gave occasion to the tortious act by D or it was an immediate cause, not merely in the sense that the injury would not have happened but for the criminal activity

Current case

  • C’s criminal activity did not cause the accident but was only incidental to it
  • The immediate cause was D’s negligent driving: [37]


  • Ward LJ rejected Balcombe LJ’s test for illegality in Pitts v Hunt and followed Dillon LJ’s test as well as Lord Hoffman’s test in Gray v Thames Train