In some claims for compensation the injured person has been involved in some type of unlawful behaviour. What is the legal significance of this on rights to compensation? The relevant law is fraught with difficulty.

The first thing to note is that illegality, unless it is serious, is unlikely to be fatal to the recovery of compensation. Consider, for example, a motorist who is negligently injured in a car accident in circumstances where he did not wear a seat belt. Failing to wear a seat belt is unlawful, but that offence is insufficiently serious to result in the claim for compensation failing altogether. Instead, the compensation awarded merely will be reduced. The compensation payable will be cut back according to the doctrine of “contributory negligence”. This rule applies where the injured person failed to take reasonable care of their own safety (as is the case where one fails to use a seat belt). The size of the reduction depends on what is “just and equitable” in the circumstances of the case.

Even serious criminality, however, will not necessary bar compensation. Suppose that a person who was convicted of grave criminal offences several years ago is negligently run over while crossing a road. It is clear that the mere fact that the injured person has a criminal history is irrelevant to whether he is entitled to recover compensation (although in some circumstances, as a result of legislation, any compensation recovered might need to be applied for the benefit of victims of the person’s crimes). To be relevant, the offending, generally speaking, must not only be serious but must also be causally related to the loss suffered. In the example just given, there is no causal relationship between the offending and the injury. The offending happened years prior to the accident. Conversely, a claim that for compensation that is likely to fail for illegality is as follows. Suppose that X and Y steal a car. Y drives while X sits in the front passenger seat. Y negligently crashes it with the result that X is injured. It is likely that X’s claim for compensation will fail completely. The crime involved here – theft of a car – is serious, and the theft is causally related to the accident. The accident would not have occurred had X not stolen the car.

A frequently occurring scenario involves an injured person who claims compensation in respect of lost earnings where the earnings are somehow contaminated with unlawfulness. There are various possibilities here. The injured person might not have declared his earnings to the tax authorities. Or he might have been earning an income by working illegally (such as without the necessary immigration permission). There are no hard and fast rules that determine how these types of claim will be decided. The law on this point is patchy and the case law is far from perfectly consistent. One important point to bear in mind is that discussions between a client and his lawyer as to whether compensation can be claimed for lost illegal earnings are privileged. This means that the lawyer must keep the discussions confidential and cannot disclose them, even if the discussions reveal serious offending on the part of the client. In order to ensure that effective legal representation can be provided, therefore, it is important that clients make a clean breast of their situation to their lawyer.

If you have been injured in an accident and you are unsure whether you have rights to compensation, contact Stacks Goudkamp on 1800 25 1800 for a free, no obligation assessment of your claim from one of our friendly compensation experts, or make an online enquiry.

Written by Dr James Goudkamp

James Goudkamp is an Associate Professor of Law at the University of Oxford. He is the author of numerous books about personal injury compensation. James also practices as a barrister in London and assists Tom Goudkamp and his team with personal injury claims with a European connection.