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Murphy v Culhane [1977] QB 94 Court of Appeal

Timothy Murphy was a man of 29. On the 19th September, 1974 he, with some other men decided to beat up another man called John Culhane. During the attack John Culhane struck Timothy Murphy on the head with a plank, and killed him. He was convicted of manslaughter. Timothy Murphy's widow brought an action against John Culhane for damages under the Fatal Accidents Act, claiming damages on behalf of herself and her baby daughter. The Defendant admitted the facts but wished to raise the defence of ex turpi causa. The Claimant applied for judgment under Order 27 Rule 3 which gives the court power to give judgment on admissions without trial. The judge felt compelled to give the judgment on existing authorities. The Defendant appealed contending the issues of ex turpi causa and volenti non fit injuria should go to trial.


The appeal was allowed.

Lord Denning MR:

If Murphy was one of a gang which set out to beat up Culhane, it may well be that he could not sue for damages if he got more than he bargained for. A man who takes part in a criminal affray may well be said to have been guilty of such a wicked act as to deprive himself of a cause of action, or, alternatively, to have had taken upon himself the risk. I put the case in the course of argument: Suppose that a burglar breaks into a house and the householder, finding him there, picks up a gun and shoots him - using more force, may be, than is reasonably necessary. The householder may be guilty of manslaughter and liable to be brought before the criminal court. But I doubt very much whether the burglar's widow will have an action for damages. The householder might well have a defence either on the ground of ex turpi causa non oritur actio or volenti non fit injuria. So in the present case it is open to the defendant to raise both those defences. Such defences would go to the whole claim.
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