Hegarty v Shine

• Jurisdiction: Ireland
• Judgment Date: 02 December 1878
• Date: 02 December 1878
• Court: Chancery Division (Ireland)

Q. B. Div.

Before MAY, C. J., FITZGERALD and BARRY, JJ.

HONORIA HEGARTY

and

SHINE

Regina v. BennettENR 4 F. & F. 1105.

Regina v. Sinclair 13 Cox, C. C. 28.

Regina v. SandersENR 8 C. & P. 265.

Regina v. Flattery 13 Cox, C. C. 388.

Pearce v. BrooksELR L. R. 1 Ex. 218.

Collins v. Blantern 2 Wils. 341.

Walker v. PerkinsENR 3 Burr. 1568.

Taylor v. ChesterELR L. R. 4 Q. B. 309.

Holman v. Johnson Cowp. 343.

Stockdale v. OnwhynUNK 7 D. & Ry. 625.

Fivaz v. NicholsENR 2 C. B. 501.

Regina v. BennettENR 4 F. & F. 1005.

Regina v. Barrow 11 Cox, C. C. 191.

Regina v. Lock 2 Cr. Ca. R. 10.

Regina v. CaseENR 1 Den. C. C. 580.

Regina v. Sinclair 13 Cox, C. C. 28.

Regina v. SaundersENR 8 C. & P. 265.

Regina v. Williams Ibid. 286.

Christopherson v. Bare 11 Q. B. 473.

Regina v. BarrowELR L. R. 1 C. C. R. 156.

Regina v. CaseENR 1 Den. 380.

Regina v. FlatteryENR 13 Cox, 388.

Assault Action arising ex turpi caus

Von. II.] Q. B., C. P., & E.N. DIVISIONS. 273 HONORIA HEGARTY v. SHINE (1). a Assault-Action arising en turpi causa. The Defendant, who was infected with lues venerea, of which the Plaintiff was not aware, had carnal knowledge of the Plaintiff with her consent, and communicated the disease to her ; in an action for this, as for an assault : geld, per FITZGERALD and BARRY, J.T. (MAY, C. J., diss.), that the action, arising ex turpi causd , could not be sustained. Regina v. Bennett (4 F. & F. 1105) observed upon and disapproved of. ACTION tried before BARRY, J.., at the sittings after M. T., 1877. The plaint contained two counts for breach of promise of marÂÂriage, and two for assaulting the Plaintiff and infecting her with venereal disease; the defences were a denial of the promise and a denial of the assault. At the trial the Plaintiff failed to establish the counts for breach of promise of marriage, and her case was rested on the counts for assault. It appeared in evidence that the Defendant had had sexual connexion with the Plaintiff, a servant girl, several times in the years 1874 and 1875 ; that she became pregnant in the autumn of 1875, and was delivered of a child in 1876 ; that at the time of the birth of the child the Plaintiff and her child were both infected -with venereal disease, by which the health of both was permaÂÂnently injured ; and the Plaintiff deposed that she was not aware of the nature of the illness till after the birth of the child. The jury found a verdict for the Plaintiff, with 450 damages; and the Defendant having obtained a conditional order to set it aside on the ground of misdirection, and because it was against the weight of evidence, and because the damages were excessive : Heron, Q. C. (with him W. Al. Johnson, Q. C., and _Ronan), showed cause : There is no distinction between a civil and a criminal assault. The fact of infecting a person with venereal disease has been held (1) Before MAY, C. J FITZGERALD and BARRY, U. VOL. II. 2 A to be an assault : Regina v. Bennett (1) ; Regina v. Sinclair (2). Fraud. does away with consent: Regina v. Saunders (3); Regina v. FlatÂÂtery (4). Exham, Q. C., and O'Biordan contra : This case should not be entertained by this Court. The Court is asked to become assistant to exacting the price of prostitution ; ex turpi causd non oritur actio. Regina v. Bennett and Regina v. Sinclair should not be followed ; it was not necessary in them to decide that conveying infection of venereal disease constituted an assault. It has never been elsewhere decided. Cur. adv. suit. FITZGERALD, J. :- The action was for breach of promise of marriage and for an assault. The learned Judge at the trial held that the evidence was not sufficient to sustain the alleged promise to marry, and the Plaintiff's counsel acquiesced in his ruling. The question before us now is whether the action lies for an alleged constructive asÂÂsault. The evidence was very voluminous, but for obvious reasons I state its results as concisely as practicable. In 1874, the Plaintiff was seduced by the Defendant, and during the remainder of that year habitual sexual intercourse took place between them, which was continued down to November 1875. The Defendant swore that he gave the Plaintiff money on each occasion save the first. In November 1875 it was ascertained that the Plaintiff was pregÂÂnant, and she left Listowel, her former place of residence, and went to reside in Cork, where, in May, 1876, her child was born. Some time after the birth of the child the medical attendant of the Plaintiff discovered that both the mother and child were affected. with syphilis. The evidence was sufficient to establish that the disease had been communicated' to the Plaintiff by the Defendant in the course of the concubinage, and probably some time shortly prior to November 1875, as a letter from the Defendant to the Plaintiff given in evidence on the part of the Plaintiff indicates that the Defendant considered that there had then been something -wrong with him. (1) 4 F. & F. 1105. (3) 8 C. & P. 265. (2) 13 Cox, C. C. 28. (4) 13 Cox, C. C. 388. Va. II.] Q. B., C. P., & EX. DIVISIONS. 275 On this evidence the Plaintiff's counsel contended that the Q. B. Div. suppression by the Defendant from the Plaintiff of the fact that 1878. he was affected by disease vitiated her consent to the particular HEGARTY act of intercourse in which disease had been communicated to her, SINE. which, therefore, must be taken to have been without her consent and amounted to an actionable assault ; and he relied 06n the case of Regina v. Bennett (1), in which Wiles, J., held that an indictment for an indecent assault was maintainable where the prisoner conÂÂcealed from the woman that he was diseased, and communicated. the disease to her ; on the ground that an assault came within the rule that fraud vitiates consent. The learned Judge, for the purposes of the trial, yielded to the authority of Regina v. Bennett, and submitted certain questions to the jury, with a direction in substance as follows :-" That if the consent was obtained by the fraud of the party committing the act, the fraud vitiated the consent, and the act became in view of the law an assault ; and that, therefore, if the Defendant-knowing that he had venereal disease, and that the probable and natural effect of his having connexion with the Plaintiff would be to comÂÂmunicate to her the venereal disease-fraudulently concealed from her his condition in order to induce, and did thereby induce, her to consent to have connexion with him, and if but for that fraud. she would not have consented, and if he had connexion with her and thereby communicated to her venereal disease, ho had comÂÂmitted an assault, and one for which they might give substantial -damages." On that instruction in law, the jury found. in fact-that the Defendant knew that he had disease and communicated it to the Plaintiff, who did not know that he was so affected ; and on those findings the verdict was entered for the Plaintiff. I shall presently have to consider the authority of Regina v. Bennett, and the application of the principle "that, fraud vitiates consent" to such a case as that now before us. It seems to me, however, to be necessary to determine whether an action for a conÂÂstructive assault, arising out of such transactions as the Plaintiff has deposed to, can be maintained to recover pecuniary damages, or can in any shape receive the sanction of the Court. Ex tug pi causa non oritur actio is a maxim of the law and a. (1) 4 F. & F. 1105. - 2 A 2 LAW REPORTS (IRELAND). [L. R. L rule of public policy, and its due application tends, if not to reÂÂpress, at least to discourage vice and crime. To constitute causa tuipis it is not necessary that the trans. action should amount to a crime or to a breach of the positive law'-" immorality " is sufficient. No Court should lend. its aid. to a plaintiff whose claim is founded on his or her own immoral act. In the case of Pearce v. Brooks (1), Pollock, C. B., says, " nor can any distinction be made between, an illegal and. an immoral purpose." " Whether it is an immoral or an illegal purpose in which the plaintiff has participated, it comes equally within the. terms of the maxim, and the effect is the same. No cause of action can arise out of either the one or the other." Then does the Plaintiff's supposed cause of action spring from her own immorality ? What is it ? It is that, at some period in the course of a long-continued prostitution of her person to the lust of the Defendant, lie suppressed from her the fact that he had. contracted and was affected with venereal disease, and coramuniÂÂcated that disease to her. The Judge and. a jury were occupied for at least two days in investigating this case ; and we have had the time of this Court taken up for a considerable period in examining into its loathsome details, in order that the Plaintiff should recover damages for results arising from her own immoÂÂrality. The language of the judgment-seat has been, " You shall not stipulate for iniquity ; " and " No polluted hand shall touch the pure fountains of justice : " per Wilmot, C. I., in Collins v. Blantern (2). The policy of the law demands that for public protection the parties to illegal or immoral transactions shall have no redress against each other in a Civil Court for consequences flowing directly from their illegal or immoral acts-Memo ex turpi camel conseguitur actionem. The dignity of the Court requires that it should not be called on to investigate such transactions at the instance of either of the guilty participators, save where the public interests are involved in the repression of crime. The authorities on the subject are very numerous ; but I shall (1) L. P. 1 Ex. 218. (2) 2 Wils. 341. Q. B., C. P., & EX. DIVISIONS. VOL. 277 allude to a few only, commencing with one of doubtful genuineness Q. B. Div. -Everett v. Williams -often referred to, and given in the note to 1878. Pothier by Evans, vol. 2, p. 3. There...