Damages and Restitution - Personal injuries - Contributory negligence – Civil Liability Act 1961 - Ex Turpi Causa Non Oritur Actio - Award of damages 

Facts: The plaintiff sought damages against the defendants for causing personal injuries to the plaintiff arising out of an alleged battery. The defendants took the defence of ex turpi causa non oritur actio and contributory negligence. 
Held: Mr. Justice Bernard J. Barton awarded damages to the plaintiff for the injuries sustained and for the pain and suffering caused. The Court, however, held that there would be a reduction of 40% of the amount of award of damages to the plaintiff as the initiation of the affray was intentional and deliberate. The Court noted that the maxim ex turpi causa non oritur actio had to be seen in the light of s. 57 of the Civil Liability Act. The Court held that the maxim was limited to the cases where the conduct of the plaintiff was clearly against public policy and grossly egregious. The Court found that though the plaintiff started the affray intentionally, yet the infliction of injuries by a baton by the defendants was done with retribution, and at that time the plaintiff was about to leave and was unarmed and thus, the defendants could not escape liability. The Court held that a total bar for recovery of damages based on the said maxim could not be granted in the present case as the aspect was well taken care of by way of contributory negligence. 
Shaughnessy, Donnacha v Nohilly, Martin
21/12/2016 No. 2013/1397 P [2016] IEHC 767