of liability. The precise scope of the doctrine is not certain. In some cases, it seems that the illegality prevents a duty of care arising in the first place. For example, in Ashton v Turner the defendant injured the plaintiff by crashing the car they sat in together in the course of fleeing the scene of a burglary they had committed together. Ewbank J held that the court may not recognise a duty of care in such cases as a matter of public policy. Similarly, in Pitts v Hunt the Court of Appeal rationalised this approach, saying that it was impossible to decide the appropriate standard of care in cases where the parties were involved in illegality. If the illegality vanishes as a result of legislative action (for example a law making a tortious act not tortious) or some subsequent court case where the law is declared invalid, the tort action will stand. In the case of Martin v. Ziherl, the two parties were girlfriend and boyfriend until Martin discovered Ziherl had given her herpes. Martin sued Ziherl for damages in Virginia Circuit Court, and Ziherl argued that because of the case of Zysk v. Zysk since having sex with someone they were not married to was technically the crime of fornication, Martin could not sue Ziherl because she got herpes as a result of the illegal act. Martin argued the act was unconstitutional. The court agreed with Ziherl and against Martin. Martin appealed, and the Supreme Court of Virginia reversed, agreeing with Martin's argument that because the United States Supreme Court had decided in Lawrence v. Texas that noncommercial, private intimacy was a protected right, the law-making fornication a crime was unconstitutional, thus Martin could now sue since the law that made having sex with someone they were not married to was struck down as void. Trusts In other cases, the courts view as a defence where otherwise a claim would lie, again on grounds of public policy. In Tinsley v Milligan (overruled by Tinsley v Milligan) Nicholls LJ in the Court of Appeal spoke of the court having to "weigh or balance the adverse consequences of granting relief against the adverse consequences of refusing relief". The plaintiff was ultimately successful in Tinsley v Milligan in the House of Lords, which allowed the claim on the grounds that the plaintiff did not need to rely on the illegality. Moore