Date: 12/08/2016In the recent High Court case of Beaumont & O’Neill v Ferrer (2014) two claimants, who were seriously injured whilst attempting to fare jump a taxi, failed in their attempt to claim damages from the defendant taxi driver. Not only had the claimants brought their injuries upon themselves by their actions, but the principle of ex turpi causa operated to preclude them from succeeding. Sarah Mir and Tony McLoughlin review the decision.
The defendant taxi driver received a call one evening to make a pickup in Salford. On arrival he found six youths waiting. His taxi was a minivan with three rows of seats. One youth got in the front passenger seat, three in the middle row and the remaining two, the claimants, sat in the back row.
The youths asked the defendant to take them to Manchester but they had already agreed amongst themselves that they would ‘jump the taxi’ and make off without paying the £10 fare.
As the taxi stopped at a set of traffic lights near to the intended destination, the three youths sitting in the middle row of the taxi, got out and ran off. One of the escaping youths had tried to release the middle row seats to help the claimants out of the back row but was unable to do so. Another of the youths closed the offside sliding door.
The defendant then decided to drive off with the three remaining youths whilst the two claimants tried to climb over the back seats. As the taxi approached a corner, the first claimant suddenly left the vehicle. He had opened the offside door and positioned himself to get out. As he tried to leave he fell out backwards hitting his head on the road, sustaining a serious brain injury. Within seconds of his companion’s exit, the second claimant left the taxi and also fell sustaining serious injury.
Kenneth Parker J dismissing the claimants’ claims held:
In relation to the first claimant, the witness evidence that the defendant ‘seemed to take the corner normally’ was reliable and there was an overwhelming probability that the claimant chose to jump or step out of the moving taxi. He had taken a recklessly obvious risk to join his companions in crime and escape any other unwelcome consequences of his actions. The judge came to this conclusion without reference to the expert evidence but when considering that evidence did agree with the proposition that the taxi was right at the beginning of its turn, thus limiting the lateral force on the claimant’s fall.
In relation to the second claimant, the judge rejected the claimant’s expert evidence that the defendant’s overcorrection of the vehicle imparted such lateral force that the claimant fell out. The claimant had simply jumped out of the moving taxi.
The defendant had not done anything to put the claimants in the position where they were poised to exit the taxi and whilst the judge did not believe that fear of attack was the defendant’s dominant motive in driving off, it did play a part in his decision to drive off.
Even if the defendant was in breach of his duty of care by driving on as he did, that breach did not cause the claimants’ injuries as the conduct of each claimant in jumping or stepping out of the taxi broke the causal link between the fault and damage. Both claimants had the undeniable opportunity to resume their seats in the taxi and to put their seat belts back on at which point neither would have then sustained serious injuries. Instead the claimants deliberately chose to position themselves at an opened door of the taxi and jump/step out as the taxi was moving away. In essence, the claimants brought about the injury to themselves.
The judge rejected the claimants’ submission that the defendant breached his contract by driving on, discharging the claimants’ obligation to pay a fare. There was no act on the part of the defendant that converted the claimants from members of a joint criminal enterprise into genuine passengers by the time each jumped, or stepped out of the taxi.
The claimants had also argued that their offending was not of such gravity that it should engage the public policy of ex turpi causa. The judge commented that taxi drivers provide a valuable service to the community including to the vulnerable and disabled members of the community who would have substantial difficulty in travelling on public transport. Dishonest evasion of the fare by an individual or group should not be dismissed as just another inevitable expense of driving a taxi but should be seen for reasons of public policy as a pernicious and reprehensible practice.
Accordingly, the claimants who intended to engage in a criminal activity were precluded by the policy of ex turpi causa from succeeding in these claims and no part of the claimants’ loss could be attributed to the defendant.
This decision follows the Court of Appeal’s consideration of the principle of ex turpi causa in Gray v Thames Trains (2009) and Joyce v O’Brien (2014.) The distinction between this case and the latter was that the driver was not engaged in a criminal enterprise with the claimants.
The claims were dismissed on two grounds. They firstly failed on causation. Even if the taxi driver had breached his duty of care towards the claimants by driving off while they were standing inside the van and unrestrained, this did not cause the claimants’ losses. The losses occurred because of the claimants’ conduct in stepping or jumping from the vehicle as it was moving. This broke the chain of causation and in essence, the claimants brought their injuries upon themselves.
The claims also foundered upon the ex turpi causa defence. The circumstances of the accident were inextricably linked with the claimants’ criminal enterprise and therefore the principle was engaged. The court rejected the submission of the claimants’ counsel that the prospective offence was not sufficiently serious to invoke the defence of ex turpi; in fact it held that there were strong public policy reasons to apply it in this case.
For further information, please contact Sarah Mir, Senior Solicitor on 0151 907 3164 or Tony McLoughlin, Director on 0151 907 3042.