Topp v London Country Bus (South West) Ltd

A defendant is not generally liable for injury deliberately caused by an independent third party merely because the defendant was at fault. The third party’s conduct may break the chain of causation.

Whether a duty exists to protect against such wrongdoing depends on principle and the particular facts. An unlocked, readily driveable bus left unattended with its key did not create a special category of risk. The bus company therefore owed no duty of care to a person killed by a thief driving the bus, and the appeal was dismissed.

The claimant sought damages after his wife was killed by an unidentified person who hijacked the defendants’ minibus. The bus had been left unlocked in a highway lay-by with the ignition key available. The defendants knew that it remained there after the expected replacement driver failed to attend.

Mr Justice May dismissed the negligence claim after trial on 8 November 1991. The claimant appealed, arguing that the bus was a special source of danger, that the risk was sufficiently high to create a duty of care, and that the judge had applied the duty-of-care tests in Caparo Industries Plc v Dickman [1990] 2 AC 605 too rigidly. The central issue was whether the defendants owed a duty to protect against the wrongful taking and driving of the bus.

The Court of Appeal unanimously dismissed the appeal with costs. Lord Justice Dillon gave the principal judgment. Lord Justice Rose and Mr Justice Peter Gibson agreed, although both doubted whether the relationship between the deceased and the defendants had sufficient proximity.

1. The general principle stated in Smith v Littlewoods Organisation Ltd [1987] AC 241 was accepted. Even where a defendant is at fault, injury deliberately caused by an independent stranger may result from a novus actus interveniens. The court also relied on the guidance that the existence of a duty to protect against third-party wrongdoing is primarily for the judge of fact, with appellate interference limited once the issue has been determined on the correct basis.
2. Leaving the bus unlocked with its key in the ignition did not place the defendants’ conduct in a special category of risk. P. Perl (Exporters) Ltd. v Camden London Borough Council [1984] QB 342 concerned materially different circumstances in which the defendant presented a wrongdoer with the means to commit the wrong when that conduct was obvious or very likely.
3. The court followed Denton v United Counties Omnibus Company Ltd (C.A. Transcripts 1st May 1986). There was no valid distinction between buses left readily capable of being driven away from an open private bus station and a bus left in a public highway lay-by. In each situation the buses were an allurement to an ill-minded person, and no duty of care arose.
4. Mr Justice May had applied principle to the particular facts and had not laid down a rigid rule for all future cases. There was no basis for interfering with his conclusion.

• Court of Appeal (Civil Division): dismissed the appeal from the judgment below and ordered the claimant to pay the costs.
• High Court of Justice, Queen’s Bench Division: Mr Justice May dismissed the negligence claim after trial on 8 November 1991.