Beaumont & Anor v Ferrer

A defendant who drives a taxi with an open door while unbelted passengers are poised to leave is in breach of the duty of care. A desire to preserve the fare does not justify driving on. Recovery may nevertheless be barred by ex turpi causa where the claimant’s criminal conduct is integral to the claim and the injury, rather than merely the occasion for the defendant’s tort. The criminal act may be treated as the real cause of the damage despite the defendant’s tort being a factual cause. The public-policy bar is not displaced by comparing the parties’ fault where no competing civil policy outweighs it. Making off without payment, followed by deliberately jumping from a moving taxi, was sufficiently integral to the injuries to bar recovery.

Six youths agreed to travel by taxi without paying the fare. Three left the taxi and ran away when it stopped. The driver then drove off with the two appellants and another passenger. Each appellant positioned himself at an open door and jumped from the moving taxi, suffering serious injury.

Following a liability-only trial in the High Court, Queen’s Bench Division, Manchester District Registry, Mr Justice Kenneth Parker held that any breach by the driver did not cause the injuries and that the claims were barred by ex turpi causa. The appellants appealed, arguing that the driver’s negligence caused or materially contributed to their injuries and that their criminality was too trivial or incidental to bar recovery. The central issues were breach, causation and illegality.

1. Appeal dismissed. Lord Justice Longmore gave the substantive judgment. Lord Justices Beatson and Moore-Bick agreed.
2. Breach of duty. The driver was negligent in driving away with an open door while the appellants were not wearing seat belts. His wish to retain the £10 fare, anger at fare evasion and understandable fear did not justify that course. He should either have allowed the remaining passengers to leave or driven them to the nearest police station. Once the first three youths had left, it was reasonably foreseeable that those in the rear seats would try to escape. The trial judge was therefore wrong to rely on lack of foreseeability.
3. Causation and illegality. The court considered Sacco v Chief Constable of South Wales Constabulary (Unreported, 15 May 1998), Vellino v Chief Constable of Manchester [2002] 1 WLR 218 and Gray v Thames Trains Ltd [2009] AC 1339. Even assuming that the driver’s breach was a factual cause, the appellants’ injuries were in reality caused by their own criminal acts of making off without payment. Their criminal enterprise was integral to the claim and the injuries, not merely incidental to the negligence. The reasoning in Joyce v O’Brien [2014] 1 WLR 70 supported that conclusion, while Delaney v Pickett [2012] 1 WLR 2149 was distinguishable because the criminal activity there was incidental to the negligence. The driver’s lack of participation in the crime placed the case in an especially strong position for applying the maxim.
4. Public policy and remaining issues. The approaches in Hounga v Allen [2014] 1 WLR 2889, Les Laboratories Services v Apotex Inc [2015] AC 430 and R (Best) v Chief Land Registrar [2016] QB 23 did not alter the result. The illegality was not collateral, and no competing public policy outweighed the principle that a claimant should not recover for the consequences of criminal conduct. It was unnecessary to decide whether the criminal acts were a supervening cause obliterating the earlier negligence, or to determine contributory negligence. The appeal was dismissed, with costs ordered in accordance with the draft order.

• Court of Appeal (Civil Division): In [2016] EWCA Civ 768 dated 19 July 2016, the court unanimously dismissed the appeal and ordered the appellants to pay the respondent’s costs.
• High Court, Queen’s Bench Division, Manchester District Registry: Mr Justice Kenneth Parker determined liability after trial and rejected the claims on causation and ex turpi causa. The citation of the decision is not stated in the judgment.