England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
MR JUSTICE KENNETH PARKER

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/07/2016

Lord Justice Longmore:

1. The appeal is about six young men in Salford deciding to "jump" a taxi without paying the fare. Three of them succeeded but two others could not get out of the taxi at the same time and when they did they sadly sustained very serious injuries. The trial was on liability only. I gratefully adopt the judge's account of the facts.

The Facts

2. The Defendant, David Ferrer, aged 59, was at the material time a very experienced, self-employed licensed taxi driver in Salford, who received work from Swan Taxis. He owned and drove a Nissan Serena minivan. The vehicle was not powerful and had a relatively poor performance. There were three rows of seats inside this minicab which I will call "the taxi". The middle and back rows were each capable of accommodating three passengers, although the middle row was divided. There was one rear sliding door on each side, which did not extend to the rear row of seats. The seat backs of the middle seats could be tipped forward and the seats lifted to allow anyone sitting on the back seats to leave the vehicle. The mechanism for the seats was not easily found and was difficult to access for anyone sitting in the back seats. If the minicab was fully occupied, space was restricted and there was limited head room between the tops of the seats and the roof. Mr Ferrer did not lock the doors when passengers were being conveyed.
3. In the early evening of 27 July 2009 Mr Ferrer received a call from his control room, asking him to collect a fare from 109 Tootal Drive, Salford. The booking had been made from the house of the parents of Connor Emery, then aged 11. Mr Ferrer arrived at 109 Tootal Drive, and found six youths waiting for him at the bus stop across the road. They were the first claimant, Joseph Beaumont, then aged 17, the second claimant, Lewis O'Neill, also then aged 17, Connor Emery, Robert Malloy, aged 13, Bradley Smith, aged 14 and Luke Bullcock, aged 17. Mr Ferrer was asked to take the youths to "Urbis", in Manchester city centre.
4. The six youths had already agreed among themselves that no one of them would pay the eventual taxi fare. Indeed that appeared to be the main point of the excursion into Manchester. They would, as they put it in their street patois, 'jump the taxi', that is, take an appropriate opportunity at or near their destination to get out of the taxi and make off without paying the fare. It was Bradley Smith who proposed that the group should 'jump the taxi' into Manchester. Luke Bullcock said in his police interview: ' … it was around 8 o'clock that Lewis [O'Neill], Joe [Joseph Beaumont] and Brad [Bradley Smith] came around and said do you fancy coming into town? We'll jump a taxi'. The whole group was present when the agreement was made.
5. When the taxi arrived Connor Emery got into the front passenger seat. Robert Malloy, Bradley Smith and Luke Bullcock got into the middle row, and the two Claimants got into the back seats. The taxi drove into Manchester, coming down Blackfriars Street towards the junction with Deansgate. At this point, Connor Emery, pursuant to the criminal joint enterprise, put his hand on the door handle, realising that the taxi was close to the destination and in preparation for the planned 'jump'. Mr Ferrer from his experience immediately appreciated that the youths almost certainly intended to 'jump' his taxi. Nonetheless he told the occupants that the fare for the journey was £10, and asked for payment. He did not proceed to the destination, 'Urbis' (a short distance away), but stopped near the traffic lights towards the end of Blackfriars Street, to let his passengers out of the taxi. The traffic lights were then on red. From CCTV stills and from witness evidence, the exact location of his halt on Blackfriars Street cannot certainly be stated. However, it is probable that he stopped in the line of traffic, somewhere along the area marked 'coach drop off', towards the front area marked for taxis, near the Renaissance Hotel.
6. When the taxi stopped, Bradley Smith straightaway took the lead in the criminal enterprise. From his central position in the middle row of the taxi he leaned over to open the nearside door and loudly shouted something to the effect of 'get out'. He, Robert Malloy and Luke Bullcock got out of the taxi, and took swiftly to their heels. Bradley Smith was shown on the CCTV turning and running from the crime scene. Three independent witnesses saw these youths exit the taxi, and each formed the (correct) impression from the manner of their departure that they were 'jumping' the taxi. Just before taking off, Bradley Smith had tried to release the seats of the middle row so as to facilitate the egress of the claimants in the back row, but he was unable to do so. It was likely that the taxi had started to move forwards as he made his unsuccessful attempt to allow his two companions to escape the taxi. Luke Bullcock's evidence was that, after he left the taxi, he closed the offside sliding door. As the first three youths were leaving the taxi, Beaumont was clambering over the seats of the middle rows, with the intention of exiting the taxi and joining his companions, and within seconds O'Neill had put his leg over the seat in front of him.
7. Mr Ferrer then drove off with the three remaining occupants of the taxi, namely the claimants and Connor Emery (still in the passenger front seat). He was questioned, both in his police interviews and in cross examination at the trial, why he had done so. He said he was in fear of being attacked and that he had panicked. The year before a group of youths had directed him to a cul de sac where he had been attacked and stabbed twice in his cab, suffering very serious injuries. In his police interview he said this:-

"I panicked. I think as I've said to you I've been stabbed. I nearly lost my life. It's like déjà vu. It's like all over again, it's happening again I didn't know what weapons they might have …

when I'm driving my vehicle and when I'm fearing for my life I am not going to start reasoning with them 'I wouldn't jump out here pal' …

all I wanted to do was take my vehicle and myself out of that area. The fastest, the safest way to do that was to drive it away …"

8. In the light of this the judge accepted that fear played some part in Mr Ferrer's decision to drive off, but said that other factors played a larger part. He was justifiably aggrieved and understandably angry that another group of youths was committing a criminal offence at his expense, namely evasion of a fare, and he wished to do something to impede the three youths left in the taxi from exiting and making off without payment. He believed, probably correctly, that if the offenders did take off, the police would have little interest in him as a victim of this dishonest offending. He did suggest in evidence that he was contemplating taking at least Connor Emery to the nearest police station, and he may well have had some such strategy in mind when he drove off.
9. In any event, Mr Ferrer pulled away sharply from a point on Blackfriars Road some distance back from the junction and turned the corner into Deansgate at no more than 20 m.p.h. All the experts agreed that Mr Ferrer took the turn at a speed that was close to the limit for the vehicle in question and greater than that which could safely be recommended. Mr Ferrer did not lose control. There were no tyre marks on the road suggesting that the vehicle skidded, and no independent witness observed any skidding. The judge held that there was no excessive acceleration.
10. As the taxi approached the corner, or was beginning the turn, Beaumont left the vehicle. He had been clambering over the middle seats intending to get out of the taxi as part of the criminal enterprise. The offside door was closed, and he had the clear choice to remain in the taxi at this point, re-seat himself, put on his seatbelt and to be carried with complete safety. Instead he chose to open the offside door and deliberately positioned himself to get out of the taxi even though it was now moving, albeit slowly. This was confirmed in particular by the evidence of Mr Thew, who was on the corner of Blackfriars Street and Deansgate, and had a good view of the offside of the taxi as it turned the corner relatively close to his position. His evidence was that as the vehicle began to turn the corner, the body of Joseph Beaumont, who was half in, half out of the taxi, shifted with the position of the vehicle so as to face the inside of the taxi. He then came out backwards and landed on his back, his head hitting the road. Mr Thew said: 'I cannot say whether it was a result of him stepping out or the motion of the vehicle that caused him to exit'. A Mr Taylor said in an agreed witness statement that Beaumont 'seemed to be trying to judge the right moment to get out", and then he fell out backwards. Mr Taylor said that he could not tell for sure whether Beaumont jumped or fell, but his impression was that 'he was trying to get out of the vehicle whilst it was moving'.
11. Neither of these witnesses had full appreciation of the context in which Beaumont had dangerously positioned himself at the door of the moving taxi, namely, with the intention of taking the final step in the planned criminal enterprise to 'jump' the taxi; and the exit was a sudden and momentary event. The judge held that Beaumont chose to jump or step out of the moving taxi, because the original plan to 'jump' the taxi had not been abandoned. He held further that Beaumont simply miscalculated the extent of the risk of his undertaking, thinking in his eagerness to get away that he could step or jump out without causing himself injury, or, at least, significant injury, and went on recklessly to take the obvious risk of jumping out of the taxi, in an effort to evade payment and to join his companions in crime, as well as to escape any other unwelcome consequences of his actions. Unfortunately, he landed backwards, not being able to control his landing, hit his head on the road and sustained serious brain injury.
12. Mr Ferrer continued to drive up Deansgate, holding Emery's arm as he did so, after Beaumont 'jumped' the taxi. Mr Ferrer said that he did not know Beaumont had got out nor that he was now lying seriously injured in the road. The judge accepted that evidence.
13. Within seconds O'Neill also left the taxi as it continued to drive up Deansgate. When the taxi was at the end of its left hand turn, but continuing to turn left towards the centre of the carriageway, he positioned himself at the nearside door of the taxi in such a way that he was outside the vehicle. He then jumped from the taxi with intent to evade payment of the fare and to join the other members of the criminal enterprise. It is highly improbable that O'Neill knew, or had any reason to believe, that Beaumont was lying in the road, injured, as a result of his decision to 'jump' the taxi. O'Neill left the taxi within seconds of his companion's exit, and he would have been entirely preoccupied, during that brief interval, in calculating how he too could get out the taxi. He was also seriously injured but not as badly as Beaumont.

The Judgment

14. The judge held that each claimant had the opportunity to resume their seats in the taxi, and to put their seat belts back on, and that, if they had done so, would not have sustained the serious injuries that they did sustain. However, each chose not to do so but rather to position himself at an opened door of the taxi and to jump out of the taxi as it was moving away. Neither had any legitimate reason for this deliberate and utterly reckless decision. The reason why each took that decision was that he had agreed to carry out a joint criminal enterprise to 'jump' the taxi, three of their companions had already successfully played their part in that enterprise, and he was determined to do the same, even if the risk was now heightened. Mr Ferrer had done nothing to put either Beaumont or O'Neill in the position where they were poised to exit the taxi, and, on the best view of the evidence, he did nothing to lead to their decisions to leave the moving taxi. The execution of the criminal enterprise, with three youths already having left the taxi and run away, put Mr Ferrer in a difficult dilemma. Fear of attack was not the dominant motive, but it did play a part in his decision to drive off.
15. Mr Willems for the claimants had submitted that Mr Ferrer at that point should have allowed all the youths to leave the taxi and successfully to complete their criminal enterprise, and should simply have resigned himself to the inevitable loss of the fare and the unlikelihood of any of the offenders being apprehended and sanctioned for their wrong doing. The judge held that, even if Mr Ferrer should have followed that course and in not doing so was at fault, that fault followed from the criminal intentions and actions of the youths in the taxi, and any degree of fault was simply overwhelmed by those intentions and actions. He also held as a matter of law that, even if Mr Ferrer was in breach of his duty of care by driving on as he did, that breach did not cause the claimants injuries. He relied for that purpose on Spencer v Wincanton Holdings Ltd [2009] EWCA Civ 1404 [2010] PIQR. P.8, a case in which a new cause had intervened at a later date to obliterate the earlier negligence. In any event, the Claimants were barred from recovery by the maxim ex turpi causa non oritur actio.

Submissions to this court

16. Mr Marc Willems QC (as he now is) repeated his submission to the judge on breach of duty pointing out that Mr Ferrer either knew or ought to have known that, after the first three youths had jumped out of his vehicle, the two youths at the back of the vehicle would be trying to exit his taxi, that they were not wearing seatbelts and that one of his doors was open; yet he drove off in circumstances in which it was obvious that injury would result. Mr Ferrer was therefore responsible for the ensuing injury even if there might be a substantial measure of contributory negligence. There were thus two causes of the injuries and it could not be said that Mr Ferrer's fault was overwhelmed by the claimants' intentions and actions. He submitted further that their criminal enterprise was too trivial to engage the ex turpi maxim; the criminality did not cause the injury; it was merely the circumstance in which Mr Ferrer's negligence occurred.
17. Ms. Suzanne Chalmers for Mr Ferrer accepted that he had been negligent in driving off after the three other youths had left his taxi, since he knew that a door was open and that Beaumont and O'Neill were not wearing seatbelts, but relied on the judge's finding (para. 13) that it was not foreseeable that the claimants would be so foolhardy as to position themselves in readiness to jump out of the vehicle. The cause of the injuries was the claimants' own folly not anything done by Mr Ferrer who faced the dilemma of either losing his fare if he stopped or endeavouring to prevent the claimants' criminal enterprise by driving away. In that sense jumping out of the taxi was an intervening cause and there was no liability. If there was, the claimants' contributory negligence at worst negated any negligence to the extent of about 90%. In any event the agreement to jump the taxi constituted a crime sufficient to bar any remedy. The ex turpi principle was not subject to any exercise of weighing fault if the injury was inextricably linked to the relevant crime, which was a contravention of section 3 of the Theft Act 1978, making off without payment.

Negligence

18. Ms. Chalmers was correct to accept that Mr Ferrer had been in breach of his duty of care to his passengers. His choice was either to let the remaining three of his passengers out of his vehicle or to drive them to the nearest police station. Although it is entirely understandable that he did not want to lose his comparatively modest fare of £10, that was not an excuse for driving off with an open door when the claimants were not wearing their seat belts. In the circumstances the judge was, with respect, wrong to say that it was not reasonably foreseeable that Beaumont would position himself with a view to jumping the taxi; it was regrettably all too foreseeable once the first three youths had put their part of the criminal enterprise into effect. I do not therefore think that Mr Ferrer can rely on the judge's finding of lack of foreseeability in order to escape any liability for prima facie negligence.

Causation and the ex turpi maxim

19. In the light of Gray v Thames Trains [2009] AC 1339 it is sensible to consider these aspects of the case together, although it is necessary to consider two earlier authorities before coming to Gray.
20. In Sacco v Chief Constable of South Wales Constabulary (Unreported, 15 May 1998) Mr Sacco had been arrested and put in a police van. While in the van he decided to escape, kicked open the rear door jumped from the van when it was travelling at about 25 miles per hour and was seriously injured. His claim was rejected on the basis of the ex turpi maxim. Beldam LJ, observing wryly that the case had been brought in an era when common sense was no sufficient foundation for legal decisions, said that a criminal could not recover against a defendant who had participated in his crime and that the innocent police should not be in a less favourable position when they had not been guilty of any criminal conduct themselves. Schiemann LJ said that Mr Sacco was the author of his own misfortune and secondly that he was engaged in the criminal act of attempting to escape from lawful custody. Similarly it can be said in the present case that Beaumont and O'Neill were also the authors of their own misfortune in that, in jumping out of the taxi, they did something that they knew or must be taken to know was dangerous and that they were engaged in the criminal offence of making off without payment. Schiemann LJ concluded by saying:-

"Whether one expresses the refusal of a remedy as being based on absence of causation, absence of duty in these circumstances… or as being based on the application of the principle that a plaintiff as a matter of policy is denied recovery in tort when his own wrongdoing is so much part of the claim that it cannot be overlooked… is perhaps a matter of jurisprudential predilection on the part of the judge."

Thorpe LJ agreed with both judgments.

21. Vellino v Chief Constable of Manchester [2002] 1 WLR 218 was also a case of escape from lawful custody; the claimant had jumped from a window of his second floor flat, after the police, not for the first time, had arrested him. It was found that the police had permitted (but not encouraged) Mr Vellino to jump from the window but that there was no duty on the police to take care that an arrested person was not injured in a foreseeable attempt to escape since escaping from custody was sufficiently serious to require the ex turpi maxim to be applied. This court upheld the decision by a majority. Schiemann LJ repeated the reasons he gave in Sacco. Sir Murray Stuart-Smith agreed with the second of those reasons and held that Mr. Vellino's criminal conduct was integral to the claim. At para. 70 he derived the following propositions from previous authority:-

"1. The operation of the principle arises where the claimant's claim is founded upon his own criminal or immoral act. The facts which give rise to the claim must be inextricably linked with the criminal activity. It is not sufficient if the criminal activity merely gives occasion for tortious conduct of the Defendant.

2. The principle is one of public policy; it is not for the benefit of the Defendant. Since if the principle applies, the cause of action does not arise, the Defendant's conduct is irrelevant. There is no question of proportionality between the conduct of the Claimant and Defendant.

3. In the case of criminal conduct this has to be sufficiently serious to merit the application of the principle. Generally speaking a crime punishable with imprisonment could be expected to qualify. If the offence is criminal, but relatively trivial, it is in any event difficult to see how it could be integral to the claim.

4. The Law Reform (Contributory Negligence) Act 1945 is not applicable where the Claimant's action amounts to a common law crime which does not give rise to liability in tort."

Sedley LJ dissented on the basis that there was no room for the application of the maxim in tort cases since the Law Reform (Contributory Negligence) Act 1945, but the law has not, so far, developed along those lines.

22. Gray v Thames Trains Ltd [2009] AC 1339 was a case which raised the question whether a negligent defendant was liable not merely for ordinary loss resulting from an accident causing trauma and post-traumatic stress disorder (PTSD) but also for further (and subsequent) loss occasioned by Mr. Gray's conviction for manslaughter of an innocent man as a result of his suffering from PTSD. The House of Lords, restoring the judgment of Flaux J, held that the defendant was not liable for that additional loss because it was caused by Mr. Gray's own criminal act. The judgment of Lord Hoffmann, with whom the other members of the House agreed in principle, contained a wide-ranging discussion of the ex turpi maxim in both its narrower and its wider form as explained in para. 32. He observed in paras. 52-3 that the wider form of the principle (that a claimant could not recover for damage which is the consequence of his own criminal act) had been applied in Vellino which he described as a decision "based upon sound common sense." He then said (para. 54):

"It might be better to avoid metaphors like "inextricably linked" or "integral part" and to treat the question as simply one of causation. Can one say that, although the damage would not have happened but for the tortious conduct of the defendant, it was caused by the criminal act of the claimant? (Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218). Or is the position that, although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant? (Revill v Newbery [1996] QB 567)."

23. Joyce v O'Brien [2014] 1 WLR 70 was a case of a claimant suing a defendant when they had both participated in a theft of some ladders which they put in the back of a van. The defendant was the driver and drove away from the scene with dangerous speed. The claimant fell out of the back of the van. The defendant was undoubtedly negligent but the claimant could not recover because the ex turpi maxim applied to his own criminal participation in the exercise. The court distinguished Delaney v Pickett [2012] 1 WLR 2149 in which the claimant passenger was held entitled to recover from the negligent driver of the car in which they were travelling, although both parties were transporting herbal cannabis in the car, because the transportation of the cannabis was incidental to the negligence. In Joyce, by way of contrast, illegality "affected the standard of care which the claimant is reasonably entitled to expect from his partner in crime." (para. 28 per Elias J.)
24. The present case is not, of course, a case in which the defendant is a partner in the claimants' crime and he should therefore be in a stronger case for the application of the maxim, especially since the crime of making away without payment was far from incidental (but integral) both to the claim itself and any negligence on the part of the driver.
25. If, therefore, one seeks to answer the question posed by Lord Hoffmann in para. 54 of Gray, I would say that, as in Vellino, even it if could be said that the claimants' injuries would not have happened but for the tortious conduct of Mr. Ferrer, they were in reality caused by the claimants' own criminal acts of making off without payment and that, therefore, there should be no recovery.
26. That is where I would leave this case. It is notorious that the ex turpi maxim has received recent consideration in the Supreme Court in Hounga v Allen [2014] 1 WLR 2889 and Les Laboratories Services v Apotex Inc [2015] AC 430 and that there is some disagreement as to the terms in which the principle behind the ex turpi maxim should be stated. But Sales LJ has said recently, in R (Best) v Chief Land Registrar [2016] QB 23 at para. 61, that the latter case is compatible with the former because both cases say that, if the criminal illegality is collateral to some civil claim, that is another way of saying that the public policy associated with the particular crime is not centrally engaged and is outweighed by other public policies inherent in the relevant civil law. In the present case the making away without payment is certainly not collateral to the civil claim nor are there other public policies which can be said to outweigh the principle that those engaged in the commission of a crime should not be able to recover for the consequences of their criminal conduct.
27. I do not consider, therefore, that the current divergence of opinion in the Supreme Court about the scope of the defence of illegality in tort can affect the outcome of this appeal. Nor is it necessary to consider whether the judge was correct to regard the conduct of Beaumont and O'Neill as a supervening cause which obliterated any earlier negligence of Mr Ferrer.
28. I would dismiss this appeal.

Lord Justice Beatson:

29. I agree.

Lord Justice Moore-Bick:

30. I also agree.

Case No: B3/2014/2872

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

QUEEN'S BENCH DIVISION

MANCHESTER DISTRICT REGISTRY

B E T W E E N:

JOSEPH BEAUMONT (1) LEWIS O'NEILL (2)

Appellants

and

DAVID FERRER

Respondent

______________________________________________ Draft ORDER ______________________________________________

UPON hearing Leading Counsel for the Appellants and Counsel for the Respondent

IT IS ORDERED THAT:-

1. The Appeal is dismissed.

2. The Appellants shall pay the Respondent's costs of the appeal. Any costs incurred from 26^th June 2015 shall not be enforced without the leave of the court to reflect the fact that the appellants have had the benefit of Legal Aid since that date pursuant to section 26 of LASPO.

3. The Respondent's costs incurred prior to 26 June 2015 are be subject to detailed assessment on the standard basis if not agreed. In respect of the Respondent's costs incurred on or after 26 June 2015, the Appellants shall pay to the Respondent an amount to be determined by the Costs Judge.

4. There shall be a detailed assessment of the costs of the Appellants which are payable by the Lord Chancellor out of legal aid funds.

Dated this 19th day of July 2016