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Jumping away from recovering damages

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Personal Injury analysis: Sarah Mir, senior solicitor at DWF LLP comments on the result of Beaumont and another v Ferrer [2016] EWCA Civ 768. The case concerned two young men who were injured while trying to follow their friends out of a taxi without having paid the fare. The youths had been driven from Salford to Manchester in the taxi. 

What issues did this case raise?

In 2014, the High Court found that the defendant taxi driver who had driven off with two of his passengers, the claimants, as they were attempting to ‘jump’ his cab had not breached his duty of care—they had brought their injuries upon themselves by alighting the vehicle as it was moving.

In short, the defendant successfully relied upon the ‘ex turpi causa’ or illegality defence because the passengers were engaged in a criminal enterprise.

While the judgment sounds ‘right’ in principle, the reality is the claimants would not have sustained injury if the defendant had driven with due care and attention, albeit he stood to lose his fare. The claimants’ appeal was dismissed by the Court of Appeal even though it was accepted that the taxi driver had committed a tortious act ie, he drove the vehicle with an open door knowing the appellants were unrestrained. However, because they recklessly jumped out of a moving vehicle without paying their fare, the passengers were denied the right to recover for the consequences of their criminal conduct.

In essence, the passengers’ criminal conduct sufficiently broke the chain of causation between the defendant’s tortious conduct and the injuries sustained to prevent recovery of damages.

Why is it significant?

The judgment is significant as the courts could have made a finding on behalf of the claimants but reduced damages for contributory negligence. However, for policy reasons, as the claims were founded upon the passengers’ own criminal activity, they were precluded from recovering damages.

The circumstances of the accident were inextricably linked with the claimants’ criminal enterprise and therefore the illegality principle was engaged.

What does this mean for lawyers and their clients?

Practitioners and insurer clients should resist automatically compromising the issue of causation in cases of this nature and consider the likelihood of recovery of damages being achieved. While cases are fact specific, it may be appropriate to plead the illegality defence if it can be established that the claimant’s injuries were caused by his/her own criminal conduct.

How helpful is this judgment in clarifying the law in this area? Are there any remaining grey areas?

While the scope of what criminal conduct comprises before it eclipses any wrong-doing of the defendant is not entirely clear, generally speaking, it has to be sufficiently serious before triggering the doctrine of ‘ex turpi causa’. Whether this judgment reflects a hardening of judicial attitudes to criminal activity and the ability to recover damages in the event of a mishap is less clear.

Interviewed by Anne Bruce

The views expressed by our Legal Analysis Interviewees are not necessarily those of the proprietor

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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