Court of Appeal clarifies that people injured as a direct result of their intentional criminal actions should not recover damages

Posted: 08/08/2016

The appeal of Beaumont & O'Neill v Ferrer [2016] EWHC Civ 768 recently upheld a finding that, where two claimants were injured because of their own criminal actions, they should not recover damages against a third party involved in the accident.

In this case, the defendant was a licensed taxi driver in Manchester who picked up a group of six people, two of whom were the 17 year old claimants in the case. The group had agreed among themselves before being picked up that they would 'jump the taxi'. That is, they planned to get out of the taxi close to their destination and make off without paying the fare.

The defendant stopped at a set of red traffic lights near the destination and stated the fare. At that point, three of the group jumped out of the taxi and ran off. The defendant drove off with the three remaining occupants of the taxi - the two claimants and another person. As he turned a corner, one of the claimants, Beaumont, either jumped or stepped out of the moving taxi, landed backwards, hit his head on the road and sustained serious brain injury. Almost immediately after Beaumont left the taxi, the second claimant, O’Neill, also attempted to leave the moving taxi. O’Neill suffered injuries from exiting the moving car too, although not to the same degree as Beaumont.

The two claimants subsequently brought claims for damages against the taxi driver. The basis of the claim was that the defendant knew that the taxi door was open when he drove off from the lights as it had been left open by the first group who ‘jumped’ the taxi; that there was a risk that the other members of the group would try and exit the vehicle; and that he should not have driven off and kept moving. In the initial liability trial, the judge held that:

• the claimants had agreed to carry out a joint criminal enterprise to 'jump' the taxi
• the decision to exit the taxi and how and when to do it was nothing to do with the defendant
• it had not been foreseeable that the claimants would be so foolhardy as to have positioned themselves in readiness to jump out of the vehicle and would, in fact, attempt to do so while it was moving
• even if the defendant was at fault for not stopping the car as the claimants sought to exit the taxi, that fault followed from the criminal intentions and actions of the group in the taxi, and any degree of fault was simply overwhelmed by those intentions and actions
• in any event, the claimants were barred from recovery by the maxim of ex turpi causa non oritur actio (no action may be founded on illegal or immoral conduct).

The judge therefore concluded that the two claimants should not recover damages against the defendant and that there was no breach of duty on his part. The claimants appealed and the matter came before the Court of Appeal.

Contrary to the finding at the first instance trial, the defendant accepted that he had been negligent in driving off after the first group had left his taxi as he knew that a door had been open and that the claimants had not been wearing seatbelts but he relied on the judge's finding that it had not been foreseeable that the claimants would be so foolhardy as to have positioned themselves in readiness to jump out of the vehicle and would in fact attempt to do so while it was moving.

The taxi driver submitted that the cause of the injuries had been the claimants' own actions, not anything done by him. He had faced the dilemma of either losing his fare if he had stopped or endeavoured to prevent the claimants' criminal enterprise by driving away. Accordingly, the jumping out of the taxi had been an intervening cause and there had been no liability. In any event, the agreement to jump the taxi had constituted a crime sufficient to bar any remedy. The ex turpi causa maxim had not been subject to any exercise of weighing fault if the injury had been inextricably linked to the relevant crime. This had been a contravention of section 3 of the Theft Act 1978: making off without payment. The fact that the actual criminal act was relatively minor did not affect the application of the principle.

The appeal was dismissed and the claimants failed again in their attempt to recover damages.

The Court of Appeal held that the defendant had been correct to accept that he had been in breach of his duty of care to his passengers. His responsible choice had been to either let the remaining three of his passengers out of his vehicle or to drive them to the nearest police station. Although it was entirely understandable that he had not wanted to lose his fare, that had not been an excuse for driving off with an open door when the claimants had not been wearing their seat belts and he was alert to the risk of them trying to jump out of the vehicle. In the circumstances, the first instance judge had been wrong to say that it had not been reasonably foreseeable that the two claimants would have positioned themselves with a view to jumping the taxi. It had, regrettably, been all too foreseeable once the three in the group had put their part of the criminal enterprise into effect.

Accordingly, the defendant could not rely on the judge's finding of lack of foreseeability in order to escape any liability for negligence. However, the claimants had also been the authors of their own misfortune in that, by jumping out of the taxi, they had done something that they knew, or had to be taken to have known, was dangerous and that they had been engaged in the criminal offence of making off without payment. Further, the present case was not a case in which the defendant had been a partner in the claimants' crime and he should, therefore, be in a stronger case for the application of the ex turpi causa maxim, especially since the crime of making off without payment had not been incidental but integral, both to the facts giving rise to the claim itself and any negligence on the part of the defendant.

Furthermore, even it if could be said that the claimants' injuries would not have happened but for the negligent conduct of the defendant, they had been, in reality, caused by the claimants' own criminal acts of making off without payment. Therefore, there would be no recovery. Moreover, the making off without payment was certainly not collateral to the civil claim, nor were there other public policies which could 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.

Philippa Luscombe, partner in the Penningtons Manches personal injury team, comments: “The doctrine of ex turpi causa is one that does raise its head from time to time in personal injury litigation. In my experience, it is often within the context of road traffic accidents. For example, where claimants have stolen a vehicle and are involved in an accident or have knowingly been drinking or taking drugs and then driven a vehicle. Often the issue is one of the extent of involvement and knowledge of the claimant in a criminal enterprise and to what degree the criminal act(s) are the cause of any accident and injuries. In this case, it was absolutely clear that all of the group intended to avoid paying their taxi fare and the two claimants were injured directly because of the actions they took to avoid paying. 

“The Court of Appeal recognised the public policy reasons for upholding this principle. Those who are involved in the deliberate commission of a crime should not be able to recover damages for the direct consequences of that conduct. Each case turns on its facts and it is not always the case that someone involved in a criminal activity will lose their case entirely. There is scope for a partial reduction in damages or, if the criminal act is only incidental where a defendant is clearly negligent, the doctrine may not be applied. However, this case rightly confirms that the courts will look carefully at the conduct of a claimant and their own role in any accident and injury when determining their ability to recover damages.”

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