Doing a runner from the cabbie

On 2 November 2010, at about 11pm, Kristopher Hicks (the claimant) and his girlfriend, Abigail Noad, hired a taxi in the centre of Bath in order to travel home. On the journey the taxi stopped twice: first to allow the couple to order a pizza from a pizza delivery shop, and then to allow Noad to purchase some cigarettes.

After this second hiatus Hicks made a comment to the taxi driver to the effect that he need not worry because they were not planning to ‘do a runner’ (i.e. run off without paying the fare). This seems to have planted in the mind of the taxi driver the thought that in fact doing a runner was precisely what the couple intended to do.

When the taxi arrived at the destination, the couple did not pay the driver while they were in the taxi. Noad alighted first. As Hicks was standing up to alight, the taxi driver drove off with the door still open. The claimant sat down, the door closed with the movement of the vehicle, and the taxi driver started to drive back to the taxi rank with the intention of causing maximum inconvenience to Hicks in order to teach him a lesson.

After about three-quarters of a mile and while the taxi was moving at about 20mph, Hicks jumped out. He struck his head on the road surface and sustained a severe brain injury.

The claimant brought proceedings against the taxi driver founded on the torts of negligence and false imprisonment. In respect of both causes of action, the defendant submitted that there had been a novus actus interveniens in that the claimant had taken the decision to jump from the taxi and this had broken the chain of causation.

Novus actus interveniens

It is clear from the judgment (Hicks v Young
[2015] EWHC 1144 (QB)) that Mr Justice Edis
was troubled: the overall justice of the situation demanded an apportionment of liability so as
not to deprive the claimant of all compensation, but also not to award him full compensation in respect of the obviously foolish act of jumping from a taxi which was travelling at 20mph.
One might expect that a finding of contributory negligence would be the obvious solution, but there were complications.

As to the facts, the trial judge did find that the defendant had been wrong to conclude that Hicks was intending to do a runner, and, in fact, the couple fully intended to pay the taxi fare.
In the circumstances, to drive off with Hicks
still in the back of the taxi was an unlawful imprisonment of the claimant.

The judge was constrained by the Court of Appeal authority in Co-operative Group (CWS) Ltd v Pritchard [2012] QB 320 that the Law Reform (Contributory Negligence) Act 1945 does not provide the partial defence of contributory negligence in cases involving the deliberate
tort of trespass to the person, of which false imprisonment is a species. Accordingly, if the abduction of Hicks had been the cause of his injuries, then he would recover in full, despite
the fact that he had taken the foolish decision
to jump from the taxi.

Edis J found that, in respect of the false imprisonment, the jumping from the taxi had been an intervening act and therefore the catastrophic injuries had not been caused by the abduction but by the claimant’s unreasonable behaviour. The physical injuries were too remote from the wrongdoing, and the damages for the false imprisonment did not, therefore, include any element in respect of injury and were assessed at £250.

What then of negligence? The taxi driver drove in a safe and competent manner and so it could not be said that the manner of his driving was negligent. The judge found, however, that it
had been negligent to drive away with Hicks
in the taxi because it was foreseeable that the claimant might try to leave the vehicle and
would be exposed to a risk of injury in the process.
This was especially so as there was no mechanism to lock the claimant in.

Is it not artificial to graft upon the situation a duty of care not to drive away with a captive in the back of the vehicle? This was already unlawful under the law relating to trespass to the person.

Artificial or not, a finding of primary liability for negligence allowed the judge to also make a reduction of 50 per cent in respect of contributory negligence and thus achieve a just result. But what about the novus actus?

Criminal wrongdoing

Jumping from taxis is relatively common and
must cause considerable frustration for taxi drivers. In Beaumont and O’Neill v Ferrer [2014] EWHC 2398 (QB), six youths decided to jump
from a taxi in Manchester. This was a pre-planned enterprise. As the taxi came to a halt in the city centre, three youths made off, but the other three had not made it out of the taxi by the time the taxi had moved off. As the taxi was taking a corner, two of the remaining occupants, Beaumont and O’Neill, deliberately left the vehicle, sustaining injuries in the process.

There had been no legitimate reason for them
to leave the taxi when they did and in each case it had been a deliberate and reckless act. It had also been a criminal act as it was part of a joint enterprise whereby the taxi driver would be deprived of his fare by deliberate dishonesty on the part of the youths.

At trial, Mr Justice Kenneth Parker found that the taxi driver had not been negligent, but even if he had, the criminal actions of the claimants had caused their respective injuries, and therefore the defendant could rely upon this criminal wrongdoing as extinguishing any cause of action under the rule of ex turpi causa.

In Hicks v Young, however, there had been no criminal activity on the part of Hicks because he had intended to pay the fare, but the act of jumping from the vehicle had been careless. In cases of negligence, Edis J felt that there was a value judgement to be made about the claimant’s conduct as to whether it was merely careless so
as to give rise to a reduction for contributory negligence, or whether it was unreasonable to
the extent that it amounted to a novus actus.

He considered that the judicial exercise
had to be guided by fairness and that, in
the circumstances, in respect of the tort of negligence, the claimant’s actions in jumping from the taxi had not amounted to a novus actus.

Thus the judge achieved what he regarded
as a fair outcome, constrained as he was by
the authority that a finding of contributory negligence was not open to him in respect of
false imprisonment. In so doing, however, he had to find that the actions of jumping from a moving taxi did constitute a novus actus in respect of
the tort of false imprisonment, but did not in respect of the tort of negligence. This is clearly
an unsatisfactory position. Both Hicks and Beaumont are proceeding to the Court of Appeal, hopefully as conjoined appeals.

Contributory negligence

In Co-operative Group (CWS) Ltd v Pritchard,
Lady Justice Smith expressed her dismay at the fact that the court was constrained by authority
to find that contributory negligence was not available as a partial defence in relation to the
tort of trespass to the person, but that it was for parliament to alter the unsatisfactory position.

The case involved an altercation between a worker and her manager during which the worker had been abusive to her manager, who reacted disproportionately and assaulted her. While there had undoubtedly been an assault and battery,
the justice of the situation really demanded
some reduction in her damages to reflect the provocative behaviour, but the court was constrained by authority to find that a reduction for contributory negligence was not available.

It is inconsistent when, on one hand, Edis J, striving to do justice, found a contrived route to arrive at a fair apportionment in Hicks, whereas
in Co-operative Group (CWS) Ltd v Pritchard a
fair apportionment was not achieved. That is
not to criticise Edis J, who performed the function of the first instance judge in arriving at a just outcome by taking whatever route he found necessary to take. It remains to be seen how the Court of Appeal will deal with the situation. SJ

Roger Cooper is a barrister at Parklane Plowden