Nick Rogers reported here on the Court of Appeal’s decision on 19 July in Beaumont and O’Neill v Ferrer. The claimants, teenagers at the time of the accident, failed on the grounds that their hopping out of a moving taxi in order to evade the ten pound fare was the cause of their injuries. They had only themselves to blame. But is there anything more that can be taken from what, based on the above summary, might seem to be a straightforward outcome?
There is clearly the legal point about the driver’s concession of breach of duty. The conceded breach was in having driven off moments after three other kids had jumped out, knowing that (a) the claimants were not wearing seatbelts and (b) the rear sliding door was still open. This concession well made, because Longmore LJ ruled that “it was regrettably all too foreseeable” that the claimants would attempt to do likewise. Despite this, it is important to note that the concession did not go as far as causation.
Even if this seems fairly conventional so far, perhaps some of the procedural elements help put some further context around the decision in this case.
First is that the risk run by five young men, in trying to, “as they would put it in their street patois, ‘jump the taxi'” (adopting Longmore LJ’s apparent attempt to get ‘down with the kids’) was by any analysis completely disproportionate to the risk of serious harm. It was, regrettably, one which they nevertheless chose to run. In that regard, the case may appear similar to those involving voluntary risk takers (all too often young men diving into very shallow water). The key difference is that in those cases, the claimants’ acts are wholly outside any duties of care owed by the defendants. In this case, by way of contrast, the claimants’ actions took place while the defendant owed them a duty of care. However, the criminal – rather than just extremely foolhardy – nature of what they did when ostensibly protected by that duty operated to provide a full defence: ex turpi causa non oritor actio (as judicial patois might have it).
Second, is the speed of the appeal judgment. It was delivered less than three weeks after a full day’s argument on appeal. Might this indicate an end of term rush by the bench? Perhaps, but alternatively it might suggest that the appeal judges aren’t stretched at present and thus can deliver judgments very quickly as a matter of course? Hardly: current evidence of the workload of the Court of Appeal shows it is being overloaded. So I would offer another possibility: that the speed of the decision could have been intended to send an obvious message about this sort of claim. It certainly seems a plausible explanation to me.
A third point is the structure of the judgment. It is short, running only to 28 substantive paragraphs, over half of which deal with the facts and the first instance decision. The essence of the judgment on appeal lies in the very short paragraph at 25: “… it 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.”
So, pithy judicial reasoning in a short judgment delivered unusually quickly. Who can say if that invites the conclusion that the Court thought not a great deal of the claimants’ arguments? And, whatever is made of that proposition, it should be remembered that the claim must have passed the threshold for permission to appeal at some earlier stage.
By way of footnote, the judgment includes a one-page draft order for costs, in favour of the defendant. This records that the claimants had the benefit of legal aid from June 2015. Given that the underlying accident took place in 2009, it could reasonably be assumed that the claimants initially funded the case via a pre-Jackson recoverable CFA and ATE insurance. The switch to legal aid in June 2015 suggests to me that the ATE provider may have got cold feet at that point and pulled cover. Why? Well, who knows, but it might be more than coincidence that the switch in funding happened only a few weeks after the exemplary decision of the Court of Appeal in Smith v McCracken and Bell, which itself turned on the operation of the ex turpi defence in road traffic claims? If this hypothesis were to prove correct, it would strongly suggest that the commercial ATE provider involved had, after McCracken had been decided, taken a dimmer (and, with hindsight, a more realistic) view of the prospects of a successful appeal than the taxpayer-funded Legal Aid Agency did.
About the Author
Alistair Kinley is BLM’s Director of Policy & Government Affairs.
Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.
He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).