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Negligence, false imprisonment and a surprising decision on contributory negligence: Liability of a taxi driver to a passenger detained in his vehicle injured jumping out

News | Wed 29th Apr, 2015

The case of Hicks v Young [2015] EWHC 1144 (QB) is extremely sad based, as the judge found, on a tragic misunderstanding between a taxi driver and his young passenger.  The taxi driver formed the view the claimant and his girlfriend were going to run off without paying so drove away from the claimant’s home with him still in the vehicle, intending to “teach him a lesson”.  The judge found that there was no such intention on the part of the claimant, although he accepted that the taxi driver’s belief was genuine.  Whilst the taxi was travelling at about 20mph the claimant jumped from the vehicle to escape, suffering a serious brain injury. 

Edis J presided over a trial on liability. The claim was brought in negligence and trespass / false imprisonment. 

Edis J concluded that the defendant was negligent in conveying a prisoner, unlawfully detained, in a vehicle that was unsuitable for detention. It did not have a working lock to prevent the claimant from making an escape attempt.  This is perhaps a slightly surprising characterisation of the relevant duty and breach, but reached the right conclusion on the facts.  Edis J then went on to deduct 50% of the claimant’s damages for contributory negligence.  His reasoning was:

“I do not know… why the Claimant decided to jump. It is obvious that he misjudged the speed at which the taxi was travelling because there must have been junctions coming up which would have required it to slow down and had he been thinking clearly he would have appreciated this.  He also misjudged the level of risk involved in jumptin because he simply wanted to avoid having to walk a couple of miles home from the rank, or whether he was frightened i do not know.  It is for the Defendant to prove that consequences of his tort should not result in an award of damages because of the novus actus interveniens or reduced because of contributory fault.  All that I can safely say about the Claimant’s conduct is that is was not a criminal act done in an attempt to avoid paying the fare.  It was certainly careless in that in involved a serious misjudgement of the level of risk.  It was also done because he had been unlawfully abducted and wished to be at liberty, as he was entitled to be.  In these circumstances I find that it was not a novus actus interveniens but was sufficiently careless to justify a significant reduction in the damages payable for negligence.  If I had found that he jumped through fear, and misjudged the risk in the agony of the moment the reduction, if any, would have been small.  I cannot make that finding in the absence of any evidence.  Whatever the reason, it was a grave misjudgement…  It was certainly a causative factor of great potency.  In these circumstances I reduce the damages payable in the tort of negligence by 50%.”

This seems a surprising and harsh decision.  First, Edis J has taken the Claimant’s inability to give evidence and used it to the defendant’s benefit when the burden is on the defendant to prove that the claimant’s conduct was contributorily negligent.  Secondly there does not appear to have been reference to the range of vehicle versus pedestrian decisions where findings of contributory negligence have been very low, even where the claimant is drunk or foolhardy (see for example Eagle v Chambers [2004] RTR 9; Liddell v Middleton [1996] PIQR P36; Lunt v Khelifa [2002] EWCA Civ 801; Parkinson v Chief Constable of Dyfed Powys Police [2004] EWCA Civ 802).  The rationale in all those cases is that the primary burden rests on the person in control of the potentially lethal machine to take care.  One cannot help but think that this is even more the case in circumstances where that person has chosen to abduct an innocent young person who is possibly under the influence of alcohol to some extent and drive him through the night away from his home when he only has a few pounds in his pocket. 

Edis J was then left with the knotty problem of how to deal with the claim in trespass. Based on his findings the claimant was clearly falsely imprisoned.  Contributory negligence does not arise in claims for trespass against the person.  Edis J concluded that the tort of trespass against the person allows compensation for the direct consequences of the tort, including the claimant’s reasonable attempts to bring the effects of the tort to an end by his own conduct.  It does not allow recovery for unreasonable conduct. “I therefore hold that the injuries sustained by the Claimant were too remote as a matter of law from his unlawful imprisonment by the Defendant to found a claim for damages for this form of trespass.” 

Permission to appeal was granted to both parties.  It will be interesting to see what decision the Court of Appeal reaches.  Watch this space…


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