Hicks v Young [2015] EWHC 1144 (QB)

[2015] EWHC 1144 (QB)Case No HQ13X06123
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/04/2015
Before
MR. JUSTICE EDIS
Between
KRISTOPHER HICKSClaimantMICHAEL YOUNGDefendant
Stephen Killalea QC and Robert Hunter (instructed by Irwin Mitchell LLP) for ClaimantRichard Lynagh QC and Suzanne Chalmers (instructed by Weightmans) for DefendantHearing Hearing dates: 23 rd March 2015
JudgmentMr. Justice Edis :
[1]This litigation arises out of a tragic incident which occurred at around 11:00pm on 2nd November 2010. The claimant, who was then 23 years old, sustained a very severe brain injury when he fell from a moving taxi and hit the road surface. His injuries are such that he was unable to give evidence at the trial before me about the circumstances which led to him falling on to the surface of the road, and has never been able to speak about it to anyone. I am trying the issue of liability.

The Facts

[2]The Claimant brings this claim in negligence and also alleges the tort of false imprisonment. A brief review of the agreed facts will show how that comes about. The Claimant hired the Defendant’s taxi at the Abbey taxi rank in the centre of Bath shortly before 11.00pm. He was with his then girlfriend Abigail Noad. They asked the Defendant to drive them to his home address at 100 Queens Drive and the Defendant did so. At that time, the Claimant lived there with his father and other members of the family and Ms. Noad lived there most of the time as well. On the way, they stopped twice. First, very soon after they hired the cab, they got out and went into a pizza takeaway shop. They came out without a pizza, but it appears that they had ordered one which was to be delivered to their home. Then they asked the driver to stop so that Ms. Noad could get out of the car and buy cigarettes. This was about half way through the journey. When they reached the home address, Ms. Noad got out first. As the Claimant was moving to stand up to alight from the taxi the Defendant drove off, with the taxi door open, back towards the taxi rank which was the original starting point of the journey. Despite the Claimant’s protestations the Defendant continued to drive on. In his Skeleton Opening for the Trial Mr. Killalea QC, who appears for the Claimant, said that “the Claimant decided to get out of the taxi before it had arrived at the Defendant’s intended destination and in doing so sustained serious brain injuries”. Mr. Lynagh QC, who appears for the Defendant, put it more plainly. He alleged that the Claimant “jumped” from the taxi. The point at which the Claimant did this was about ¾ of a mile from the home address and the taxi was travelling over 20mph at the time. The Abbey rank, to which he was being returned, was a couple of miles away. It is also agreed that the Claimant was not drunk, although he may have been affected by alcohol. The Landlord of the Rifleman’s Arms was called on his behalf to say that this was so. The Defendant does not say that the Claimant was drunk, although in interview he did say that he was unsteady on his feet. His counsel makes the submission that the relatively sober state of the Claimant is a point favouring the Defendant. It might be negligent to drive off with a captive drunk in the back of the taxi because he might be expected to do something dangerous. A sober man would be far less likely to try to get out of the taxi in a dangerous way, and this may affect the issue of negligence. For whatever reason, it is common ground now that the Claimant was not heavily under the influence of alcohol.[3]The reason why it is agreed that the Claimant deliberately left the taxi despite the fact that the Claimant himself cannot explain his conduct, is that it is quite clear on the evidence that this is what happened. The scene of the accident was examined by PC Hignett, of the Avon & Somerset Police Collision Investigation Unit. His report is admissible as agreed opinion evidence further to an order of Master Eastman dated 27 June 2014. He described the position of coins and blood marks left on the carriageway as a result of the Claimant’s exit from the vehicle. These show that the Claimant landed on the opposite side of the carriageway to the side upon which the taxi was driving, about 1.4 metres out from the offside of the taxi. In PC Hignett’s opinion, this distance “would be typical of a person making a conscious effort to leave a vehicle as opposed to simply falling out”.PC Hignett’s opinion is that the taxi was travelling at a speed less than 30 mph when the Claimant left the vehicle, and that the Claimant was probably travelling at 20-24 mph as he struck the road surface.[4]This, therefore confirms the evidence of the Defendant who says that after he drove off with the Claimant in the back of his taxi, he had sat down again on the seat. He says also that the movement of the taxi in starting off had caused the door to close. This was because he was parked on a speed bump and there was a jolt as the car began to move which caused the door to close. It was not, however, locked. Although the taxi has a locking system which prevents passengers leaving the taxi, the Defendant had not tried to apply it. This was because he had got out of the habit of using it because it only worked intermittently. It was not his taxi and he did not think it was his job to spend money on repairing it. Therefore, the Claimant was safely in the back of the taxi until he deliberately chose to leave it.[5]The reason why the Defendant behaved as he did was that he had formed the view that the Claimant and Ms. Noad were not going to pay the fare but were planning to “do a runner”. It was not seriously disputed that this is what he thought, but the Claimant’s case is that he was wrong to come to that conclusion. It is important for a variety of reasons that I should review the evidence on this issue and reach a conclusion. There are only two sources of direct evidence about this: the Defendant and Abigail Noad. Ms. Noad has ended her relationship with the Claimant and is now thought to be living in Bath with a new partner and a baby. I am told that she has refused to co-operate with the Claimant’s lawyers and she did not give evidence. She did make witness statements to the police and these are in the Trial Bundle and a Hearsay Notice has been served. The first of these is dated 3rd November 2010, and the second the 7th December 2010. In her first statement she says that after the stop for cigarettes she remembered Kris saying to the driver “It’s OK mate. It’s not like we’re not going to pay you or nothing, and we’re not going to do a runner.” The Defendant agrees that something about doing a runner was said by one or other of his passengers. He says it is quite a common joke. This is one of the things that made him think that this was what was going to happen when the Claimant stood up to leave after Ms. Noad had left first. This element of common ground is some encouragement to lend some weight to her written evidence, even though it has not been given on oath and there has been no cross-examination about it. Another aspect of her first statement is less reassuring. In it she says this “I got out of the taxi. I had a £20 note in my pocket and it was my intention to use that to pay the driver. I hadn’t told the driver that I was going to pay the fare, but he looked at me out of his window and could see that I was now holding the £20 note aloft and in his direction.” She then went on to describe how she saw the Defendant shut the rear door and drive off.[6]If that passage were true, it is very hard to see why the Defendant did not simply take his fare from the £20 note. She altered this account in her second statement when she said that she had in fact taken out the £20 inside the taxi. She said that the door was then closed and that she waved the £20 note up to the window after that, which is when the driver looked straight at her.[7]The Defendant denies that he ever saw Ms. Noad with any money. He says that she got out and disappeared from his sight, which made him very suspicious because he thought that this was consistent with the passengers planning to do a runner. On this issue I prefer the evidence of the Defendant. This is not only because it was given from the witness box, and subject to cross-examination, but also because it is inherently far more probable. This means that there was no overt offer of payment, and this added to his concern that he was not going to be paid. In fact, she did not do a runner. Mr. Gunthorpe, the Claimant’s father, gave evidence that after the taxi had driven off with the Claimant on board she banged on the door and he looked out of the window and saw her. He came down and opened the door to let her in. Mr. Gunthorpe said that by the time he saw her she had a pizza in her hand. This means that she must at some stage have encountered the pizza delivery vehicle. It is likely that this is why she left the taxi and was nowhere to be seen at the point when the Defendant decided that he was not going to be paid and took his retributive action.[8]There is no basis for concluding that the Claimant and Ms. Noad were actually planning to make off without payment. The Defendant’s grounds for forming this belief were not strong and, although he did not know it at the time, it is now clear that the Claimant and Ms. Noad had given him their true address. The fact that both young people were intending to leave the taxi before any money changed hands was an important reason why he thought they were not going to pay him. The Defendant did accept that some people do get out of the vehicle before paying, although he thought that this was unusual in a purpose built taxi where the passenger can stand up to reach into his pockets inside the car. As I have said, they had asked to be dropped off outside their home and if the Defendant had stayed in the street watching what they did after leaving his taxi he would have seen them going in with their pizza. If they had not paid him by that time, he could have called the police or at least knocked on the door and asked for his money. This, in my judgment, makes it extremely unlikely that they were actually planning to avoid paying the fare, although I accept that the Defendant genuinely thought that this was the position, which is why he acted as he did.[9]The Defendant was, in his way, quite an impressive witness. I take into account the fact that the investigation into these events by the police revealed that he was in the habit of carrying an illegal weapon, namely a CS Gas canister. This is not to his credit, but he explained to me why he did it and I have read the Pre-Sentence Report compiled about him at the time. This piece of evidence does not cause me to doubt the Defendant’s honesty. The concessions which he made in cross-examination were, I thought, based on a real desire to tell the truth and also to be fair to the Claimant who had been so grievously hurt as a result of his conduct. He accepted that he may have made a mistake in his belief that they were in the process of running away without paying. He also accepted without demur that his intention in driving the Claimant back to the rank was to teach him a lesson by causing him as much inconvenience as he could. He did not think it was going to secure payment, and this was in no sense a lawful arrest. He did not suggest that he ever thought that he was entitled to drive the Claimant away from his home and back to the taxi rank. He said that he was not angry, in the sense of furious, but that he was “peed off”. He told me that quite a few drivers in Bath do this. Probably most of them lock the doors to ensure that the passengers cannot escape. It was a strange thing to do without functioning locks, because the car had to deal with junctions and traffic lights before it got to the rank. It had in fact already passed two junctions where it must have slowed to a walking speed even if it did not stop. The chances of getting the Claimant back to the rank were not high, even if he did not decide to jump out at over 20mph. However, that is what the Defendant chose to do.[10]I therefore accept his account of the conversation with the Claimant after he decided to drive off. Just after the door locked as the car picked up speed, the Defendant says that the Claimant asked him where he was going and that he replied that they were going back to the taxi rank. The Claimant said that all taxi drivers were paranoid. The Defendant had told the police that he had added “you can do what you want”, although he did not remember saying that now. I find that he did say this, otherwise he would not have told the police that he had. He said that the Claimant seemed resigned to what was happening. He said there was no shouting in the back of the taxi and nothing to warn him that the Claimant was going to jump out. He told me, and I accept, that if he had thought that was going to happen he would have stopped. The fact that this conversation occurred does not, of course, mean that the Claimant was reassured by it. As far as he was concerned he had done nothing wrong, and found himself being driven off by a stranger into the night. Whether that made him fearful or angry I do not know. What is clear, however, is that he decided that he should try to escape.[11]The end result is that the Claimant decided to jump out of the taxi at a dangerous speed. I do not know why he did this. It may have been that he misjudged the speed and thought it was safe to do so, but the true motive will never be known. I have found that he had not intended to avoid paying the fare, but it is possible that he became worried after he had been abducted because he only had £4.00 or so on him and the fare was £8.90. Since Ms. Noad was evidently the one who was intending to pay the fare, that did not prevent the Defendant from being paid in Queens Drive, but now that they had left the Claimant’s home, he had no way of paying him. He may have become concerned that when the Defendant and other drivers at the rank realised this there would be consequences for him. Given the obviously militant approach of the Defendant to non-payers, he may have had some ground for thinking this. He may not have believed that he was going to be returned to the rank and allowed to go. He was a young man of 23 of good character.[12]It is unnecessary for the purposes of this judgment to recite any further evidence or to resolve any other disputes. Essentially, I have set out the relevant facts as I find them to be and they are largely undisputed. The Applicable Law and the Submissions Negligence

The Applicable Law and the Submissions

[13]Mr. Lynagh QC submitted that liability in negligence attaches only in respect of losses which are reasonably likely to happen. He submits that the act of the Claimant in jumping out of his taxi was not a foreseeable consequence of the Defendant’s driving. He says, alternatively, that the decision of the Claimant to jump out of the taxi was a novus actus interveniens which broke the chain of causation between any breach of duty by the Defendant and the damage sustained by the Claimant. I shall refer below to some of the authorities which were cited, but it is immediately apparent that these two ways in which the case may be formulated are very closely associated.[14]In respect of the claim in trespass by false imprisonment Mr. Lynagh again makes a submission on causation, arguing that the imprisonment did not directly cause the loss. In his written submissions he put it this way:- “In the present case, the Defendant submits that until he jumped from the taxi the Claimant had impliedly consented to being taken back to the taxi rank and so was not unlawfully imprisoned. “Even if it cannot be said that the Claimant consented, the period of unlawful imprisonment was perhaps only a couple of minutes which is de minimis. The Claimant’s injuries were not caused by any commission by the Defendant of the tort of false imprisonment. They were caused by the Claimant’s own reckless decision to jump out of the taxi.”[15]He also contends that damages under this head should be capable of reduction for contributory negligence, but deals with that submission by reserving the right to raise it on appeal. This is because of the decision of the Court of Appeal in Co-operative Group (CWS) Limited v. Pritchard [2012] QB 320, a decision which I have recently followed in Flint v. Tittensor [2015] EWHC 466 (QB) at paragraph 45. The issue was not argued in that case and I recited an agreed position in the judgment.[16]In respect of both causes of action Mr. Lynagh raises the public policy defence of illegality, relying on a decision of Kenneth Parker J in Beaumont & O’Neill v. Ferrer [2014] EWHC 2398 (QB), [2015] PIQR P2. I accept that if these injuries occurred because the Claimant was committing the criminal offence of making off without payment when he sustained them, then the public policy defence of illegality would bar his right to damages. However, I have found that he was not doing that. The Claimant was not engaged in any criminal conduct which would require the court to bar his otherwise valid claims as a matter of public policy. I shall therefore not address this defence further, because it has failed on the facts and does not arise.[17]The Defendant submits that the test of foreseeability remains that adopted by the House of Lords in Bolton v Stone[1951] AC 850: “Nor is the remote possibility of injury occurring enough; there must be sufficient probability to lead a reasonable man to anticipate it.” (Lord Porter at page 858). In other words, the Defendant was obliged to take precautions against risks which were reasonably likely to happen.[18]In Whippey v Jones [2009] EWCA Civ 452 Aikens LJ at [16] put it this way:
“Before holding that a person’s standard of care has fallen below the objective standard expected and so finding that he acted negligently, the court must be satisfied that a reasonable person in the position of the defendant (i.e. the person who caused the incident) would contemplate that injury is likely to follow from his acts or omissions. Nor is the remote possibility of injury enough: there must be sufficient probability of injury to lead a reasonable person (in the position of the defendant) to anticipate it.”
[19]Mr. Lynagh submits that the proper approach to causation is one of fairness as set out by Sedley LJ in the case of Spencer v Wincanton Holdings Ltd [2009] EWCA Civ 1404:
“Fairness, baldly stated, might be thought to take things little further than reasonableness. But what it does is to acknowledge that a succession of consequences which in fact and in logic is infinite will be halted by the law when it becomes unfair to continue. In relation to tortious liability for personal injury, this point is reached when (though not only when) the claimant suffers a further injury which, while it would not have happened without the initial injury, has been in substance brought about by the claimant and not the tortfeasor.”
[20]This approach to causation was followed by Kenneth Parker J in Beaumont. He cited the above passage from Spencer and held that the Claimants who jumped from a moving taxi to avoid paying the fare had no case because of the illegality defence, which I have dealt with above. However, before that he had also held that their claim in negligence failed, even if the taxi driver was in some way at fault. This was because of his approach to causation. He said, at paragraph 26:- “Even if David Ferrer [the driver] should have followed that course and in not doing so was at fault, the failure followed from the criminal intentions and actions of the youths in the taxi, and any degree of fault was simply overwhelmed by those intentions and actions.”[21]Ms. Chalmers, who appeared in that case and appears in this, told me that permission to appeal has been granted and made available the reasons for that. Jackson LJ, granting leave, said “This case raises difficult questions of causation and the impact of illegality. No authority seems to be directly in point. The claimants have suffered devastating injuries. These are “compelling reasons” within CPR 52.3(6)(b) why the claimants should not be shut out from pursuing and appeal even though their prospects of success are not unduly high.”[22]In Vellino v. Chief Constable of Greater Manchester Police [2001] EWCA Civ 1249; [2002] 1 WLR 218 the Claimant was injured when he jumped out of a window escaping from the lawful custody of police officers who had arrested him. This is a common law crime. The Trial Judge (Elias J) found the police guilty of negligence in allowing him to jump, and made a substantial reduction for contributory fault. He then went on to find that the claim was barred in its entirety by the public policy defence of illegality. The Court of Appeal upheld the finding on illegality and in Gray v. Thames Trains Limited [2009] UKHL 33; [2009] 1 AC 1339, Lord Hoffmannsaid that the decision was based on sound common sense. Sedley LJ, dissenting in Vellino, would have preferred to reflect illegality by make a reduction in the damages rather than defeating the claim altogether. None of the Judges who considered this case suggested that the negligence of the police in failing to hold on to Mr. Vellino when they knew of his propensity to jump was not, in law, a cause of his injuries because he had behaved much worse than they had. Spencer was decided after Vellino andso was not considered. Spencer is a case which concerns the usual novus actus situation involving one of the exclusionary rules which “…assist judges in deciding the circumstances in which a defendant, whose liability to a claimant for a particular occurrence has been established, will not be responsible for certain consequences of an act of negligence and the damages that are claimed to flow from those consequences”, see Aikens LJ at paragraph 29.[23]Where negligence is established but the subsequent conduct of the claimant has contributed to a part of the loss there is a rule of remoteness which involves a value judgment to determine whether that conduct amounts to contributory negligence or goes further and amounts to a novus actus interveniens. The rule of law under examination was that which is described as the “second enquiry” in paragraph 70 of the speech of Lord Nicholls in Kuwait Airways Corp v. Iraqi Airways Co (No 6) [2002] 2 AC 883. The policy of the law was there described in this way “..the inquiry is whether the plaintiff’s harm or loss should be within the scope of the cause of action in question. The law has to set a limit to the causally connected losses for which a defendant is to be held responsible.”[24]The issue before me is rather different. The injuries were not sustained in two stages, the first being the fault of the defendant and the second being a consequence both of that original fault and of an unwise act by the claimant. The injuries were sustained in one incident when the claimant jumped out of the defendant’s taxi. The act of jumping did not break the chain of causation between the actions of the defendant and the injury: it was the cause of the injury. The issue is whether it was a foreseeable consequence of the fault of the defendant and not whether a limit on those causally linked consequences should be imposed in the interests of fairness.[25]It is clear from the passage cited above that the claimants in Beaumont lost before Kenneth Parker J on the negligence issue because they were engaged in a criminal act. This claimant, on my finding, was not. That claim was also decided in a different legal context because there was no claim for damages based on the intentional tort of trespass, whereas there is here. I am not persuaded by the submission made on behalf of the defendant in this case that the decision of counsel for the claimants in Beaumont not to base his case on trespass means that the claim in trespass must be bad in law. Therefore, I derive limited assistance from that decision without in any way questioning its result, with which I respectfully agree. To my mind such claims are barred by the illegality defence, whatever the outcome may be in negligence.[26]Mr. Killalea QC accepts that the Claimant was guilty of an error of judgment in deciding to try to leave the taxi at 20mph. He suggests that travelling at such a speed in a car feels much slower than it actually is, and that this is why the Claimant may have felt it safe to jump. He submits that he is entitled to succeed on primary liability because it was negligent to drive the taxi with a passenger in the back who was effectively being abducted because it was foreseeable that he might try and escape and that if he did so would run the risk of some physical injury in the process.[27]In negligence, therefore, the Defendant submits that the claim should fail entirely, while the Claimant submits it should succeed but allows for a reduction for contributory negligence. In order to recover in full, despite the serious misjudgement of the Claimant which was the immediate cause of his injuries, Mr. Killalea turns to the intentional tort of trespass to the person by unlawful imprisonment.

Trespass/False Imprisonment

[28]Mr. Killalea QC submits that false imprisonment is a species of trespass to the person and therefore is actionable per se. As such, the Claimant is entitled to damages for imprisonment without proof of loss. As well as damages for imprisonment, the Claimant claims to be entitled to claim for any physical or mental injury, which results from the false imprisonment. Liability, he submits, extends to all the consequences which result from the tortious conduct, provided those consequences are properly attributable as a matter of causation to the Defendant's conduct and not to some novus actus interveniens. This is because the test of remoteness in false imprisonment is directness of the consequence, not foreseeability of the damage. Clerk & Lindsell explains the position at paragraph 2-139:- “The test of remoteness in trespass to the person is directness of the consequence, not foreseeability of the damage. This stems from the historical development of the writ of trespass, the two most prominent features of which were that trespass was actionable per se, i.e. without proof of damage, and that the interference with the claimant had to be a direct result of the defendant's act. Indirect or consequential harm was the subject of an action for “trespass on the case” later referred to as an action on the case, or simply “case”. The traditional example of the distinction between direct and indirect harm is that of a log thrown onto the highway. If the log strikes someone the injury is direct and trespass would lie, but if it simply lies in the road and obstructs the highway and someone trips over it, the injury is indirect and the claimant would have to sue in case, and prove damage. In the modern cases, remoteness of damage is virtually never an issue in trespass to the person, probably because trespass is now seen as a tort of intention (although the defendant's intention relates to an intention to do the act which amounts to trespass; there is no requirement that the defendant intended to harm the claimant).”[29]McGregor on Damages 19th Edition at 40/012-40/020 explains the way in which damages are awarded in false imprisonment cases. These are almost always claims against the police or other state body which has detained the claimant in purported exercise of some power. The general damages are for loss of dignity and distress and ill-health caused by the detention. “Further, any pecuniary loss which is not too remote is recoverable; there appear to be no modern reported cases. Pecuniary losses fall into two categories in the cases. In the first place, that any loss of general business or employment is recoverable would seem to follow from Childs v Lewis, where the claimant, a company director, had been wrongfully given into custody by the defendant, and his co-directors had demanded his resignation on learning of his arrest. Lush J. directed the jury that they were entitled to hold that the claimant's loss of his director's fees by his acceding to this demand flowed from the false imprisonment. He pointed out that “clearly if the plaintiff had not resigned the other directors would have taken steps to remove him”, and that his co-directors would be bound to hear of the claimant's arrest “before the prosecution started, or certainly before the magistrates dealt with it”. In the second place, a few 19th century cases show that the claimant's costs incurred in procuring his discharge from the imprisonment may be recoverable as damages. Such costs were recovered in this way in Pritchet v Boevey. There had been no adjudication as to these costs by the judge who ordered the claimant's release; he would have given the claimant his costs if he had undertaken not to bring an action, and on the claimant's refusal no order had been made as to costs. Similarly, in Foxall v Barnett where the claimant, committed to prison for manslaughter by a coroner's warrant, had been admitted to bail and had subsequently got the inquisition under which he had been committed quashed, it was held that in an action against the coroner for false imprisonment he might recover the costs of quashing the inquisition. However, where the claimant has been refused costs in the prior action, as opposed to there being no order as to costs, he has failed to recover them as damages: this was the result in Loton v Devereux which was distinguished in Pritchet v Boevey on this ground. So, too, there will be no recovery in respect of costs unreasonably incurred. Thus Lord Campbell in Foxall v Barnet made it clear that the action must have been one which was necessary to gain release, and it is submitted that the jury's refusal in Bradlaugh v Edwards to award the claimant damages in respect of his expenses in procuring bail before the magistrates and in getting together evidence in defence of the charge is properly explained on the ground that the costs were not considered to have been reasonably incurred.”

Decision

[30]I have found that the Defendant drove away from the Claimant’s home with the Claimant in the back when he had no right to do so. This caused the Claimant to try to escape and he did so making a serious error of judgment about the level of risk to himself in jumping out of a taxi at 20mph. The Claimant says he is entitled to recover in full despite his folly, and the Defendant says he should have to pay nothing despite his deliberate wrong doing. This is a stark and unattractive choice.[31]The claim in negligence is not straightforward. There is no doubt that at all times the Defendant owed a duty to drive his vehicle with reasonable care for the safety of the Claimant. I have little difficulty in finding that driving away while the Claimant was standing up in the rear of the taxi with the sliding side door open was a breach of that duty. However, this action caused the Claimant to sit down and engage in a brief conversation with the Defendant. It did not cause him any injury. The injury occurred a minute or so later and ¾ mile away. At that time there is no evidence that the Defendant was driving in an unsafe manner. He was certainly driving within the speed limit. The case in negligence must therefore be put on the basis that it was negligent to drive the vehicle at all with a person detained in it who may attempt to escape because the driver knows that he wants to get out. The possibility of escape would be particularly clear because the doors were not capable of being locked. It was foreseeable that he would attempt to escape and any such attempt would involve some level of risk of injury to the Claimant. The Particulars of Claim do not refer to the absence of working locks, but there is no dispute about that fact, indeed it is based on the evidence given by the Defendant. That apart, they do contain allegations which enable the case to be advanced on the basis which I have just described.[32]In my judgment once the duty and breach are explained in that way it becomes clear that the Defendant was in breach of his duty to drive his car with reasonable care for the safety of the Claimant. The taxi was simply not suitable for conveying prisoners safely. It would be unsafe whether the detention of the passenger was lawful or not. The presence or absence of working locks is not decisive of the issue, but should have operated as a particular warning on the facts of this case to the Defendant of the risk that his prisoner may try to escape. The reason for the detention is not relevant to the negligence claim, at least on primary liability. The police often detain people who have committed very serious offences, but it cannot be suggested that the police do not owe a duty of care to their prisoners because their own misconduct caused their incarceration. Because it is an offence to escape from lawful custody any claim for injuries caused by the claimant to himself in the course of escape will be defeated by illegality.[33]The answer to the submission based on Bolton v. Stone that it was not foreseeable that the Claimant would jump out at over 20mph is that this is irrelevant. In Spencer the defendant made a similar argument which was rejected by Aikens LJ at paragraph 33. It was certainly foreseeable that the Claimant would try to leave the taxi and that it may be moving when he did so. If the Defendant had asked himself whether the Claimant would probably jump out when the vehicle slowed in traffic, at traffic lights or at a junction he would probably have answered in the affirmative. If he had asked himself whether there was some risk of some injury if the Claimant did jump out of the taxi while it was moving quite slowly, again he would have said Yes. A stumble and a bruised knee, broken wrist or turned ankle would have been very much on the cards. The fact that he might misjudge the risk and jump out at a very dangerous speed causing catastrophic injury was less foreseeable, but it is foresight of the kind of damage which occurred, namely personal injury, which is required and not of the precise mechanism by which it occurred. This is clear in Lord Rodger’s account of remoteness in Simmons v. British Steel Plc [2004] UKHL 20; [2004] PIQR P33, at paragraph 67:- “67. These authorities suggest that, once liability is established, any question of the remoteness of damage is to be approached along the following lines which may, of course, be open to refinement and development.(1) The starting point is that a defender is not liable for a consequence of a kind which is not reasonably foreseeable: M'Kew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 S.C. (H.L.) 20 , 25 per Lord Reid; Bourhill v Young 1942 S.C. (H.L.) 78 , 85 per Lord Russell of Killowen; Allan v Barclay (1864) 2 M. 873 , 874 per Lord Kinloch.(2) While a defender is not liable for damage that was not reasonably foreseeable, it does not follow that he is liable for all damage that was reasonably foreseeable: depending on the circumstances, the defender may not be liable for damage caused by a novus actus interveniens or unreasonable conduct on the part of the pursuer, even if it was reasonably foreseeable: McKew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 S.C. (H.L.) 20 , 25 per Lord Reid; Lamb v Camden LBC [1981] Q.B. 625 ; but see Ward v Cannock Chase DC [1986] Ch. 546 .(3) Subject to the qualification in (2), if the pursuer's injury is of a kind that was foreseeable, the defender is liable, even if the damage is greater in extent than was foreseeable or it was caused in a way that could not have been foreseen: Hughes v Lord Advocate 1963 S.C. (H.L.) 31 , 38, 40 per Lord Reid.(4) The defender must take his victim as he finds him: Bourhill v Young 1942 S.C. (H.L.) at 92 , per Lord Wright; McKillen v Barclay Curle & Co Ltd 1967 S.L.T. 41 , 42, per Lord President Clyde.(5) Subject again to the qualification in (2), where personal injury to the pursuer was reasonably foreseeable, the defender is liable for any personal injury, whether physical or psychiatric, which the pursuer suffers as a result of his wrongdoing: Page v Smith [1996] 1 A.C. 155 , 197F–H, per Lord Lloyd of Berwick.”[34]In general the police or prison service could not succeed in defeating or reducing a claim for damages resulting from injury during detention by relying on the conduct of the claimant which resulted in that detention. That is because the criminal conduct which led to detention would not usually be a cause of the loss. It would usually merely provide the occasion for the loss to occur. Where, however, the conduct which resulted in arrest and detention was part of the same series of events as the incident which caused the loss then the defence of contributory negligence would arise. In my judgment, this is such a case. It is trite law that the assessment of contributory fault requires an assessment of the extent to which the claimant’s conduct was blameworthy and its causative potency. The value judgment of which Aikens LJ spoke in Spencer requires “unreasonable” conduct of the Claimant which was, in law, a cause of the loss to be classified either as contributory fault or novus actus interveniens. The word “unreasonable” was described in his judgment in the same case as a “protean adjective” by Sedley LJ. Aikens LJ identified an “unwillingness to be prescriptive” in the authorities at paragraph 37 which means, I think, much the same thing. Aikens LJ said that this unwillingness was deliberate. In other words the law does not seek to define by any rigid rule what type of conduct by the claimant will defeat his claim as opposed to merely reducing it. The terms used to convey the nature of the judicial exercise involved are all fluid and each case depends on its facts:
“fairness” is at the heart of the exercise and that is a scarcely less protean adjective than “unreasonable”
. The passage from the judgment of Sedley LJ at paragraph 19 above explains what it adds. The aim of the exercise is to achieve a just outcome.[35]In my judgment, the intention of the Claimant in doing the “unreasonable act” will matter to the outcome. That is because criminal or reckless conduct is morally more blameworthy than conduct which is merely careless. As explained in Spencer, recklessness and deliberate misconduct are not necessary elements of misconduct which must be found before it can amount to a novus actus interveniens, see Sedley LJ at paragraphs 19 and 20, and Aikens LJ at paragraph 43. That is not to say that where they are found they are irrelevant. Thus, the act of jumping from a taxi in Beaumont was done in furtherance of a criminal conspiracy to avoid paying the fare. The same act, in the present case, was not. That is a sufficient distinction to make a difference in the outcome. I do not know, as I have said, 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 jumping from a vehicle moving at over 20mph. Whether he took this risk 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 it was not a criminal act done in an attempt to avoid paying the fare. It was certainly careless in that it 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 and more serious than, for example, the “unreasonable conduct” found against the claimant in Spencer. It was certainly a causative factor of great potency. In these circumstances I reduce the damages payable in the tort of negligence by 50%.[36]I now turn to the claim in trespass. The text books cited above do not contain any real assistance on the proper approach to remoteness of damage in false imprisonment cases where the loss includes injuries sustained accidentally in the course of escape. This is because such a claim has not been decided before, at least as far as the cases cited by the authors reveal. It is necessary therefore to address the matter in principle. In principle this is an intentional tort and a sub-division of trespass to the person. In another type of trespass, namely assault, injuries sustained while running away in fear of assault would be recoverable because steps taken to avoid injury caused by the assault are a direct result of the assault itself. The question is whether the same approach to this tort means that the damage sustained by an escaper from unlawful imprisonment can be said to be directly caused by it.[37]It is probably an accident of history that no defence of contributory fault under the Law Reform (Contributory Negligence) Act 1945 exists in claims in trespass. As the facts in this case reveal it is unfortunate. I have attempted to arrive at a just result in this case using the flexible approach premised on fairness which the law has developed in negligence claims. If I am right in that result, it follows that it is not fair for the defendant to be required to fund the whole of the claimant’s loss. The law of tort generally seeks to avoid results which are unfair. I have therefore considered the decision of the Court of Appeal in Pritchard v. Co-Operative Group Ltd [2012] QB 320 with some care to see if it can be distinguished. I can see no basis on which to do that, and therefore am bound by the result to find that the defence of contributory negligence is not available. I mean no criticism of the reasoning in that decision, which is powerful, when I say that this is regrettable for the same reasons which are explained by Sedley LJ in his dissenting judgment in Vellino v. Chief Constable of Greater Manchester Police cited above.[38]There is no doubt that the claimant was unlawfully imprisoned by the defendant. I reject Mr. Lynagh’s submission that he consented to be carried back to the rank in the taxi. He did not. He could not have made his lack of consent any plainer than he did when he jumped out of the taxi. I also reject the submission that the false imprisonment was de minimis. It was not. It was an abduction. The defendant must therefore pay damages for the direct consequences of that deliberate act. Those consequences include reasonable steps taken by the claimant to bring the detention to an end, in just the same way as the consequences of an assault would include reasonable attempts to escape from the attacker. This is why the costs of proceedings to secure release were recoverable in the 19th century cases cited in McGregor on Damages above, but only if they were reasonably incurred. At paragraph 20-022 in McGregor the author explains the decision in Bradlaugh v. Edwards 11 C.B. (N.S.) 377 as one involving an application of the third proviso relating to the recovery of legal costs whereby a person procures his discharge from false imprisonment. “In false imprisonment the prior proceedings in which the now claimant incurs costs are those whereby he procures his discharge. What law there is upon the recovery of such costs is very old, being contained in a few mid-19th century cases. These together sketch out the rule that recovery is allowed subject to three provisos: that the action brought to gain release was necessary, that the costs had not been refused by the court in that action, and that the costs incurred were reasonable ones. Pritchet v Boevey is the case which established that costs incurred in procuring discharge from a false imprisonment are recoverable; it would seem that all three provisos were satisfied. As to the second proviso, there had been no adjudication as to these costs by the judge who ordered the claimant's release; he would have given the claimant his costs if he had undertaken not to bring an action, and on the claimant's refusal no order had been made as to costs. Similarly, in Foxall v Barnett where the claimant, committed to prison for manslaughter by a coroner's warrant, had been admitted to bail and had subsequently got the inquisition under which he had been committed quashed, it was held that in an action against the coroner for false imprisonment he might recover the cost of quashing the inquisition, Lord Campbell insisting that the first proviso had to be shown to be satisfied. By contrast, with the second proviso not satisfied in Loton v Devereux, where the claimant had been refused costs in the prior action as opposed to there being no order as to costs, the claimant failed to recover them as damages. And it is submitted that a failure to satisfy the third proviso gives the proper explanation of Bradlaugh v Edwards. The jury not having awarded the claimant damages in respect of his expenses in procuring bail before the magistrates and in getting together evidence for the defence of the charge, Erle C.J. indicated that these costs may have been unreasonably incurred.”[39]The footnote extracts a passage from the judgment of Erle CJ as follows:- “ibid. at 384:
“Where a party has been illegally imprisoned, and has been put to expense in procuring his discharge, he may very well urge that fact before the jury as an aggravation: but he has not right to demand to be reimbursed ex debito justitiae. It is in the discretion of the jury to give him such damages as they may consider a sufficient compensation for the wrong the party has sustained, irrespective of any expense he may, perhaps needlessly, have incurred in his defence.”
[40]The provisos relating to the recovery of legal costs do not exist separately from the general law of remoteness in intentional torts. They arise from the co-existence of the jurisdiction to award the costs of other proceedings in those proceedings themselves. The loss therefore is predicated upon the exercise, or non-exercise of a judicial power in other proceedings. Another reading of the decision in Bradlaugh suggests that the explanation appears to be based on the discretion of the jury to award general damages without regard to any expense incurred if they consider some lesser sum to be a sufficient compensation for the wrong incurred. Erle CJ approached the case on the basis that the jury may have had in mind the fact that the unlawful imprisonment had denied the plaintiff the opportunity to “do that which he might afterwards have deeply regretted, and therefore that the injury…was in the result a substantial benefit to the plaintiff…..”. Earlier, he had said:- “It is in the discretion of the jury to give him such damages as they may consider a sufficient compensation for the wrong the party has sustained, irrespective of any expense he may, perhaps needlessly, have incurred in his defence.” It may, therefore, be that there is little assistance on this issue to be derived from that decision which has a theological aspect to its ratio which is not of relevance to the present case. What it does suggest is that the steps taken to bring unlawful imprisonment to an end will not invariably result in an award of damages.[41]Because the potential relevance of the different rule of remoteness in trespass was not fully explored before me in submissions, I circulated an early draft of this judgment and asked for submissions in writing on the issue. The Defendant did not make any such submissions and therefore neither supported nor repudiated the provisional conclusion which I had reached in his favour. In helpful written submissions received in answer to my request on behalf of the Claimant that the cases cited in McGregor do not support the proposition that a claimant can only recover as damages for unlawful imprisonment compensation for injuries caused by his own action where that action was reasonable and necessary. It is submitted that their true explanation is found in the special rule which limits the recoverability of legal costs as damages, relying on the passage in McGregor on Damages I have set out in the previous paragraph. I do not agree. The award of costs by way of damages in subsequent proceedings where they might have been awarded in the original action but were not is a special situation. However, it is a situation which requires additional limits on recoverability to be built on to the limits which apply in all cases, not limits which are wholly different in kind. The fundamental problem is that the legal costs in the one case, or the injuries resulting from an escape attempt in the other, both flow directly from a decision by the Claimant. They are not directly caused by the unlawful imprisonment but by the claimant’s desire to bring it to an end. The legal costs will be recoverable if, but only if, they were necessary and therefore reasonably incurred. This is “proviso 1” in McGregor’s analysis. This is a rule of general application. Provisos 2 and 3 are specific to legal costs. Proviso 1 is because otherwise they will not be caused by the imprisonment, but by the foolish decision of the Claimant. To put it another way, they will not be the result of the claimant reasonably mitigating his loss. In such cases the court will have to look additionally at provisos 2 and 3 to see whether full compensation resulted from a costs award made by the court which dealt with the action for relief, and, if not, why not. This is the approach which Carnwath J, as he then was, considered in British Racing Drivers’ Club v. Hextall Erskine & Co [1996] 3 All ER 667, at 691F, when he addressed the third proviso by ordering a taxation of the costs. I therefore find that the adverse consequences of an escape attempt, in this case personal injury, are only recoverable if they are direct result of the tort of unlawful imprisonment. To satisfy that test they must be the consequence of a reasonable and necessary act intended to bring the unlawful imprisonment to an end.[42]I have found that the claimant did not act reasonably. He was substantially to blame for his own misfortune. I have in mind the passage from the judgment of Morris LJ in Sayers v. Harlow Urban District Council [1958] 1 WLR 623 at 630 cited by Mr. Killalea:- “It seems to me that the most natural and reasonable action on the part of someone who finds herself undesignedly confined is to seek the means of escape. Those who are responsible for the unjustifiable detention can hardly, either with good grace or sound reason, be entitled to be astute in offering criticism of the actions of the unfortunate victim”[43]That decision concerns a claim in negligence in which the Claimant suffered a reduction of 25% for contributory negligence. Having been accidentally locked in the cubicle of a public lavatory she tried to escape by climbing over the partition. She decided that was not possible and descended, falling and hurting herself as she did so. The observations of Morris LJ are to be understood in that context. The criticisms advanced by the Defendant of the Plaintiff’s conduct were in fact justified. They did not, as the County Court Judge had held, defeat the claim in its entirety but they did defeat it in part. I have followed as similar approach to this decision in my conclusion in the negligence claim. I do not think it has anything to contribute to my consideration of the extent to which the result on the issue of the causation of the injuries might be different in trespass from that in negligence.[44]It appears to be common ground, and supported by the textbook extracts set out above, that the rule on causation in negligence cases is not the same as it is in cases in trespass and it is necessary to consider whether the approach to novus actus is the same in both torts. In my judgment it is clearly not. In trespass there is no sliding scale in assessing the consequences of unreasonable conduct by the claimant, with its imprecise dividing line between contributory fault and novus actus interveniens, because there is no contributory fault defence available. The claim either succeeds or fails in its entirety. The “value judgment” described by Aikens LJ, which is an essential tool in deciding what conduct on behalf of the claimant breaks the chain of causation and what does not, cannot be made in trespass cases. This means that the court must approach the concept of novus actus interveniens differently. Loss which flows from an unreasonable attempt to escape from unlawful detention could be described as flowing from a novus actus interveniens but it may also be described as not being directly caused by the unlawful imprisonment but by the Claimant himself. A third way of expressing it is to say that it flows from an unreasonable attempt to mitigate loss. There is a limit imposed by the law on the recoverability of losses in trespass which may be caused factually by the wrongful conduct of the defendant, but it is not the same as that in negligence. It is not based on foreseeability, and does not involve the concept of fairness which underpins these decisions in the tort of negligence, as I have sought to demonstrate above. It allows compensation for the direct consequences of the tort, which includes the Claimant’s reasonable attempts to bring the effects of the tort to an end by his own conduct. He is entitled to recover the cost of reasonably mitigating his loss by bringing the false imprisonment to an end. It does not allow recovery for the consequences of the Claimant’s unreasonable conduct. This would explain why the common law did not develop a defence of contributory negligence to actions in trespass, which is the reason why it is not available under the 1945 Act. 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.[45]For these reasons there will be judgment for the Claimant for 50% of his damages for the consequences of his injuries which are to be assessed at a later hearing.[46]The Claimant is entitled in addition to a modest sum of damages for unlawful imprisonment which does not take the injuries into account. The assessment of such a sum is an arbitrary and unsatisfactory exercise. He was driven away from his home for about ¾ mile unlawfully. Taken on its own, this would be an irritating and unsettling incident, but not one with any serious consequences. Had he left the vehicle when it was stationary at lights, the impact of the abduction would have been transitory. I have broadly accepted the evidence of the Defendant and therefore find that his intention was not to do anything other than to return him to the rank where he would be released. This is the kind of conduct which creates a significant risk to life and limb as this case, and Beaumont v. Ferrer, both demonstrate. Where, as here, it occurred because of a misunderstanding about the intentions of the Claimant and not because he was intending to evade payment of the fare a modest increase in the award to include aggravated damages is appropriate. A sum of £250 is, in my judgment, sufficient to mark the wrongful conduct of the Defendant leaving the injuries aside.[47]For the reasons given in a Form N460 I have acceded to the applications for permission to appeal submitted by both parties. I am therefore required to state that this is a final judgment and that appeal lies to the Court of Appeal Civil Division. An important factor in the grant of permission is the fact that the appeal in Beaumont v. Ferrer for which Jackson LJ has granted permission as I have noted above is now listed for July 2015. I therefore direct that Notices of Appeal must be lodged within 14 days and that the case should be placed before the Lord Justice managing that appeal to consider whether the cases should be heard by the same constitution and, if so, how that may be achieved. When lodging their Notices of Appeal the parties should also lodge brief written submissions on that issue.

Cited in 4 later judgments