UK: Crime Doesn't Pay – Criminal Enterprise And Negligence

How should the law treat a claim in which the claimants are part of criminal enterprise, but in which the negligence of the defendant also played a part?

Beaumont & O'Neill v David Ferrer[2016] EWCA Civ 768

The Issue

It's often said that crime doesn't pay, but the question the English Court of Appeal had to consider here was whether the maxim ex turpi causa non oritur actio (that a claimant cannot seek a legal remedy if it arises from his own criminal act) applied in what was a relatively minor crime of failing to pay a taxi driver.

The facts

On 27 July 2009, Josephn Beaumont and Lewis O'Neill, both 17, decided to go into Manchester City centre with four other friends. It had already been decided by the group as a whole that they would "jump the taxi" into Manchester; in other words, once at their destination, they'd run off from the taxi without paying.

The taxi driver, David Ferrer, picked them up in his Nissan minivan. This had three rows of seats, though to access the back row, the middle seats had to be tipped forward. Beaumont and O'Neill sat in the back row, while three of their friends sat in the middle row, and one in the front passenger seat.

As he approached their destination, he stopped at traffic lights and advised them it was Ł10. Immediately, the three in the middle row, who had access to the offside sliding door, jumped out and ran. As they did so, Beaumont was clambering over the seats of the middle rows, and O'Neill also had his leg over, both ready to join their companions. At this stage, the lights had changed to green, and Mr Ferrer began driving off. As he turned the corner, Beaumont either fell or jumped from the taxi backwards, landing on his back and hitting his head. He sustained a serious brain injury. Moments later, O'Neill also chose to jump out, and sustained a serious injury – albeit less serious than Beaumont.

In the lower court, the judge had held that both Beaumont and O'Neill could have taken their seats, put their seat belts on, and if they had done so, they would not have been injured. They had taken part in a joint criminal enterprise to "jump" the taxi. They were barred from recovery by the ex turpi maxim.

On their appeal, Beaumont and O'Neill argued that Ferrer knew that they were going to try and follow their colleagues in jumping the taxi. Instead of resigning himself to the loss of the fare, which he ought to have done, he drove off, knowing they were not wearing seatbelts and the door was open. Further, the criminal enterprise was so trivial as not to engage to ex turpi maxim, and in any event the criminality did not cause the injury, but was "merely the circumstance in which Mr Ferrer's negligence occurred."

Ferrer accepted that he had been negligent in driving off after the first three had left the taxi, since a door was open and they were not wearing seatbelts. But the jumping from the taxi was an intervening cause and there was no liability. In any event, the ex turpi principle did apply, and barred Beaumont and O'Neill from a remedy.

The decision

The Court of Appeal dismissed the appeal.

While it was correct that Ferrer had been in breach of his duty of care to his passenger in deciding to drive off, in reality, the incident was caused by Beaumont and O'Neill's part in the criminal act of making off without payment. That being the case, there should be no recovery.

The Court acknowledged that the law in relation to the ex turpi maxim has received differing opinions in relation to its scope from the Supreme Court in recent times (in Hounga v Allen [2014] 1 WLR 2889 and Les Laboratories Services v Apotex Inc [2015] AC 430).

In this case, however, running off without payment was neither collateral to the civil claim nor were there any public policies which outweighed the principle that those engaged in the commission of a crime should not recover for what happens to them as a result of their illegal conduct. The current divergence of opinion therefore did not affect the decision.

Our view

Common sense dictates that the law should not compensate someone for injury caused by their own criminal conduct, and this case is a further demonstration of that.

However, in considering previous decisions, it is clear that the scope of the well-used maxim is open to debate, and in a situation where the criminal conduct is merely incidental to the negligent act of a defender, the outcome may well be different. Read the full decision here.

Crime Doesn't Pay – Criminal Enterprise And Negligence

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Authors
Marco Rinaldi
 
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