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Isabel Hitching KC successfully defeats claim against motor insurers by passenger abandoned by a criminal taxi driver

Carroll v (1) Michael Taylor (2) Michael Doyle (3) Emms Taxis Limited (4) QBE Insurance (Europe) Limited [2020] EWHC 153 (QB)

Mr Carroll suffered catastrophic head injuries in the early hours of Sunday 19 August 2012 as he made his way home after a night out with friends in the centre of Liverpool. He had been drinking and shortly before 3am hailed a black cab to take him to his home in Huyton. The taxi driver did not do so. Rather, he stole the Claimant’s debit card and PIN and then left Mr Carroll in the Old Swan area of Liverpool, to find his own way home some three miles away. Mr Carroll without any money on him, continued home on foot and, at the same time, his girlfriend set out to find him in her car. She did not find him. Whilst pausing on the walk home Mr Carroll fell off the barrier of a motorway bridge into the car park below and was severely injured. Mr Carroll, who is now 31 years old, remains severely brain injured and requires 24-hour care. The taxi driver was convicted of theft.

QBE Insurance (Europe) Ltd had issued a policy and certificate of insurance to the owner of the taxi, which also extended to the taxi driver who hired the cab. Mr Carroll alleged a direct right of action against the insurer under the European Communities (Rights against Insurers) Regulations 2002 in respect of claims in negligence against the driver and owner of the taxi.

Isabel Hitching KC, instructed by Andrew Parker and Adam Ballard of DAC Beachcroft on behalf of QBE, contended that no such direct right of action existed because the Claimant’s injuries were not caused by and did not arise out of the use of the taxi as required by section 145 of the Road Traffic Act 1988.

At a trial of this question as a preliminary issue the judge, Mrs Justice Tipples, found that QBE was ‘clearly’ correct. Applying the principles derived from Dunthorne v Bentley [1996] RTR 428, CA and recently summarised by Lord Hodge in R & S Pilling (trading as Phoenix Engineering) v UK Insurance Ltd [2019] 2 WLR 1015, SC, the judge held that it was ‘very clear’ that ‘the Claimant’s injuries had nothing whatsoever to do with “the use of the vehicle on a road” in the context of section 145(3)(a) of the RTA’. The judge confirmed that Dunthorne v Bentley was ‘close to the line’ and held that Mr Carroll’s claim was ‘nowhere near the line’.

Mrs Justice Tipples also held, as QBE had submitted in the alternative, that ‘the essential character of the journey’ was criminal and therefore fell outside the permitted user following Keeley v Pashen [2005] 1 WLR 1226, CA.

In a thorough and careful judgment, the judge endorsed Silber J’s analysis of the applicable law in AXN v Worboys [2012] EWHC 1730 (QB), the taxi driver rapist case in which Isabel Hitching KC, also instructed by Andrew Parker of DAC Beachcroft, successfully appeared for motor insurers.

View the judgment here.

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