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Carroll v Taylor – Court of Appeal rejects appeal ‘bound to fail’

On 2 March 2021 Stuart-Smith LJ refused permission to Mr Carroll to appeal the order of Tipples J rejecting his claim in 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, Tipples J , 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’.

In his reasons for refusing permission to appeal Stuart-Smith LJ concluded that an appeal on the basis that Mr Carroll’s injuries ‘arose out of the use of the taxi’ was ‘bound to fail’.  He stated that Tipples J had adopted the right approach, taking ‘all potentially relevant circumstances and guidance into account – including that Dunthorne v Bentley was close to the line and the observations of Lord Hodge JSC in Pilling’.

Stuart-Smith LJ expanded stating ‘The Judge was right to test the Claimant’s case by reference to (a) whether the journey had come to an end – which it clearly had; and (b) any temporal or geographical nexus between the use of the taxi and the injuries suffered by the Claimant.  She was also right (despite the fact that she was not applying the words ‘caused by’) to advert to the fact that the injuries were caused as a consequence of a series of decisions independently made by the Claimant after the journey in the taxi had ended, each of which progressively tended to the conclusion that the injuries arose out of what happened after the journey had ended and did not arise out of the use of the taxi by the taxi driver.’

Tipples J had 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.

Stuart-Smith LJ’s decision and clear reasoning provides welcome Court of Appeal level confirmation as to the interpretation and application of the Dunthorne v Bentley test.

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