Annie Mackley successful at trial in Berresford v Shah
Annie Mackley acted on behalf of the successful Claimant in the recent liability-only trial in Berresford v Shah [2024] EWHC 3500 (KB). The decision concerns the duties owed by taxi drivers towards their passengers and the application of the illegality defence to fare dodgers.
Facts
The Claimant and her friend had been passengers in Mr Shah’s taxi. HHJ Walden-Smith accepted the Claimant’s case that, while the girls intended to pay the full fare, they hadn’t had enough money and would need to get the balance from another friend on arrival. Once the taxi had stopped, Mr Shah asked for the fare and a discussion took place about how the girls were going to pay him. The Claimant’s friend got out of the taxi to hand some cash to Mr Shah. However, Mr Shah had become suspicious that the girls were not going to pay him the fare and had decided to “teach them a lesson” by returning them to the taxi rank. He drove off while the Claimant was getting up to exit the vehicle. The rear door was still open, as the taxi’s auto-locking mechanism was broken. The Claimant moved to exit the moving vehicle, fell from the open door and sustained serious brain injuries.
There was a substantial amount of factual dispute and HHJ Walden-Smith heard a large amount of oral evidence from the Claimant’s friend and from Mr Shah himself in order to resolve these matters. Mr Shah’s evidence raised a procedural issue in relation to the translation of witness statements. His first language was Urdu. It was apparent that his witness statement had first been taken in English and subsequently translated into Urdu, contrary to CPR Part 32 which requires these steps to be taken the other way around. The statement was therefore substantively defective and Mr Shah required permission to rely on it pursuant to Practice Direction 32. Permission was granted and Mr Shah went on to give oral evidence without the benefit of a translator. However, HHJ Walden-Smith noted at [8]:
I am mindful, however, of the defects in Mr Shah’s witness statement and I place greater reliance on what was said by Mr Shah to the police at the time of the incident as a more accurate reflection of his account. The manner in which the statement was drafted fundamentally affects its reliability. That is of particular significance in a case such as this as there is substantial dispute about the factual scenario leading to Ms Berresford being injured.
Decision
HHJ Walden-Smith found that Mr Shah had been negligent. Having reviewed the decisions in Hicks v Young [2015] EWHC 1144 and Beaumont v Ferrer [2016] EWCA Civ 768, it was held that the risk of personal injury to the Claimant was reasonably foreseeable. The Claimant would not have wanted to remain on her own in the taxi and it was reasonably foreseeable that she would try to follow her friend.
The more difficult issue was the question of illegality. It had been argued that the Claimant was attempting to make off without payment contrary to section 3 of the Theft Act 1978 and that this barred the claim. HHJ Walden-Smith found that the Claimant had not been engaged in any illegal activity, noting that illegality was for a defendant to prove on the balance of probabilities.
However, HHJ Walden-Smith went on to provide helpful comments as to the application of the illegality defence if illegality had been proven. It was said that, had illegality been established on the facts, this would not have barred the recovery of damages. Applying the analysis set out in Patel v Mirza [2016] UKSC 42, HHJ Walden-Smith said at [39]:
Even if Mr Shah could make out his suspicions that Ms Berresford and Ms Dunbar intended not to pay the fare to him, the denial of damages would not amount to a deterrent to people who might otherwise think of dodging a fare. Further, the denial of damages in these circumstances would act against public policy in that it would potentially remove a restraint on dangerous or careless driving by those who are carrying out driving for others as licensed taxi drivers. Finally, the impact of the denial of damages to someone seriously injured in the course of seeking to “dodge” a cab fare would be entirely out of proportion to the illegal act. Following the Supreme Court decision in Patel v Mirza, as set out in the speech of Lord Toulson, the defence of illegality would not succeed, even on a different factual basis.
It was held that damages should be reduced by 10% to reflect the Claimant’s contributory negligence in seeking to escape the moving vehicle. While deciding to exit the vehicle had been foolish, the Claimant would nonetheless have been frightened and was reacting to fast-moving events.
A copy of the judgment can be found here (Berresford v Shah & Anor [2024] EWHC 3500 (KB) (03 October 2024).
Analysis
The decision in Berresford v Shah is a helpful reminder as to the scope of a driver’s duty towards his passengers. Along with Hicks v Young and Beaumont v Ferrer, it is clear that a taxi driver who continues to drive in circumstances where there is a foreseeable risk that their passengers will attempt to escape is highly likely to be found in breach of duty. Relevant factors to the question of reasonable foreseeability include the absence of working locks, the fact that a passenger door is open or the fact that other passengers have already left the vehicle. A further damning factor is the surprisingly common attitude that suspected fare dodgers should be “taught a lesson” by being driven back to the taxi rank. In such circumstances, it will usually be foreseeable that the passengers – whether guilty or not – would wish to escape the vehicle despite the risks to their safety.
The decision is also the first to consider the application of the illegality defence to fare dodgers after the Supreme Court’s restatement of the law in Patel v Mirza. The decision in Beaumont v Ferrer previously suggested that the defence would apply where a passenger was injured in the course of making off without payment. However, that decision was handed down one day before the Supreme Court’s decision in Patel v Mirza and did not follow the process of analysis set out by Lord Toulson in that case (namely the consideration of (a) the underlying purpose of the prohibition transgressed, (b) any other public policy and (c) the proportionality of denying the claim). HHJ Walden-Smith was therefore persuaded not to follow Beaumont v Ferrer and consider Lord Toulson’s three principles afresh, reaching a different result.
Berresford v Shah also emphasises the importance of complying with the procedural rules on the translation of witness statements. Errors in the translation process go directly to the reliability and credibility of the witness statement. A failure to comply with Part 32 can have serious consequences, ranging from a witness statement being struck out of the judge’s own motion (as in Correia v Williams [2022] EWHC 2824) to a finding that the reliability of the witness statement is fundamentally diminished, as here. Where foreign language issues arise, careful preparation of witness statements – and careful scrutiny of an opposing party’s witness statements – is likely to pay dividends.
Annie Mackley was instructed by Angela Beric and Laura Selby of Slater & Gordon.
