Neil Carroll (A protected party, suing by his mother and litigation friend, Catherine Carroll) v Michael Taylor
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Tipples |
| Judgment Date | 30 January 2020 |
| Neutral Citation | [2020] EWHC 153 (QB) |
| Date | 30 January 2020 |
| Docket Number | Case No: QB-2018-001014 |
| Court | Queen's Bench Division |
[2020] EWHC 153 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION GENERAL
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Tipples DBE
Case No: QB-2018-001014
Mr Christopher Melton QC and Mr Robert Smallwood (instructed by E Rex Makin & Co) for the Claimant
Miss Isabel Hitching QC (instructed by DAC Beachcroft) for the Fourth Defendant
Hearing dates: 10, 11, 12 and 13 December 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Hon.
Introduction
The Claimant, Neil Carroll, suffered catastrophic head injuries in the early hours of Sunday 19 August 2012 as he was making 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 take him home. Rather, he stole the Claimant's debit card and PIN and, having done so, left the Claimant in the Old Swan area of Liverpool, to find his own way home. The Claimant was some three miles short of his destination.
It was in these circumstances that the Claimant, 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 and, whilst pausing on the walk home, the Claimant fell off the barrier of a motorway bridge into the car park below and was severely injured. The Claimant was discovered at around 8am and taken to hospital. He is now 31 years old, remains severely brain injured and requires 24-hour care.
The First Defendant, Michael Taylor, was the taxi driver (“ the taxi driver”). He pleaded guilty to theft and received a custodial sentence in May 2013.
The Second Defendant, Michael Doyle, was the owner of the taxi, which had vehicle registration number WV52 CUO (“ the taxi”). The taxi was hired from him by the taxi driver.
The Fourth Defendant, QBE Insurance (Europe) Ltd (“ the insurer”), issued a policy and certificate of insurance to the Second Defendant in respect of the use of the taxi for “social, domestic and pleasure purposes, for the insured's business and for the purpose of hire and reward”, which provided no more than the minimum compulsory scope required under the Road Traffic Act 1988 (“ the RTA”) in respect of third party injury claims. This cover extended to the taxi driver. The policy was in force in August 2012. The relevant parts of the policy are set out in more detail at paragraphs 31 to 34 below.
The Claimant alleges a direct right of action against the insurer in respect of claims in negligence under the European Communities (Rights against Insurers) Regulations 2002. The basis for this claim is that “for the purposes of section 145 of [the RTA], the [bodily injury] arose out of the use of the taxi on the road” (para. 3 of the particulars of claim). The insurer maintains that the Claimant does not have any claim against it under the RTA or under the terms of the policy of insurance.
The preliminary issues I have to decide are to determine whether the insurer is liable in respect of the Claimant's injuries under section 145(3)(a) of the RTA or the policy of insurance.
I am not concerned with any other issues in the proceedings.
The preliminary issues
The Claimant is a protected party and these proceedings are brought by his mother and litigation friend, Catherine Carroll. The claim form was issued on 13 November 2018 seeking unlimited damages for personal injury and uninsured losses against the Defendants. The claim form was served, together with the particulars of claim, on 7 December 2018. The insurer served its defence on 4 January 2019. On 17 June 2019 Master Thornett allocated the claim to the multi-track and, on the application of the insurer, directed the trial of four preliminary issues.
The preliminary issues were simplified by agreement into two questions, namely:
Question 1: Did the Claimant's injuries arise out of the use of the taxi on a road or other public place within the meaning section 145(3)(a) of the RTA?
Question 2: Given the basis for the Court's finding on the first question and, in particular, the relevance or otherwise of the First Defendant's deliberate criminal acts, does the insurance policy issued by insurer to the Second Defendant respond to the Claimant's claims in tort against the First and Second Defendants if those claims in tort are proved?
The insurer maintains that the answer to question 1 is “No” and that the second question does not arise (although if it did, the answer would be “No”). The insurer says the claim should therefore be dismissed.
The Claimant maintains that the answer to both these questions is “Yes”. The Claimant says that claim against the insurer should not be dismissed prior to trial of the claims against the First, Second and Third Defendants.
On the facts of this case the clear conclusion I have reached is that the answer to each of these questions is “No”. The claim against the Fourth Defendant must therefore be dismissed.
The facts
The relevant facts for the purposes of determining the preliminary issues were agreed between the parties and I was provided with an agreed statement of facts. There was also CCTV footage which I was taken through by Counsel for both parties. However, the inferences to be drawn from that footage were not agreed, and I have drawn my own conclusions from the observations I made from the CCTV for the purposes of determining the preliminary issues.
In August 2012 the Claimant, then aged 23, was living together with his then girlfriend, Kathryn Dyer (“ Ms Dyer”), and his mother in Huyton, Liverpool. On the evening of 18 August 2012 he went out for a birthday celebration with friends in Liverpool city centre. The Claimant was drinking alcohol with his friends until about 1.30am and, for the purposes of this hearing, I am asked to assume he drank in the range of 21 to 32 units of alcohol. Anthony Langley, one of the friends with whom the Claimant was drinking, and who had himself drunk a similar amount to the Claimant, said of the Claimant that “he had drunk a bit but wasn't what I would describe as drunk”. However, it is accepted by the insurer for the purposes of this hearing that the Claimant's judgment was substantially impaired by drink.
The Claimant, using his own debit card and PIN, paid his bar bill at Revolution Bar at 1.40am on 19 August 2012. He left that bar on his own at 2:05am. He did not tell any of his friends that he was leaving, but that was not unusual. The CCTV footage showed the Claimant leaving the bar and then meandering down Fleet Street towards Hardman Street. The Claimant was walking to avoid the other people moving around him. However, he was not swaying whilst he was walking. The Claimant was on his phone at the time, no doubt to Ms Dyer.
Before he left the club, the Claimant had told Ms Dyer he was going to purchase a takeaway meal and he would then take a taxi to their home in Huyton. Having bought something to eat, the Claimant phoned her again and told her that he could not find a taxi. She suggested that he go back to the takeaway and ask if they would phone for a mini-cab for him. The Claimant did this, but they refused to help.
In Hardman Street at about 2:45am the Claimant hailed and got into the taxi driven by Michael Taylor, the taxi driver. The Claimant gave the taxi driver his full home address in Huyton, Liverpool and requested to be taken home. The Claimant's home address was about six and a half miles from Hardman Street. The Claimant phoned Ms Dyer again and told her he was in a taxi and on his way home. Once in the taxi, the Claimant's debit card was stolen from him by the taxi driver. The taxi driver somehow obtained the Claimant's wallet, removed the Claimant's debit card and swapped it for the debit card of a Mr Howard Davies, which he had stolen from Mr Davies on an earlier occasion. The Claimant was unaware that his debit card had been stolen from his wallet and replaced with someone else's card. The taxi driver can only have achieved this because he knew the Claimant was affected by drink, and therefore easy to take advantage of.
In my view the taxi driver will have known the Claimant was affected by alcohol when he spoke to the Claimant and the Claimant told him where he wanted to go. That will have been either immediately before the Claimant got in the cab, or once he was inside. There is no evidence before me to show that the taxi driver knew the Claimant was drunk before that point in time, for example by the way the Claimant was walking along the street.
The taxi driver had stolen from other passengers in this way before. He had stolen debit cards from Mr Davies and a Mr Thomas McDonald, who were drunk passengers in his taxi. However, having done so, he did take each of these passengers to their requested destinations.
Having picked up the Claimant, the taxi driver stopped 10 minutes later outside the Santander bank on Prescot Road in the Old Swan area. This was just under half-way to the Claimant's home. The Claimant got out of the taxi in order to get cash from the cash point at the bank. The taxi driver also got out of the cab and followed the Claimant to the cash point and stood behind him watching him put his PIN into the cash machine. Just before 3am the Claimant tried to withdraw cash from the Santander cash point. He was unable to do so, as the card he was using was not his, and his PIN did...
To continue reading
Request your trial