Akers v Motor Insurers Bureau [2003]

Reported: [2003] EWCA Civ 18
Year: 2003
Court: Court of Appeal
Full text available: Here

FACTS:-

The Claimants were relatives of a young man, Graham Akers who was killed in a road traffic accident on the 14th June 1997. Mr Akers was sixteen and three quarters old. He was one of a number of passengers in a car driven by Roy Thorne, who was the other Defendant (in addition to the MIB). Mr Thorne was subsequently convicted of causing death by dangerous driving and he was not insured. There was no dispute as to negligence, but allegations of contributory negligence were raised. The trial judge had held that there had been contributory negligence, both in the fact that Graham Akers had not been wearing a seat belt and also in accepting a lift from somebody whom he knew had been drinking and had taken cannabis.

There was then the issue of no insurance. The evidence from the people involved in the accident had not been entirely clear.

Graham Akers and another young man, Michael Cameron had arrived in the Margate area in a care driven by another man, who had then been arrested by the police. As a consequence they were stranded and wanted a lift back to south east London. There was evidence that Mr Cameron had pressed Mr Thorne to give them a lift in his vehicle. Mr Thorne said in his evidence that he had told Mr Cameron in the presence of Mr Akers that he was uninsured. He had first of all refused but then relented as he was offered money by another witness, Mr Goldfinch.

This witness, Mr Goldfinch had two statements. He said in his first witness statement that he had told both Mr Cameron and Mr Akers that Mr Thorne was uninsured. He had also heard Mr Thorne say the same thing to both young men. In his second statement he said that he told Mr Cameron and Mr Akers that Mr Thorne did not own the car but he could not specifically remember whether Mr Thorne had said that he was uninsured.

Michael Cameron said that he remembered someone, possibly Mr Goldfinch saying that Mr Thorne never taxed or insured the car.

The MIB said that they were not liable under the terms of their 1988 Agreement with the Secretary of State. In particular Clause 6(1) of the 1988 Agreement stated:-

“The MIB shall not incur any liability under clause 2 of this Agreement in a case where:
….
(e) at the time of the use which gave rise to the liability the person suffering death or bodily injury…was allowing himself to be carried in or upon the vehicle and either before the commencement of his journey in the vehicle or after such commencement if he could reasonably be expected to have alighted from the vehicle he –
……
(ii) knew or ought to have known that the vehicle was being used without there being in force in relation to its use such a contract of insurance as would comply with Part IV of the Road Traffic Act 1972.”

The relevant evidence in the case came from two passengers in the car and from the driver himself. They indicated that Graham Akers knew that there was no insurance. However the judge had concluded that Mr Akers had not known that there was no insurance. He doubted whether Mr Akers heard any statement to the effect that the driver was uninsured. He also stated that he had not been satisfied that Mr Akers, a sixteen year old without driving experience, had been put on inquiry as to the question of insurance.

The MIB appealed the trial judge’s decision, saying that he had made no clear findings of fact. None of the evidence given by the witnesses appeared to have been rejected, and a discussion about lack of insurance had taken place with Graham Akers being present. The Claimants’ counsel on the other hand argued that this was a group of young men larking about, and on the balance of probabilities, Mr Akers did not hear what was being said about insurance.

HELD:-

Lord Justice Keene gave the first judgment.

The phrase “knew or ought to have known” had been the subject of recent consideration by the House of Lords in White v White and the MIB [2001] 1 WLR 481. There the House of Lords had said that “knew or ought to have known” was to be given the same meaning as “knew” in the Second EEC Motor Insurance Directive 84/5/EEC. A mere failure to make enquiries as to insurance, however negligent in the circumstances, was not enough by itself to bring the exception into play. It would apply if the passenger had actual knowledge, or if he deliberately refrained from asking questions lest his suspicions be confirmed.

Lord Justice Keene considered the main points of the evidence. The judge had not made any express findings of fact as to who said what and in what circumstances. The evidence indicated that there had been some kind of discussion about the absence of insurance. It was difficult to discern any evidence to the contrary. The trial judge had probably accepted that someone had made a statement to the effect that the car was not insured, and he also seemed to have accepted that these young men were in a tight group.

The trial judge had said that he had doubts as to whether Mr Akers heard the statement being made about lack of insurance. That was a somewhat unusual way of formulating a conclusion in a civil case, since there did not appear to be any evidence that pointing to Mr Akers not having heard the statement.

The trial judge had applied too stringent a standard of proof on this issue. In all the circumstances it was difficult to see how it could be properly concluded that on the balance of probabilities, Mr Akers did not that what was being said. At its lowest, Mr Akers the court was forced to conclude that Mr Akers must have been aware that there was a problem with insurance, and in those circumstances he ought to have known, in the sense established by White v White that there was no insurance. At the very least, he was deliberately avoiding specifically inquiring further about the topic. Therefore the MIB’s appeal would be allowed.

Mr Justice Jacob and Lord Justice Gibson agreed.

Note – this case needs to be read in the light of Phillips (As Representative of the Estate of Neville Phillips Deceased) and Rafiq (1) and The MIB (2) [2007] EWCA Civ 74