FACTS:-

The Claimant, Miss Bretton suffered personal injury while a passenger in a Rover in an accident that occurred on the 30th June 2000. The driver of her car, a Mr Bryant-Powell was killed in the accident together with another passenger. The Claimant had insured the car for her own driving but not for that of Mr Bryant-Powell. The car had been purchased by Mr Bryant-Powell but put in Miss Bretton’s name. Mr Bryant Powell had told Miss Bretton that he had insured himself to drive the vehicle but he had no insurance at all. The trial judge had found that she did not know or suspect that he had failed to obtain any insurance at all. The judge also found that at the time of the accident, the car was being “used” by the Claimant for the purposes of section 143 of the Road Traffic Act 1988. She owned the car and had a sufficient degree of control over the car on this occasion.

The Defendant, Mr Hancock was the driver of the other car involved in the accident. He and his wife (who was a passenger) were injured but they brought no claim in respect of their injuries. Mr Hancock pleaded guilty to causing death by careless driving under the influence of drink and he was sentenced to two years prison.

However Mr Bryant Powell was over the speed limit at the time, because he was racing another car.

However Mr Hancock did counterclaim against the Claimant on the basis that she was in breach of her statutory duty to insure the car. (Section 143(1) of the Road Traffic Act 1988) As a consequence he was unable to recover any contribution against the deceased driver, who was uninsured and whose estate had no means.

On the 15th March 2004 the judge assessed the Defendant’s liability at 75% and that of the deceased driver at 25%. The judge upheld the Defendant’s counterclaim on the basis that she was uninsured applying the case of Monk versus Warbey [1935] 1 KB 75. In that case the Claimant had been injured in a collision with a car belonging to the Defendant who had permitted it to be used by an uninsured driver.

The Claimant appealed against the judge’s finding on causation (i.e. responsibility for the accident) together with the finding that she was liable to pay the counterclaim on the basis that she was uninsured.

HELD:-

On appeal to Rix LJ, the judge’s findings on causation were upheld.

There was then the question of whether Miss Bretton had an ownership interest and was a “user” of the vehicle. There was no allegation made that she had caused or permitted Mr Hancock to drive the car without insurance, only that she herself had been a “user” of the vehicle at the time of the accident. This was a crucial point because if Miss Bretton was not a “user” of the vehicle, Mr Hancock would not be able to make a counterclaim against her on the basis of Monk versus Warbey. Both parties conceded that the issue of whether Miss Bretton was a user or not, would be settled by a finding on whether she had an ownership interest in the vehicle.

Rix LJ considered the evidence. Mr Bryant Powell had purchased the Rover for cash, but the name for the buyer on the invoice was that of Miss Bretton. Mr Bryant Powell had signed a declaration on the invoice to the effect that he was the purchaser of the car. On the 22nd June 2000, Miss Bretton applied for an insurance policy from Highway Motor Policies. Initially she told the insurance broker that she was the registered owner of the car, but did not say that she owned another car. She also limited the use of the car to herself. She was sent the insurance proposal for her final signature together with a 30 day cover note.

After the accident on the 30th June 2000 she sent off the proposal form but amended her answers. Under the question “Are you the registered owner/keeper of the car?” she crossed out the word “owner” and put “not known”. She also said that she owned two cars – presumably according to Rix LJ her other car and the Rover. Finally she signed a declaration to say that the car described was her property.

The trial judge had found that she was the owner and Rix LJ agreed.  The documentary evidence was consistent only with the car being intended to be her property, or at least her joint property. If she did not have an interest in the car she would not have been able to insure it comprehensively.

Rix LJ then turned to the Monk versus Warbey counterclaim and the case law in this area. A Monk versus Warbey type claim only operated in the circumstances where the victim is the Claimant, suing for death, personal injury or loss arising from damage to his property. Mr Hancock’s counterclaim was measured by reference to his failure to recover a contribution under the Civil Liability (Contribution) Act 1978 rather than as a third party victim.

Section 143 of the Road Traffic Act 1988 referred expressly to insurance in respect of “third party risks.”  The insurance policy requirements set out in section 145(3) are limited to “any liability…..in respect of the death or bodily injury to any person or damage to property.”

A driver was bound to insure in respect of third party loss such as personal injury but he was not obliged to insure against his liability as tortfeasor to contribute to the liability of another tortfeasor.

Consequently Miss Bretton would succeed in her claim against Mr Hancock without any deduction and Mr Hancock’s counterclaim against her would fail.

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