Cooper v Motor Insurers Bureau 1985
- Reported: [1985] Q.B. 575; [1985] 2 W.L.R. 248
- Year: 1985
- Court: Court of Appeal
FACTS:-
On 9 January 1973 Mr Killacky (K) asked the now deceased Claimant, Mr Cooper, to road test his motor cycle. During the course of the test the brakes failed and the Claimant collided with a motor car on the highway. The Claimant was seriously injured. He sued K in negligence and on 5 December 1980 the Claimant recovered judgement against him in the sum, including interest, of £214,207. K was unable to satisfy the judgement. Furthermore, he was not insured against third party risks as required by section 143 (1) of the Road Traffic Act 1972. The Claimant bought an action against the Motor Insurer’s Bureau seeking a declaration that by virtue of the bureau’s undertaking given to the secretary of state to compensate victims of uninsured drivers the bureau was liable to satisfy the judgement since it was a judgement in respect of a liability required to be covered by insurance, within the undertaking, because insurance against third party risks were required by section 145(3) of the 1972 Act to cover injury to “any person …arising out of the use of a vehicle on a road, which, it was contended, included a person who was permitted to use the vehicle and who was injured whilst using it.
The judge dismissed the Claimant’s action, holding (i) that the term “any person” in section 145 (3) of the Act was restricted to any person other than the user of the vehicle at the time the damage was caused, and the Claimant, being the user of the vehicle at the material time, was not covered by that term, and (ii) that the only liability which fell to be covered by section 145 (3) and section 143 (1) was liability to persons injured by the use of the vehicle by the insured or a permitted driver.
The Claimant appeals this decision in the Court of Appeal before Cumming-Bruce, Dillion LJJ and Ewbank J
HELD:-
The Claimant appealed on two grounds. Firstly, that the Learned Deputy Judge erred in holding that the words “any person” in section 145 (3) of the Road Traffic Act 1972… are restricted to any person other than the user of the vehicle at the material time, and that the Claimant who was the user of the vehicle at the material was not covered by the term ”any person”. Secondly that the Judge erred in holding that the only liability covered by section 143 (1) was the Claimant’s liability to others.
The real issue in the case was as to construction, and this was the main focus of Cumming- Bruce LJ judgement.
Attention was drawn, by Counsel for the Claimant, to section 145 of the 1972 Act which sets out what an insured has to do in order to comply with the requirements of Part VI of the Act. Subsection 2 states;
“(2) The policy must be issued by an authorised insurer, that is to say, a person or body of persons carrying on a motor vehicle insurance business in Great Britain
(3) Subject to subsection (4) the policy —
(a) must insure such person, persons or classes of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by, or arising out of, the use of the vehicle on a road…
On a consideration of section 145 (3) (a) the policy will satisfy the requirements of the Act provided that it insures a person, persons or class of persons specified in the policy in respect of liability that may be incurred by him or them in respect of damage to any person caused or arising out of the use of the vehicle on the road. The Claimant was driving the motor vehicle on a road, during which the brakes failed by reason of a defect in the braking system of which he knew nothing and which was the responsibility and liability of Mr K, the owner of the vehicle. Therefore all the necessary requirements of section 145 (3) (a) are fulfilled and Mr Cooper can claim to be, and is, “any person suffering damage caused by or arising out of the use of the vehicle on the road”
Cumming- Bruce LJ stated had there been a complete statement of the relevant context of section 145 (3) (a) that would have been the end of the story however there had not been. Consequently the deputy judge was right in deciding that the correct approach was to consider the first section in Part VI namely section 143. Section 143 reads;
“(1) … it shall not be lawful for a person to use, or to caused or permit any other person to use, a motor vehicle on a road unless there is in force in relation to the use of the vehicle by that person or that other person such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this part of this act and if a person acts in contravention of this section he shall be guilty of an offence…”
Having regard to the content of the subsection, it is clear that that obligation on the insured is to take out a policy covering him in respect of third party risks which, whatever ambiguity the phrase may have, clearly does not include the actual driver of the vehicle at the time of the use of the vehicle which gives rise to the damages. When one comes to construction of section 145 (3) it is necessary to give a meaning to that subsection which had regard to the intention of section 143 (1) in relation to the obligation which Part VI of the Act imposes. As the judge found, although taken by itself the words of section 145 (3) in the reference to “any person” are unrestricted in any respect, as soon as section 143 and the obligation therein imposed is considered, it necessarily follows that there must be an intention to restrict the scope of the phrase “any person” in section 145 (3) (a) so as to exclude the driver of the vehicle at the time of the imagined risk.
Cumming- Bruce LJ concluded by dismissing the doctrine of forbearance and by stating he had nothing to add to the deputy judge’s judgement. He therefore dismissed the appeal and found in favour of the Defendants.
Both Dillion LJ and Ewbank J agreed.
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