Limbrick v French and Farley [1990]

FACTS:

The Claimant was injured in a road accident whilst a passenger in her own car. At the time the car was being driven by the first Defendant, the Claimant’s boyfriend, with her permission. There was no dispute that the accident was caused by his negligence. At the time of driving he had consumed alcohol in excess of the prescribed limit and was uninsured.

The Claimant’s own motor insurance was with insurers at Lloyds, of whom the second Defendant was leading underwriter. That insurance provided cover only for the Claimant and her mother as drivers of the car. The first Defendant was unemployed and apparently impecunious and the Claimant therefore brought the Motor Insurers’ Bureau (“the M.I.B.” ) into the proceedings. The M.I.B. nominated the insurers represented by the first Defendant as insurers concerned under the M.I.B.’s Uninsured Driver Agreement (“the Agreement”). It was in that capacity alone, and not as the Claimant’s own insurer, that the second Defendant was joined in the proceedings.

Both Defendants alleged contributory negligence against the Claimant on the ground that she allowed herself to be driven by the first Defendant when she knew he was unfit to drive through drink. Further, the second Defendant, on behalf of the M.I.B., contended for two further defences to the Claimant’s claim. First, it was alleged that the Claimant’s claim against the first Defendant was not in respect of a “relevant liability” under clause 1 of the Agreement on the ground that there was no obligation upon the Claimant under her insurance policy to indemnify the first Defendant against injury to herself, the owner of the car. Secondly, it was claimed that the M.I.B. were entitled to recover from the Claimant under clause 4 of the Agreement any sum payable by them to the Claimant under clause 2, by reason of provisions contained in a clause of the Claimant’s policy with the second Defendant which preserved her right to recover sums in respect of third-party liabilities. (It was also originally contended in argument that the Claimant had permitted the first Defendant to use the vehicle without insurance, and that, under clause 6 of the Agreement their liability was therefore exempted. It was conceded by the second Defendant that this allegation could not be sustained upon the evidence.)

HELD:

Simon Brown J held giving judgment for the Claimant. 

(1) Whilst there was authority for the proposition that a passenger could be guilty of contributory negligence, if he or she knows the driver to have consumed alcohol in such quantity as to impair to a dangerous degree his capacity to drive safely, the burden of proof of such knowledge was upon the Defendants. On the evidence, the Defendants had failed to discharge that burden.

(2) On the question of “relevant liability,” the first Defendant was uninsured in respect of personal injury to his passenger, contrary to Part 6 of the Road Traffic Act 1972. It was in respect of that liability that the M.I.B.’s obligation under the Agreement arose. It was irrelevant

(a) that the Claimant was the owner of the car;

(b) that there was a policy of insurance held by the Claimant;

(c) that the Claimant was not obliged to indemnify herself against liability for injury to herself; and

(d) that the first Defendant was outside the categories of permitted drivers. The second Defendant was involved in the proceedings not as the Claimant’s insurer, but under the Agreement as insurer concerned, to meet the liability of the M.I.B. in respect of the first Defendant. Cooper v. The Motor Insurers’ Bureau [1985] 1 Q.B. 575 distinguished.

(3) The provisions of clause 4 and the condition of the Claimant’s policy which preserved her right to recover sums in respect of third-party liabilities were designed to allow an insurer who was required to meet a claim under the Agreement to seek indemnity under the policy against a policy-holder who had acted in such a way as to allow cover under the policy to be repudiated (for example, allowing the vehicle to be used in a defective condition) and thereby contributed to a third party’s injuries. The insurer concerned would be obliged in such circumstances to meet the third party’s claim, but could recover from the policy-holder under these provisions.

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