Mcfarlane v Thain 2005

FACTS:-

A pillion passenger on a motorcycle sought damages for multiple injuries (including a head injury) sustained in a road traffic accident from the driver of the motorcycle (“the First Defender”) who was uninsured, and from the driver of the car (“the Second Defender”), with which the motorcycle collided. The Motor Insurers Bureau argued that the pillion passenger (“the Pursuer”) “knew or ought to have known” that the motorcycle was uninsured and therefore under Clause 6(1)(e) of the 1998 MIB Agreement could not recover damages against the First Defendant. The First Defender was said to have been driving too fast, whilst unlicensed and uninsured. The Second Defender was said to have failed to keep a proper look out as he emerged onto the carriageway in an attempt to turn right.

The MIB did not enter a Defence on behalf of the First Defender, who entered no Defence himself. They sought a ruling on the applicability of Clause 6(1)(e), alleging fault on the part of the Second Defender and contributory negligence on the part of the pursuer.

The issue between the parties was whether the case should go to proof or jury trial. The Pursuer argued that the entire case was too complex and difficult for a jury. The MIB were asking the court to allow a “proof before answer” (preliminary issue) restricted to liability, contributory negligence, apportionment and the involvement of the MIB, leaving quantum for a second hearing. The Second Defender argued for a jury trial.

HELD:-

Lady Paton considered the arguments of the parties on the mode of trial. There were a number of issues, liability for the accident and apportionment, whether the Pursuer knew that the car was uninsured, quantification of loss. The Pursuer had a history of violence and abuse of drugs and alcohol.

Lady Paton considered that the involvement of the MIB in these proceedings made the action unsuitable for a jury trial. First of all it would be impossible to avoid bringing up the question of insurance in the jury’s presence. The current well established practice prohibited mention or discussion of a party’s indemnity insurance in the jury’s presence.

Secondly there was an issue as to the construction of Clause 6(1)(e)(ii) of the MIB Agreement – “knew or ought to have known”.

Thirdly the presence of the MIB in the action would make the apportionment of liability too complex for a jury.

Each of the above factors was enough on their own to persuade the judge that the case was too complex for the jury. She agreed that it would be appropriate to make an order along the lines of the MIB’s application for a “divided proof”. Proof on liability would be heard separately from proof on quantum. Proof on liability should include questions of contributory negligence, apportionment of liability, and the involvement of the MIB and the applicability of Clause 6(1) (e) of the MIB Agreement.

Related posts:

1. Young v Highway Insurance Agency Ltd [2004]
2. Akers v Motor Insurers Bureau [2003]
3. Phillips (Administratrix Of The Estate Of Neville Phillips Decesased) v Rafiq (1) And The MIB 2006