O’mahony v Joliffe And The Motor Insurers Bureau [1999]

FACTS:-

The First Defendant was an unemployed man aged 18. The Claimant was a friend of his cousin who came to stay at his house. The First Defendant had purchased a motorcycle for £10 and was repairing it with the Claimant’s assistance. The First Defendant’s mother had warned both the First Defendant and the Claimant not to go out on the motorcycle, as it was not taxed or insured, it had no MOT, was in a bad condition and the First Defendant had no driving licence. However the Claimant had driven the motorcycle herself for short distances under the direction of the First Defendant.

The Claimant and the First Defendant had been out in the evening drinking and as they were in an amorous mood, they planned to “relax” together in the front room. However as the First Defendant’s mother was in the house they decided to ride the motorcycle to a nearby industrial estate. The Claimant was the pillion passenger on the outward trip. Some three hours later, they were returning home (again the Claimant was the pillion passenger) when the First Defendant lost control and crashed. During part of the three hour period prior to their returning home, the Claimant had ridden the motorcycle. As a result of the accident, the Claimant suffered serious injuries.

The Claimant sued the First Defendant and the MIB and succeeded wholly on the issue of liability. The MIB relied upon Clause 6(1) of the 1972 Uninsured Drivers Agreement, which stated:-

“MIB shall not incur any liability under….this Agreement in a case where –

(c) at the time of the accident the person suffering death or bodily injury in respect of the claim is made was allowing himself to be carried in a vehicle and –

(ii) being the owner of or being a person using the vehicle, he was using or causing or permitting the vehicle to be used without there being in force in relation to such use a contract of insurance as would comply with Part VI of the Road Traffic Act 1972, knowing or having reason to believe that no such contract was in force.”

The trial judge found that the Claimant knew that there was no contract of insurance in force. However he also concluded that at the time of the accident, she was not “a person using the vehicle” so the MIB were not exempt from liability.

HELD:-

Lord Justice Simon Brown went over the facts of the case. He referred to two Court of Appeal cases, Stinton v Stinton [1995] RTR 167 and Hatton v Hall 1997 RTR 167 together with three underlying authorities, Brown v Roberts [1965] 1 QB 1, Leathley v Tatton [1980] RTR 21 and B (A minor) v Knight [1981] RTR 136. The central principles in those cases were:-

1. “Using” in Clause 6 of the MIB Agreement bore the same meaning as in the Road Traffic Acts, so that a user was by definition someone required to provide third party cover, and if he failed to do so, was potentially liable both criminally and civilly. “User” must therefore be given a restricted meaning.
2. Plainly not all passengers were users even when they knew that the vehicle was being driven without insurance.
3. There must be present in the putative user some element of controlling, managing or operating the vehicle.
4. That element of control might exist as a result of a joint venture to use the vehicle for a particular purpose or where the passenger procured the making of the journey.
5. Not every such joint venture or procurement however, would involve the element of control or management necessary to constitute the passenger a user.
6. Whether in any given case there was a sufficient element of control or management necessary to constitute the passenger a user was a question of fact and degree for the judge.

Simon Brown LJ looked at the case of Stinton where the Claimant had gone on a pub crawl with two other men, and was so drunk that he allowed the Defendant to drive the car. The court had held that he was using the car throughout the journey. In Hatton v Hall the Claimant rode pillion on the Defendant’s motorcycle but gave the Defendant directions. The court had said that the situation was much more akin to a passenger simply accepting a lift.

Simon Brown LJ then considered the judgement of the court below. The trial judge, having considered the various authorities had said that the difficulty in this case was that it was neither a case of a simple lift nor a case where the Claimant had procured the making of the journey. In the present case, both the Claimant and the Defendant knew that no contract of insurance was in force and that there was no tax or MOT certificate, and that neither was licensed to drive. To that extent they were participating knowingly in an illicit venture. However the facts were not as extreme as those found in Stinton. The Claimant did drive the motorcycle but did so under the eye of the Defendant and only whilst they were at the industrial estate. Control of management of the vehicle could be determined before the vehicle was used, as well as in the course of its use. However the relationship between the Claimant and Defendant was different to that of Stinton where the Claimant and Defendant were brothers.

Therefore in the trial judge’s judgment, the Claimant did not have the element of controlling, managing or operating the Defendant’s motorcycle at the relevant time, to amount to “using” the vehicle for the purposes of Clause 6.

Simon Brown LJ said that this process of reasoning and conclusion was not open to the judge. Of course the Defendant was the “essential decider” of the details of the course taken during the expedition but that was not to say that the Claimant was no more than a passive passenger. This was in the very fullest sense a joint enterprise. It was a jointly conceived plan to combine periods of illicit joy riding with intervals of dalliance between.

Therefore it was unreal and impermissible to hold that a party to such a venture could slip into and out of the status of vehicle user.

It could not be said that the facts of Stinton were more “extreme” than here. The venture upon which this Claimant and Defendant were engaged was undertaken (a) in the face of a series of previous warnings from the Defendant’s mother as to the several breaches of the criminal law that it would involve (b) clandestinely so as to escape the mother’s attention.

Mere fact of knowledge of the uninsured use of the car was not of itself sufficient to constitute the passenger a user, but that consideration would colour the essential nature of “use”.

Simon Brown LJ said that the proper approach to user under Clause 6 of the 1972 Agreement would soon become of historical interest only. The present 1988 Uninsured Drivers Agreement no longer required the MIB to establish user in addition to knowledge of no insurance as a condition of exemption from liability.

Lord Justice Ward agreed with Simon Brown LJ and pointed to four crucial findings of fact in this case (a) the Claimant’s helping to push the motorcycle (b) the Claimant’s having a limited go on the motorcycle (c) the mutual enjoyment of the outing (d) the Defendant had been the essential decider of where he and the Claimant would go.

The fact that the Defendant was the essential decider could not diminish the effect of the Claimant’s active participation in the enterprise.

Lord Justice Walker also agreed that the appeal should be allowed. The MIB would be granted a declaration that they were not liable.

Related posts:

1. Sloan v Motor Insurers’ Bureau [2009]
2. Stinton v Stinton; Sub Nom. Stinton v Motor Insurers Bureau [1995]
3. Pickett v Motor Insurers Bureau [2004]
4. Hatton v Hall and Another [1996]
5. Akers v Motor Insurers Bureau [2003]