Phillips (Administratrix Of The Estate Of Neville Phillips Decesased) v Rafiq (1) And The MIB 2006
- Reported: APIL PI Focus Vol 16 Issue 4.
- Year: 2006
FACTS:-
The Claimant was widowed when her husband died from injuries sustained in a road traffic accident in August 2002. He had been travelling as a passenger in his own car, which was being driven by the First Defendant. The First Defendant had insurance on his own vehicle but was not covered to drive the Claimant’s husband’s car. The widow claimed damages under the Law Reform (Miscellaneous Provisions) Act 1938 and the Fatal Accidents Act 1976 against Rafiq. The MIB was joined as Second Defendant under the Uninsured Drivers Agreement 1999.
The MIB argued that it was not liable to pay because the Claimant’s husband had known that the car was being driven by the Uninsured Drivers Agreement 1999. He therefore fell within the exclusion under Clause 6(1)(e) of the Agreement. They relied on a first instance county court decision S (A Child) v Goldstraw April 22, 2005 Judge Tetlow in Oldham County Court CL December [2005] 286.
The Defendant also argued that the Claimant should not be allowed to recover because the Claimant’s husband would have had no entitlement to compensation from the MIB under the Fatal Accidents Act 1976.
HELD:-
His Honour Judge Seymour QC sitting as a deputy High Court Judge ruled that the words of the exclusion under Clause 6 had a clear meaning. Clause 6(1)(e) of the 1999 Uninsured Drivers Agreement states the MIB is not liable to pay:-
“(e) a claim which is made in respect of a relevant liability described in paragraph (2) by a claimant who, at the time of the use giving rise to the relevant liability was allowing himself to be carried in the vehicle and………..knew or ought to have known that-
………(ii) the vehicle was being used without there being in force in relation to its use such a contract of insurance as would comply with Part VI of the 1988 Act.”
Clause 6(1)(e) of the 1988 Uninsured Drivers Agreement stated the MIB was not liable to pay in a case where:-
“at the time of the use which gave rise to the liability the person suffering death or bodily injury or damage to property was allowing himself to be carried in or upon the vehicle and either before the commencement of his journey in the vehicle or after such commencement if he could reasonably be expected to have alighted from the vehicle he – (i) knew or ought to have know that the vehicle had been stolen or unlawfully taken….”
Clause 6(1)(e) of the 1999 Agreement only applied to a “claimant” who was a passenger in the car, and this could not apply to the Claimant because she was not a passenger and she did not have the relevant knowledge that there was no insurance.
Different wording had been used in the former 1988 Uninsured Drivers Agreement, and that showed that it was intended to have a different effect.
Furthermore the Claimant’s claim was not derivative. The Fatal Accidents Act 1976 only dealt with the claimant’s rights to obtain judgement not the right to obtain satisfaction from the MIB. The question was whether the Claimant herself was excluded even though her husband had knowledge that there was no insurance. Consequently a declaration would be granted to the effect that the MIB would be liable to satisfy any judgment obtained against the First Defendant.
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