Pickett v Motor Insurers Bureau [2004]

FACTS:-

The Claimant suffered personal injury damages on the 12th July 1999 when a passenger in motor vehicle driven by Mr Roberts, her boyfriend. She had purchased a car but could not afford the insurance. She knew that Mr Roberts had no driving licence, but she had set off for a drive with him with her dog.

They drove up an old track on a mountainside. Mr Roberts began to do handbrake turns, and so the Claimant and her dog asked Mr Roberts to stop so that they could get out of the car, which he did. However she and the dog then got back in, and Mr Robert continued to do handbrake turns. By this time, the Claimant was very scared and asked Mr Roberts to stop. The car slowed and the Claimant unclipped her seat belt but suddenly it accelerated again, and this time Mr Roberts lost control. The car went into a gravel ditch and overturned. The Claimant suffered a fracture of the spine, which rendered her paraplegic.

The Claimant accepted a 15 per cent discount was appropriate on the basis o her own contributory negligence, in that she was not secured by a seat belt at the time the accident occurred.

The Claimant sued Mr Roberts, the First Defendant (who took no part in the trial and gave no evidence). The MIB was added in as Second Defendant on the 18th January 2002.

HELD:-

Lord Justice Chadwick looked at Clause 2.1 of the 1988 Uninsured Drivers Agreement (“the 1988 Agreement”). This stated:-

“If judgment in respect of any relevant liability is obtained against any person….and any such judgment is not satisfied in full within seven days……then MIB will, subject to the provisions of paragraphs (2), (3) and (4) below and to clauses 4,5 and 6 hereof, pay or satisfy…..any sum payable…..in respect of the relevant liability….whatever may be the cause of the failure of the judgment debtor to satisfy the judgment.”

A “relevant liability” was a liability in respect of which a policy of insurance must insure a person in order to comply with Part VI of the Road Traffic Act 1972 as amended by the Motor Vehicle (Compulsory Insurance) Regulations (SI 1987/2171). Section 143(1) of that Act stated:-

“Subject to the provisions of this Part of this Act, it shall not be lawful for a person to use or to cause or permit any other person to sue, 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, as the case may be, such a policy of insurance….in respect of third party risks as complies with the requirements of this Part of this Act.”

Section 145(3)(a) of the 1972 Road Traffic Act 1972 stated that the motor insurance policy –

“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 or bodily injury to any person caused by, or arising out of, the use of the vehicle on a road.”

It was held in Cooper v Motor Insurers Bureau [1985] QB 575 that section 145(3)(a) did not impose upon the owner of the vehicle an obligation to have in force a policy of insurance in respect of his liability to the person who was the driver of the vehicle at the time of the use of the vehicle that gave rise to that liability. The driver was not a “third party” vis a vis the owner of the vehicle. In Cooper it was held that the driver of the vehicle who did not know that there was no insurance on the car, could not set up a claim against the owner on the grounds that the car was in a defective condition.

Lord Justice Chadwick said that this point had not been taken as against the Claimant, and therefore it was unnecessary to decide whether it applied in this case. He then turned to Clause 6(1)(e) of the 1988 Uninsured Drivers Agreement, which stated:-

“6.1 MIB shall not incur any liability under Clause 2 of this Agreement in a case where:

(e) 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 known that the vehicle had been stolen or unlawfully taken, or
(ii)    knew or ought to have known that 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 Road Traffic Act 1972.”

It was agreed between the parties that the Claimant did know that there was no insurance on the vehicle. The issue was whether at the time of the use which gave rise to Mr Roberts’ liability, the Claimant was allowing herself to be carried in the vehicle which he was driving.

In this case, the Claimant had consented to the car journey as a whole, but just before the accident happened she had been trying to leave the car. Therefore although she knew that there was no insurance, at that precise moment she was not voluntarily in the car. There was an apparent distinction in the language of Clause 6(1)(e) as to the point in time relevant to each condition.

Chadwick LJ referred to the case of White v White and the MIB [2001] UKHL 9, where the issue for the court was whether the phrase “knew or ought to have known” in Clause 6(1)(e) of the 1988 Uninsured Drivers Agreement was apt to include knowledge which the injured person would have acquired if he had made reasonable inquiries. The House of Lords by a majority had held that it did not include that definition of knowledge. Lord Nicholls had said that according to the European Court of Justice, the exceptions were to be construed strictly. In particular he had said at paragraph 14 the need for the passenger to have entered the vehicle voluntarily serves to confirm that the exception is aimed at persons consciously colluding in the use of an uninsured vehicle. Chadwick LJ said that this was such a case. He found it impossible to identify any reason in principle why the point of time at which the two conditions – consent and knowledge – fell to be satisfied, should differ. The apparent distinction was no more that a reflection of the difference, in practice between the circumstances in which consent might be given or withdrawn and the circumstances in which knowledge is acquired or lost.

It would be difficult to conceive of circumstances where knowledge of no insurance, acquired at the start of that journey, was lost during the journey. There was a presumption in Clause 6(1)(e) that, once acquired, knowledge that the vehicle was uninsured persists throughout the journey. However there was no presumption that consent, once given, cannot be withdrawn. That withdrawal of consent depended on the facts.

Chadwick LJ said that it would not be correct for a court to say that once a person entered the vehicle voluntarily, he was allowing himself to be carried in the vehicle for the purposes of Clause 6(1)(e). However, a person who did voluntarily enter a vehicle, did not withdraw consent to be carried by voicing an objection to the manner in which the vehicle was driven. The protest had to amount to an unequivocal repudiation of the common venture to which consent was given when the protestor entered the vehicle. Therefore an express request to the drive to stop the vehicle would not be sufficient to withdraw consent to be carried. However an unequivocal request to allow the protestor to alight from the vehicle and to stop the car for that purpose, might be insufficient to withdraw consent.  Thereafter save for the limited purpose of enabling the driver to comply with that request, that protestor cannot be said to be allowing himself to be carried in the vehicle for the purposes of Clause 6(1)(e).

In the instant case, there was nothing in the Claimant’s statement that provided support for an unequivocal request that the car be stopped so that she could get out as distinct from a request that Mr Roberts stop executing handbrake turns. Although the Claimant would have alighted from the vehicle, she was not repudiating the common venture on which she and Mr Roberts had embarked when they left home. Consequently she could not recover from the Motor Insurers Bureau.

Lord Justice May considered the terms of Clause 6(1)(e) of the Uninsured Drivers Agreement 1988 and the Second EEC Motor Insurance Directive (84/5/EEC). The trial judge had taken the definition in the Motor Insurance Directive, which gave a consonant construction to the meaning of “voluntarily”. May LJ said that this was wrong. Clause 6(1)(e) actually went wider than the Directive, but it was the definition in the MIB Agreement that should be used. There was no intrinsic reason why a Member State should not put in place provisions to comply with the Motor Insurance Directive, that were in fact more generous than those in the Directive itself.

Clause 6(1)(e) of the Agreement was to be construed so that if a person is voluntarily travelling in a vehicle which he knows to be uninsured, there may be circumstances in which he withdraws his consent to being carried in the vehicle and demands to be let out of the vehicle. Circumstances in which this will arise would necessarily be very rare.

May LJ considered the evidence. The question for the court was whether the court should conclude from the evidence that the Claimant withdrew her consent to being driven in her own vehicle with sufficient clarity and determination so that, at the time of the accident, she was not allowing herself to be carried in the vehicle. In this case the Claimant had not demanded to be let out of the car so as to dissociate herself from its use.

Lord Justice Pill dissented. He accepted that the background to the case was unhelpful to the Claimant’s case and he agreed with the conclusions of Chadwick LJ on the proper construction of Clause 6(1)(e) of the 1988 Uninsured Drivers Agreement. He also agreed with Chadwick LJ on the definition of consent and how consent can be withdrawn.

However on the evidence, Pill LJ said that Ms. Pickett had made sufficiently clear her objection to the specific use. She was not merely objecting to a bad piece of driving, such as a dangerous overtake but had withdrawn her consent to the use to which the vehicle was being put. The concept of common venture as defined by Chadwick LJ and applied to the facts of this case had insufficient regard to the need to identify the use at the time of the accident.

The distinction was too subtle. As to whether, and on what terms, she might have got back in, would depend on the evidence and was not explored before the trial judge.

Related posts:

1. Byrne (A Minor) v The Motor Insurers Bureau And The Secretary Of State For Transport [2007]
2. O’mahony v Joliffe And The Motor Insurers Bureau [1999]
3. Evans v The Secretary Of State For The Environment, Transport And The Regions And The Motor Insurers Bureau [2001]
4. Stinton v Stinton; Sub Nom. Stinton v Motor Insurers Bureau [1995]
5. Akers v Motor Insurers Bureau [2003]