November, 30, 2016

In the decision of Sahin v Havard and Riverstone Insurance (UK) Limited the Court of Appeal has today rejected the claimant’s argument that a Monk v Warbey liability was one required to be covered by Part VI of the Road Traffic Act 1988.

Background

In this case the claimant’s vehicle had been damaged by an unidentified driver. The claimant’s claim included a claim for over £100,000 of credit hire charges. The offending vehicle was identified – it belonged to a credit hire company and had been hired out to the first defendant, Ms Havard. She had then lent the vehicle to an unidentified driver and declined to provide that driver’s details. Whoever had been driving the vehicle was not insured by the insurers as the credit hire company had only permitted Ms Havard to drive.

In such circumstances, there was no doubt that Ms Havard was liable to the claimant for breach of statutory duty in that she had, contrary to section 143 of the Road Traffic Act 1988 (“the RTA”) caused or permitted the vehicle to be driven without insurance – such a liability having been confirmed by the decision in Monk v Warbey [1935] 1 KB 75.

However the claimant clearly was looking to be able to enforce any judgment against the insurer of the vehicle. They therefore sought to argue that Ms Havard’s actions in causing or permitting the vehicle to be driven uninsured was a liability required to be covered by section 145 of the RTA (which requires insurance “in respect of the death of or bodily injury to any person or damage to property caused by, or arising out of, the use of the vehicle on a road or other public place in Great Britain”), and that such a liability was also one which insurers were required to satisfy pursuant to section 151 of the RTA.

At first instance HHJ Baucher rejected the claimant’s arguments.  Between that first instance decision and the Court of Appeal hearing, in a most confusing judgment, HHJ Tindal found, in the case of Allen v Mohammed and Allianz Insurance Birmingham CC, 9 September 2016 (and reported on Lawtel) that a Monk v Warbey liability was required to be covered by section 151 of the RTA. Had that decision been correct, the scope of the RTA would have been significantly widened.

Appeal Ruling

The Court of Appeal’s judgment handed down on 30 November 2016 in Sahin v Havard upheld the first instance decision of HHJ Baucher. Longmore LJ, giving the unanimous judgment of the court, confirmed that a Monk v Warbey liability:

1. did not arise out of ‘use’ of the vehicle by Ms Havard;
2. was not required to be covered by section 145 of the RTA; and
3. any judgment arising out of such a liability on the part Ms Havard was not one which insurers were required to satisfy pursuant to section 151 of the RTA.

Whilst the Court of Appeal was referred to Allen v Mohammed in submissions, it is clear that the court considered the judgment to be entirely misconceived – it did not merit even a passing comment from Longmore LJ.

Commentary

The decision confirms the importance, ordinarily, of a victim of a road traffic collision, not only identifying the offending vehicle, but also a responsible individual.  Where claimants are unable to identify a driver or someone with vicarious liability, then recourse will invariably have to be the MIB pursuant to the Untraced Drivers’ Agreement 2003. Accordingly, the importance of identifying the tortfeasor, not just the offending vehicle cannot be under-estimated.

There are those who argue that the requirement for a negligent party to be identified in order for there to be an RTA liability (or indeed a liability under the European Communities (Rights against Insurers) Regulations 2002) runs contrary to EU law (for instance it was a subsidiary complaint raised in RoadPeace’s judicial review proceedings against the Secretary of State for Transport following the introduction of the Uninsured Drivers’ Agreement 2015).

However the Court Of Appeal took the opportunity to reaffirm that the UK system (which consists of the RTA coupled with the MIB Uninsured and Untraced Drivers’ Agreements) “satisfied both the aim and spirit of the Directive”.

Publication Authors:

• Andrew Baker