Akers v MIB
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE KEENE,MR JUSTICE JACOB |
| Judgment Date | 14 January 2003 |
| Neutral Citation | [2003] EWCA Civ 18 |
| Docket Number | B3/2002/0604 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 January 2003 |
[2003] EWCA Civ 18
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM GUILDFORD COUNTY COURT
(HIS HONOUR JUDGE BISHOP)
Lord Justice Peter Gibson
Lord Justice Keene
Mr Justice Jacob
B3/2002/0604
MR D PEARCE-HIGGINS QC (instructed by Weightmans, India Buildings, Water Street, Liverpool, L2 0GA) appeared on behalf of the Appellants
MR LEVISSEUR (instructed by Messrs Websters, Cameo House, Bear Street, London WC2) appeared on behalf of the Respondents
Tuesday, 14th _ January 2003
I will ask Keene LJ to give the first judgment.
This is an appeal by the Motor Insurers' Bureau ("MIB"), one of the two defendants in the court below, from the decision of His Honour Judge Bishop at Guildford County Court on 8th March 2002. The claimants were relatives of a young man, Graham Akers, who was killed in a traffic accident on the A228 in Kent on 14th June 1997. Graham Akers was sixteen and three-quarters years old at the time and he was one of a number of passengers in a Toyota car being driven by Roy Thorne, who was the other defendant. Roy Thorne drove at high speed, lost control of the vehicle and hit an embankment, causing the car to turn over and end up in a field. He was subsequently convicted of causing death by dangerous driving. He was 19 at the time. The car was one which he was in the course of buying from a friend, but neither it nor he were insured. Consequently, the MIB was joined as the second defendant in the civil proceedings. Mr Thorne did not actively defend the proceedings, but the MIB did, both generally and in respect of their own liability. Mr Thorne appeared in person at the trial.
There was no dispute as to his negligence, but there were issues raised as to contributory negligence by the deceased, as to which the judge ultimately held that there had been contributory negligence, both in not wearing a seat-belt and in accepting a lift from somebody whom he knew had been drinking and had taken cannabis. This appeal is not concerned with those findings of contributory negligence.
The issue on this appeal arises because the MIB took the point that, whatever the liability of Mr Thorne, the MIB was not liable under the terms of its Agreement with the relevant Secretary of State, that being the Agreement dated 21st December 1988. As is well known, under that Agreement the MIB accepts an obligation to satisfy a judgment obtained in respect of a liability which is the subject of a compulsory insurance obligation under the Road Traffic Acts when such judgment remains unsatisfied. Typically the MIB's obligation arises where the driver primarily liable is uninsured or cannot be traced.
However, the MIB's obligation is subject to certain exceptions. One of those is to be found in clause 6(1)(e) of the 1988 Agreement. The relevant part of clause 6(1), insofar as material for the present appeal, reads as follows:
"6(1) The 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 … 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) …
(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 IV of the Road Traffic Act 1972."
The effect of that provision is that the MIB's obligation does not apply where the person killed or injured "knew or ought to have known" that the vehicle was uninsured. The phrase "knew or ought to have known" has been the subject of recent consideration by the House of Lords in White v White & the MIB [2001] UKHL, [2001] 1 WLR 481, where the origins of the MIB are described in the judgment of Lord Nicholls of Birkenhead at paragraphs 4 to 7. Their Lordships emphasised that the purpose of the 1988 Agreement was to give effect to the terms of the second EEC Motor Insurance Directive 84/5/EEC, which simply allows for an exception where the injured passenger "knew" that the vehicle was uninsured. Consequently, the phrase "knew or ought to have known" is to be given the same meaning as "knew" in the directive: see Lord Nicholls at paragraph 23. Moreover, as an exception to a general obligation, this phrase is to be given a narrow interpretation. A mere failure to make enquiries as to insurance, however negligent in the circumstances, is not enough by itself to bring the exception into play. It certainly will apply, however, either if the passenger had actual knowledge of the lack of insurance, or if he had information from which he realised that the driver might well not be insured but he deliberately refrained from asking questions lest his suspicions be confirmed. This was described by Lord Nicholls as a deliberate closing of the mind, with the passenger preferring not to know. It follows that it is not enough for the MIB to show that the passenger failed to make the enquiries which a reasonable person would have made in the circumstances. More than that is required.
In the present case, the relevant evidence came from two other young men, who had been passengers in the car, and from the driver, Roy Thorne. Mr Thorne and one of the passengers, Mr Aaron Goldfinch, gave oral evidence at the trial. The other passenger, Michael Cameron, had made a written witness statement which was admitted under the provisions of the Civil Evidence Act. The judge reviewed the evidence in an ex tempore judgment and concluded that, although there was "a great deal of evidence" pointing in the direction of Mr Akers having known that Mr Thorne was not insured, he could not be satisfied on the balance of probabilities that Mr Akers did know. He therefore found that the MIB was liable.
The judge did not in his judgment deal with whether Mr Akers ought to have known about the lack of insurance; and leading counsel for the MIB raised this with him immediately the judgment had been concluded without, one is bound to say, getting any very clear response. When the application for permission to appeal to this court came before Hale LJ, she invited the judge to provide additional reasons for his decision in accordance with the procedure recommended in English v Emery Reimbold & Strick Limited. He has helpfully done so in writing, emphasising that he had doubt as to whether Mr Akers had heard any statement that Mr Thorne was not insured. The judge has also stated that he had not been satisfied that Mr Akers, a sixteen year-old without driving experience, had been put on inquiry as to the question of insurance.
The judge's conclusions have come under criticism from Mr Pearce-Higgins QC for the MIB. He submits that the judge did not make any clear findings of fact in his judgment, he points out that none of the evidence seems to have been rejected by the judge as having been dishonestly given and he emphasises that this court has the witness...
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