Dale Mcfarlane (ap) V. Barry Thain+james Campbell+the Motor Insurers' Bureau
| Jurisdiction | Scotland |
| Judge | Lady Paton |
| Neutral Citation | [2005] CSOH 22 |
| Date | 09 February 2005 |
| Court | Court of Session |
| Published date | 09 February 2005 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 22 | |
|
| OPINION OF LADY PATON in the cause DALE McFARLANE (AP) Pursuer; against (FIRST) BARRY THAIN and (SECOND) JAMES CAMPBELL Defenders; and THE MOTOR INSURERS' BUREAU Minuters: ________________ |
Pursuer: Clancy, Q.C., Gardiner, Advocate; Drummond Miller, W.S.
First defender: No appearance
Second Defender: F. Lake, Advocate; H.B.M. Sayers
Minuters: R.W. Dunlop, Advocate; Simpson & Marwick, W.S.
9 February 2005
Proof or jury trial: involvement of Motor Insurers' Bureau
[1]On 17 July 1999 the pursuer was badly injured. He was a pillion passenger on a motor-cycle driven by the first defender, which collided with a car driven by the second defender. The pursuer seeks damages from both defenders. As the first defender was uninsured, the Motor Insurers' Bureau (MIB) became involved.
[2]The first defender is said to have been driving too fast, while unlicensed, uninsured, and under the influence of drink. The second defender is said to have failed to keep a proper look-out as he emerged onto the carriageway in an attempt to turn right.
[3]The MIB carried out investigations. Their researches suggested that the pursuer accepted a lift knowing that the first defender was unlicensed, uninsured, and under the influence of drink.
[4]Clause 6(1)(e) of the Motor Insurers' Bureau (Compensation of Victims of Uninsured Drivers) Agreement 1988 between the Secretary of State for Transport and the MIB provides:
"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 ...
(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".
[5]The MIB seek a ruling on the applicability of that exception. They have not therefore followed their normal practice of obtaining the first defender's signature to a "consent and indemnity" form and thereafter directing his defence without their having to enter appearance. Instead the MIB have sisted themselves as party minuters. They have lodged answers focusing on Clause 6(1)(e), and alleging fault on the part of the second defender and contributory negligence on the part of the pursuer.
[6]The second defender has entered appearance and lodged defences. The first defender has not.
[7]On 2 December 2004, the pursuer, second defender and MIB debated whether the case should go to proof or jury trial. Unusually, counsel for the pursuer agreed with counsel for the MIB that special cause existed such that the case should not go to jury trial. However counsel for the second defender disagreed and argued that issues should be allowed.
[8]Counsel for the MIB also contended that proof on liability should be heard separately from proof on quantum in terms of rule of court 36.1.
Submissions on behalf of the pursuer
[9]Senior counsel for the pursuer submitted that the case was too complex and difficult for a jury, for several reasons:
[10]Multiplicity of parties and disputes: The jury would have to consider the following matters: (i) Whether the first defender was at fault. (ii) Whether the second defender was at fault. The second defender had been in a difficult position emerging from a side road across a carriageway while turning right. His vision had been obscured by a parked car. The question of fault on his part would raise difficult issues. (iii) Whether there was any contributory negligence on the part of the pursuer. The MIB alleged three aspects of contributory negligence: the pursuer should not have accepted a lift knowing that the driver was uninsured; he should not have accepted a lift knowing that the driver was intoxicated; and thirdly (a contention adopted by the second defender) the pursuer failed to fasten the straps of his helmet, resulting in his head being unprotected during the accident. The question of contributory negligence therefore raised difficult issues.
[11](iv) The jury would also have to deal with the concept of joint and several liability. (v) The jury might have to deal with apportionment of liability between defenders. (vi) Quantification of damages would not be straightforward. The pursuer suffered multiple injuries, including a head injury. He had almost completed an apprenticeship as a roof tiler, but was unemployed at the date of the accident. There was thus no clear employment history to assist in calculating loss of earnings. Moreover the picture was complicated by the MIB's answers, which averred that the pursuer had a history of fighting, drug and alcohol abuse, and trouble with the law. The jury would be faced with complex evidence and a series of difficult decisions.
[12]Senior counsel submitted that those six features, taken together, gave rise to a significant risk that the jury would be confused by the evidence, or would fail to follow directions which were bound to be fairly complex. Standing that risk, the case was too complex and difficult for a jury.
[13]Involvement of the MIB: The MIB sought to avoid liability in terms of clause 6(1)(e) of the Agreement. That clause contained the concept "knew or ought to have known". In White v White [2001] 1 W.L.R. 481, the majority of their Lordships in the House of Lords ruled that the concept did not include negligence. Lord Nicholls in paragraph 24 expressly reserved his view as to the true scope of the concept. Accordingly the "knew or ought to have known" test in the MIB Agreement was intrinsically complex and subtle. The jury would have to understand the proper context in which they should apply the test (i.e. if they concluded that the first defender was negligent). They would have to determine the pursuer's actual state of knowledge about insurance at the relevant time. Having arrived at a conclusion on the facts, they would have to apply the "knew or ought to have known" test, discriminating between actual knowledge, wilful disregard of suspicion, and mere carelessness or thoughtlessness. Consideration of clause 6(1)(e) in itself rendered the cause too complex and difficult for a jury. Furthermore, Lord Nicholls' reservation in paragraph 24 of White resulted in a material degree of uncertainty about the law on the topic. Standing that reservation, the trial judge would not be able to give precise directions about the concept "knew or ought to have known". As the jury could not be asked for the reasons underlying their verdict, the present case could not lead to a referral to the European Court of Justice or to any other court for clarification of the test to be applied. Decisions subsequent to White, such as Akers v Motor Insurers' Bureau [2003] EWCA Civ 18 and Mair v Payne, 2004 S.L.T. 787, did not assist in that they did not discuss the scope or definition of the concept "knew or ought to have known".
[14]So far as counsel was aware, there was no Scottish case discussing the involvement of the MIB as a factor which might, or might not, amount to special cause preventing a case going to a jury. The case of Winchester v Ramsay, 1966 S.C. 41 concerned third party procedure, but might be regarded as analogous. Reference was made to the obiter dicta of Lord Kissen at page 46.
[15]Shifting onus: Counsel pointed out that in the course of evidence the onus of proof might shift from the pursuer to the MIB, in that the onus of proving the application of the exception in clause 6(1)(e) would fall on the MIB. The trial judge would have to give careful directions. Reference was made to Crawford v Peter McAinsh Limited, 1962 S.L.T. (Notes) 26.
[16]Insurance: It was a well-recognised rule that any question of indemnity insurance should not be discussed in the presence of the jury: Stewart v Duncan, 1921 S.C. 482. However in the present case, where the MIB were sisted as minuters and the question of one party's insurance was to be explored in evidence, it was inevitable that the question of indemnity insurance would play a major part in proceedings.
[17]For all those reasons, senior counsel for the pursuer invited the court to hold that there was special cause precluding a jury trial.
Submissions on behalf of the MIB (minuters)
[18]Counsel for the MIB adopted the pursuer's arguments and invited the court to sustain the MIB's second plea-in-law (added by amendment on 25 June 2004), and to allow a proof before answer restricted meantime to liability, contributory negligence, apportionment, and the involvement of the MIB, leaving quantum for a second diet.
[19]Liability: Counsel argued that there were complexities relating to onus. The pursuer had to...
To continue reading
Request your trial