Gardner v Moore
| Jurisdiction | England & Wales |
| Judge | Lord Hailsham of St. Marylebone,Lord Chancellor,Lord Diplock,Lord Keith of Kinkel,Lord Brandon of Oakbrook,Lord Templeman |
| Judgment Date | 05 April 1984 |
| Court | House of Lords |
[1984] UKHL J0405-1
Lord Chancellor
Lord Diplock
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Templeman
House of Lords
Lord Hailsham of St. Marylebone ( Lord Chancellor)
My Lords,
Judgment appealed from.
This is an appeal by the Motor Insurers' Bureau (second defendants) using the so-called "leap frogging" procedure from a judgment of the Hon. Mr. Justice Caulfield given on 28th July 1983 whereby it was adjudged that the first defendant should pay to the plaintiff £15,526.35 damages and interest and the costs of the action and that judgment should be entered against the second defendants for a declaration to the effect that the second defendants are liable to indemnify the plaintiff in respect of the judgment against the first defendant.
The facts and course of proceedings.
The proceedings arise from the personal injuries which the plaintiff sustained on 22nd March 1981 as the result of being run down by a motor vehicle driven by the first defendant. From first to last the first defendant has played no part in the proceedings and has never disputed his liability to the plaintiff. No question arises as to the quantum of damages.
The injuries sustained by the plaintiff were caused by the intentionally criminal act of the first defendant who deliberately drove his vehicle on to the pavement where the plaintiff was walking and intentionally ran him down. There is no dispute about this. On 24th July 1981 at the Liverpool Crown Court the first defendant pleaded guilty to a charge under section 18 of the Offences Against the Person Act 1861 of wounding the plaintiff with intent to cause him grievous bodily harm, and was sentenced by His Honour Judge Temple Q.C. to serve a term of imprisonment of three years.
At the time of the collision the first defendant was not insured by any relevant policy of insurance under Part VI of the Road Traffic Act 1972. The writ was issued on 27th May 1981 against the first defendant, and the present appellants were added by order dated 12th October 1981 of Mr. District Registrar P.H. Berkson in chambers and the statement of claim amended accordingly so as to include the claim against which the present appellants now appeal that the present appellants were bound to indemnify the plaintiff by virtue of the current agreement (that dated 22nd November 1972) between the appellants and the Secretary of State for the Environment.
At the hearing before Caulfield J. it was not disputed that the learned judge was bound by the decision of the Court of Appeal in Hardy v. Motor Insurers' Bureau [1964] 2 Q.B. 745, and the learned judge gave judgment for the plaintiff accordingly with a certificate pursuant to section 12 of the Administration of Justice Act 1969 and for leave to present a petition to your Lordships' House. Leave to appeal was subsequently granted by the Appeal Committee of your Lordships' House.
The question for appeal.
The sole question for decision by the House is accordingly whether Hardy v. Motor Insurers' Bureau ( supra) was correctly decided. This depends primarily on the true construction of the agreement relating to uninsured drivers of 22nd November 1972 between the appellants and the Secretary of State for the Environment (the M.I.B. agreement), Part VI of the Road Traffic Act 1972, and the proper application of any relevant rule of law or public policy arising from the fact that the actions alleged against the first defendant were not caused by negligence or recklessness but by his deliberate act amounting to an offence under section 18 of the Offences Against the Person Act 1861.
Before proceeding further it is perhaps relevant to point out the function of the M.I.B. agreement and the sister and similar agreement of the same date between the same parties relating to untraced drivers. Part VI of the Road Traffic Act 1972 is designed to protect the innocent third party from the inability to pay of a driver who incurs liability by causing him death or personal injuries. This it does partly (sections 143 and 145) by imposing an obligation on all drivers to insure against third party liability under sanction of the criminal law, and partly by conferring on a successful plaintiff a right of direct recourse in the civil courts against the judgment debtors' insurers if he is insured in the manner prescribed (e.g. sections 148 and 149). This by itself leaves a gap in the protection afforded to the innocent third party by Part VI since a guilty driver may either be uninsured altogether or untraceable so that it is not known whether he is insured or not and if so by whom. It is to fill this gap that the two agreements between the M.I.B. and the Secretary of State for the Environment have been voluntarily entered into. Their foundations in jurisprudence are better not questioned any more than were the demises of John Doe and the behaviour of Richard Roe in the old ejectment actions.
The relevant material.
By section 1 of the M.I.B. agreement (the definition section) it is provided:
"In this Agreement -
…..
'relevant liability' means 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."
The sole question for decision in this appeal accordingly depends on the answer to the question whether the events which happened constitute a "relevant liability" within the meaning of the definition section of the M.I.B. agreement.
That this is in fact the only issue appears from clause 2 of the M.I.B. agreement which is in the following terms:
"SATISFACTION OF CLAIMS BY M.I.B.
2. If judgment in respect of any relevant liability is obtained against any person or persons in any Court in Great Britain whether or not such a person or persons be in fact covered by a contract of insurance and any such judgment is not satisfied in full within seven days from the date upon which the person or persons in whose favour the judgment was given became entitled to enforce it then M.I.B. will, subject to the provisions of Clauses 4, 5 and 6 hereof, pay or satisfy or cause to be paid or satisfied to or to the satisfaction of the person or persons in whose favour the judgment was given any sum payable or remaining payable thereunder in respect of the relevant liability including any sum awarded by the Court in respect of interest on that sum and any taxed costs or any costs awarded by the Court without taxation (or such proportion thereof as is attributable to the relevant liability) whatever may be the cause of the failure of the judgment debtor to satisfy the judgment."
Clauses 4, 5 and 6 of the agreement, to which clause 2 is subject, need not be cited at length. Clause 4 provides that nothing in the agreement shall prevent the recovery by the insurers or M.I.B. (as the case may be) against the assured or any other person. Clauses 5 and 6 provide for various conditions precedent to and exemptions from any liability on the part of M.I.B. which admittedly have no application to the instant appeal.
In order to decide the appeal it is accordingly necessary to look at the provisions of Part VI of the Road Traffic Act 1972. This was a Consolidation Act passed some eight years after Hardy's case (supra) which was decided under the earlier Consolidation Act of 1960. The Act of 1972 was thus passed in the light of Hardy's case and without any attempt to amend the law as therein it was stated to be. Some argument was based on the legislative history underlying the Act of 1972, principally the Road Traffic Act 1930 (which may be read with the Third Parties Rights against Insurers Act 1930), and the amending Acts of 1934, and (after the Consolidation Act of 1960), 1971. In my opinion, however, except as a matter of history these previous Acts do not affect my judgment as to the construction of the present Consolidating Act of 1972, except that it may be noted in passing, again as a matter of history, that the long title of the Road Traffic Act 1930, referring in effect to Part II of that Act (Provision against Third Party risks) sections 35 and 36 of which correspond to sections 143 and 145 of the Act of 1972 describes the purpose as "to make provision for the Protection of Third Parties against risks arising out of the use of motor vehicles . ." This corresponds with the description of Part VI of the 1972 Act as: "Third Party Liabilities. Compulsory insurance or security against third-party risks."
In my opinion the two vital provisions of the Act of 1972 are respectively section 143(1) and section 145(1) - (3). These respectively read as follows and are taken so far as material verbatim from the 1930 Act. Section 143 (1) reads as follows:
"143. - (1) 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 use, 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 or such a security in respect of third-party risks as complies with the requirements of this Part of this Act; and if a person acts in contravention of this section he shall be guilty of an offence.
Section 145(1) provides as follows:
"145.- (1) In order to comply with the requirements of this Part of this Act, a policy of insurance must satisfy the following conditions.
(2) The policy must be issued by an authorised insurer, that is to say, a person or body of persons carrying on motor vehicle insurance business in Great Britain.
(3) Subject to subsection (4) below, the policy -
( a) 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 of or bodily...
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