Hardy v Motor Insurers' Bureau

JurisdictionEngland & Wales
Judgment Date11 May 1964
Judgment citation (vLex)[1964] EWCA Civ J0511-3
Date11 May 1964
CourtCourt of Appeal
Charles Wilfred Hardy
Plaintiff Responden
Motor Insurers Bureau
Defendants Appellants

The Master of the Rolls

(Lord Denning)

Lord Justice Pearson and

Lord Justice Diplock

In The Supreme Court of Judicature

Court of Appeal

From his Honour Judge D. O. MoKee

Leeds County Court

MR H. TUDOR EVANS, Q. C. and MR D. SAVILL (instructed by Messrs Clifford Turner & Co.) appeared as Counsel for the Appellants.

MR J. CRABTKEE (instructed by Messrs Simpson, Curtis & Co.) appeared as Counsel for the Respondent.


Mr Hardy was at one time a police sergeant. He is now the chief security officer of a big metal company in Yorkshire. On the 26th March 1962 he and another officer were going round a car park near the company's premises when they saw a van there. was a small 5 owt. Ford van. On the windscreen there was a road fund licence which had been stolen from one of the company's cars. They decided to stop the van when it left. They stationed themselves at a point where the private road leads into the main road. When the van came along. Hardy stood in the middle of the road and waved a torch to signal to the van to stop. It stopped about 10 yards from the main road. Hardy recogrised the driver as Vincent Phillips, a fitter in the works. Phillips no doubt recognised Hardy too. Phillips knew that Hardy was a chief security officer. Hardy went to the near side door of the van, opened it, stooped down and looked into the van. He had his left hand on the top of the door and his right hand on the jamb; and his head and shoulders just inside. He said to Phillips: "Will you pull in to the near side of the road? I want to speak to you". Phillips said nothing, but immediately drove the van off at a. fast speed. It shot forward. Hardy was pulled off his balance. The open door swung back and he was dragged on his knees. He held on to the door and shouted to Phillips: "Now don't do something silly". But Phillips still went on. He continued dragging Hardy along out into the main road. There Hardy fell off and knew no more until he was in hospital. He received concussion and shock, fractures of the left facial bone, two broken ribs, and abrasions to the face and knees. The knees of his trousers were torn to bits by being dragged along the road.


Phillips was charged at the Magistrates' Court with several offences. In particular he was charged with larceny of a road fund licence and driving a motor vehicle whilst uninsured. To those he pleaded guilty. He was also charged with maliciously inflicting grievous bodily harm upon Hardycontrary to Section 20 of the Offences against the Person Act 1861. To this charge he pleaded not guilty and elected to be dealt with summarily. He was found guilty and fined £25 and ordered to pay £11 costs, or in default 3 months imprisonment.


Hardy now claims damages for personal injuries. Seeing that Phillips was uninsured. Hardy's solicitors took appropriate steps to recover from the Motor Insurers Bureau. On the 11th October 1962 they gave notice to the Motor Insurers Bureau that they intended to bring proceedings against Phillips. On the 5th November 1962 they issued proceedings on Hardy's behalf against Phillips for damages for personal injuries for assault or alternatively negligent and reckless driving. On the 11th January 1963 judgment was given by consent for Hardy against Phillips for £300 damages and £12 agreed costs. Phillips did not pay any of these damages because he had not the means. Hardy now sues the Motor Insurers Bureau for the amount.


The action was brought on the agreement of the 17th June, 1946, between the Minister of Transport and the Motor Insurers Bureau. This agreement is as important as any statute. It says (so far as material) that "if judgment in respect of any liability which is required to be covered by a policy of insurance or a security under Part II of the Road Traffic Act 1930 (now Part VI of the Road Traffic Act 1960) is obtained against any person or persons in Great Britain and any such judgment is not satisfied", then the Motor Insurers Bureau will pay it to the person in whose favour the judgment was given. This was, on the face of it, a contract between two parties for the benefit of a third person. No point is taken by the Motor Insurers Bureau that it is not enforceable by the third person. I trust no such point will ever be taken. The only question is whether the liability of Phillips to Hardy was a liability which came under the agreement. Was it a "liability which is required to be covered by a policy of insurance" under the Road Traffic Act? The Motor Insurers Bureau say it was not. Theysay that this liability of Phillips was a liability for the consequences of his own willful and deliberate criminal act. He was guilty of maliciously causing grievous bodily harm with intent contrary to Section 18 of the Offences against the Person Act 1861 and not merely Section 20. No person, they say, can insure himself in respect of his own wilful crime. Nor can the legislature be supposed to have required him to do so.


The first question is: What was the nature of the crime committed by Phillips? This must be determined on the facts of the case. The proceedings in the Magistrates' Court cannot be decisive. Naturally enough, we were referred in this regard to the case of the Director of Public Prosecutions v. Smith in 1961 Appeal Cases, p. 291, where the facts bore a close similarity to the facts here. In that case it was accepted on all hands that, to constitute murder, it must be found that the accused himself intended to kill or to cause grievous bodily harm. The only question was: What was the proper test to apply to ascertain that intention? The Judge directed the jury in the time– honoured way: "If you are satisfied that he must, as a reasonable man, have contemplated that grievous bodily harm was likely to result to that officer still clinging on, and that such, harm did happen and the officer died in consequence, then the accused is guilty of capital murder". When you analyse that direction, it means that in judging of intent, the jury should regard the accused (in the absence of evidence to the contrary) as a "reasonable man". That means, in this context, an ordinary man capable of reasoning who is responsible and accountable for his actions. So regarding him, the jury should ask themselves: "Is the evidence so strong that we are satisfied that he, the accused man, must himself have been aware that grievous bodily harm was likely to result?" If so, he is guilty of murder. That test is clearly subjective, not objective. "Must he. the accused man, have been aware?" It is a test which has been used by the Judges of England for well over 120 years.


Notably in Reg. v. Walters (1841) Carrington & Marshman, p. l64, by Mr Justice Coltman; in Reg. v. Barnett (1868) (the Fenian Conspiracy case) in the Times of the 28th April, 1868, by Chief Justice Cockburn and Baron Bramwell; Reg. v. Seene (1887) 16 Cox C. C., p. 311, at p. 313 by Mr Justice Stephen; in Rex v. Lumley (1911) 22 Cox C. C. at p. 635 by Mr Justice Avory, and in Rex v. Ward. 1956, 1 Queen's Bench, p. 351, by Mr Justice Pilcher with the approval of Lord Chief Justice Goddard. In Smith's case Counsel for the defence actually requested the Judge to direct the jury in those terms; and he did so.


All that Smith's case decided, as a matter of binding authority, was that the Judge's direction to the jury, which I have quoted, was correct. But the speech of the Lord Chancellor contained also some propositions which have been described as "misconceived and wrong". I would ask those who say this to remember that the passage which has been most criticised is prefaced by the words "in such a case as the present"; that is, a case where the driver of a. motor car is determined to escape from lawful apprehension or detention; and, for this purpose, aims his vehicle at a lawful citizen who stands in the way. Like the case of the courageous Naval officer in 1944, Captain Binney, who stood in the path of motor bandits calling on them to stop. They ran him down and killed him; and were held guilty of murder. In any such case the driver has one overall intent – to get away at all costs. He is undoubtedly guilty of manslaughter, but may it not also amount to murder? And how do you distinguish between them? Only by reason of his state of mind at the time. If the thought flashed through his mind; "I am determined to escape and. will run him down if he does not get out of the way"; and in consequence the man is killed, the driver is guilty of murder. And how can you find out whether such a thought passed through his mind? Only by asking whether, as an ordinary responsible person, he must have been aware that grievous bodily harm was likely to result. Such a state of mind, if death results,makes him guilty of murder; and, if grievous bodily harm results, makes him guilty of an offence under Section 18 of the Offences against the Person Act 1861. In the present case, in some of the passages the Judge seems to have considered that Phillips was acting recklessly in a panic: but in his conclusion he says: "I think there was, in his mind, the idea of getting away and of brushing off the plaintiff who was standing at the door of his car; and in these circumstances I think he had the intention of injuring the plaintiff". That comes to this: That Phillips in effect said to himself: "I am going to get away even if I do drag him along the ground with me". Such a state of mind makes him guilty of a felony under Section 18 of the Offences against the Person Act 1861.


The second question is whether the liability of Phillips for damage in these circumstances is a liability which was required to be covered by insurance. Under the Road Traffic Act it was the duty of Phillips to see that he. was...

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