Persson v London Country Buses
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STAMP,LORD JUSTICE JAMES |
| Judgment Date | 20 December 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J1220-1 |
| Date | 20 December 1973 |
| Court | Court of Appeal (Civil Division) |
[1973] EWCA Civ J1220-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Stamp
Lord Justice James
MR. C. FAWCETT, Q.C., and MR. P. HAMPTON (instructed by Messrs, G. Howard & Co.) appeared for the Appellant (Plaintiff).
MR. R. GIBSON, Q.C., and MR. J. WOODS, (instructed by Messrs. L. Bingham & Co.) appeared for the Respondents (2nd Defendants)
I will ask Lord Justice James to read the judgment of the Court.
This appeal is concerned with the construction of the agreement made between the Minister of Transport and the Motor Insurers' Bureau and dated 21st April 1969. We are told that this is the first occasion upon which this Court has had to consider the issue which is raised in this Appeal. The arguments have extended over many of the clauses of the Agreement. For convenience of reference, the full text of the Agreement is to be found in a note to White v. London Transport Executive, 1971 3 All England Reports, at page 6.
The subject matter of the Agreement is the making of payments by the Bureau in respect of personal injury or death caused by the use of a motor vehicle on a road in cases where the owner or driver of the vehicle cannot be traced. As a matter of history the Agreement was made in order to deal with a situation not covered by, and entirely different from, those situations provided for by an earlier agreement between the same parties made in June 1946 (now replaced by a new Agreement operating from 1st March 1971). Attention to this aspect was drawn by Mr. Justice Sachs in Adams v. Andrews, 1964 2 Lloyds List Reports, page 348. The 1946 Agreement related to unsatisfied judgments against identified drivers within the field prescribed by the Agreement. The 1969 Agreement relates to circumstances in which the liability to compensate for injury or death rests upon an untraced person or partly upon an untraced person and an identified person. The distinction is of importance in relation to the argument in the present case.
The facts giving rise to the present proceedings are theses Mr. Persoon, the plaintiff, suffered injury when, in the course of his employment as a bus conductor by the first defendants, the bus on which he was travelling suddenly stopped. His claim for damages against his employers was repudiated on the ground that the accident was causedsolely by the fault of another motorist. That motorist has not been identified or traced. Faced with that allegation the plaintiff made an application to the Motor Insurers' Bureau under the provisions of the 1969 agreement. It is only by virtue of the terms of the Agreement that payment can be obtained from the Bureau. The Bureau accepted the plaintiff's application, investigated it through the agency of an insurance company, obtained a report upon the circumstances of the accident and, having considered the report decided that an award should not be made to the plaintiff. Their decision was notified to the plaintiff and a copy of the report was sent to him. The ground upon which they so decided was that on the balance of probabilities the untraced person would not be liable to pay damages to the plaintiff. They said that the requirements of Clause 1 (1) (c), of the Agreement were not satisfied. In the letter dated 2nd March 1973, notifying the decision to the plaintiff's solicitors, it was pointed out that under the agreement the plaintiff had a right of Appeal to an Arbitrator. In a further letter the Bureau offered the plaintiff the opportunity of giving a provisional Notice of Appeal pending the result of action in the Courts against the Bus Company. The plaintiff deliberately chose not to exercise that right of appeal as to do so would have involved his undertaking to abide by the decision of the Arbitrator. If he appealed and failed and then, in proceedings against his employers, he obtained evidence of negligence on the part of the untraced driver he would have no claim on the Bureau. He decided to sue both the Bus Company and the Bureau in the County Court and, on the 3rd May, he commenced proceedings. His claim against the second defendants, the Bureau, was pleaded in this way:-
"3. Further or in the alternative the said accident was caused wholly or in part by the negligence of the driver of a car which was driven suddenly into the path of the said bus when it was not safe to do so.
"4.(i) The plaintiff has been unable to trace the driver of the said car;
(ii) The liability of the said untraced driver to pay damages to the Plaintiff as herein set out is one which was required to be covered by insurance or security under part (vi) of the Road Traffic Act, 1960.
(iii) On the 27th January, 1972 an application in writing on the plaintiff's behalf was made to the second defendants for compensation in accordance with the provisions of an Agreement between the Minister of Transport and the second defendants dated 21st April, 1969.
"5. The Second defendants have failed to compensate the plaintiff in accordance with the said agreement or at all and the plaintiff has suffered loss and damage as particularised in paragraph 3 herein".
The second defendants made a successful application to the Registrar for those paragraphs to be struck out and for the dismissal of the plaintiff's claim against them on the ground that it disclosed no cause of action. The plaintiff's appeal against that decision, heard by His Honour Judge Ruttle on 31st July 1973, failed. The plaintiff now appeals to this Court against the decision and order of the Circuit Judge.
One point taken, inadvertently we think, before the Judge, but not taken before this Court, on behalf of the Bureau was that the plaintiff was nota party to the contract upon which he sought to rely. It is in accordance with the publicly declared policy of the Bureau that the Bureau does not rely upon the absence of privity of contract and that policy has been fully adhered to before us. The main point taken before the Judge and argued before this Court is that the plaintiff, on the basis that the facts asserted, if true, would establish a right to an award, and payment of the sum awarded, under the provisions of the Agreement, and is entitled to have the validity of his claim to such an award, and payment, decided by the Court. It is argued...
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Byrne v Motor Insurers' Bureau and Another
...in the pleading and was placed at the trial by Mr O'Brien QC on behalf of the MIB on the decision of the Court of Appeal in Persson v London County Buses [1974] 1 WLR 569, from which it is clear that there is no cause of action available to a victim of an untraced driver against the MIB ou......
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Carswell v Secretary of State for Transport
...by an applicant against the MIB in reliance upon the contractual provisions of the Untraced Drivers' Agreement (see, e.g., Persson v London Country Buses [1974] 1 WLR 569, at pages 572F and 573G-H: and Byrne, at paragraph 5). Given that historical stance, the legal position under the 1999 ......