Anne Louise Tiffney (ap) V. Sean Flynn (ap)+motor Insurers Bureau
| Jurisdiction | Scotland |
| Judge | Lord Kinclaven |
| Neutral Citation | [2007] CSOH 149 |
| Docket Number | PD1181/03 |
| Published date | 21 August 2007 |
| Court | Court of Session |
| Date | 21 August 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 149 | |
| PD1181/03 | OPINION OF LORD KINCLAVEN in the cause ANNE LOUISE TIFFNEY (A.P.) Pursuer; against (FIRST) SEAN FLYNN (A.P.) and (SECOND) MOTOR INSURERS BUREAU Defenders: ________________ |
Pursuer: Ellis QC, Primrose; Balfour + Manson. LLP
First Defender: Forsyth; Campbell Smith for Condies, Solicitors, Perth
Second Defenders: Ferguson QC, Dunlop; Dundas & Wilson, C.S. LLP
21 August 2007
Introduction
[1] This is a reparation action arising out of a fatal road traffic accident which occurred in Mid Calder, West Lothian on 14 January 2001.
[2] The issue concerns the proper construction of the Agreement between the MIB and the Secretary of State for the Environment, Transport and the Regions dated 13 August, 1999 which is sometimes referred to as the "Compensation of Victims of Uninsured Drivers" Agreement (Production No. 29/1 of Process).
[3] The pursuer is the mother of the late Paul Michael Ross ("the deceased").
[4] She sues as an individual seeking damages in respect of her son's death.
[5] The deceased was one of three passengers in a car being driven by Sean Flynn, the first defender, at the time of the accident.
[6] On 31 May 2002 in the High Court in Edinburgh the first defender was convicted of causing death by dangerous driving, driving without a licence and driving without insurance.
[7] The second defenders are the Motor Insurers Bureau (the "MIB").
[8] In this action, the pursuer seeks:-
(1) decree for payment of damages by the first defender, and
(2) decree for declarator.
[9] The conclusion for declarator is in the following terms:-
"2. For declarator that, in terms of the Agreement between the second defenders and the Secretary of State for the Environment, Transport and the Regions dated 13th August, 1999, the second defenders are liable to satisfy any decree pronounced against the first defender in the event of such decree or part thereof becoming an unsatisfied judgment as defined by the said Agreement."
[10] The case came before me by way of a proof before answer restricted to the question of liability.
[11] The proof was originally ordered to be restricted to the questions of (1) the liability of the first defender to the pursuer; (2) the contributory negligence on the part of the deceased; and (3) the liability of the second defenders under the uninsured drivers agreement reserving for future determination all questions of quantum.
[12] Helpfully, many of the central facts were agreed by way of a Joint Minute (No. 36A of Process) which I will outline below.
[14] In the result the only live issue before me was question numbered (3), namely, the liability of the second defenders under the uninsured drivers agreement.
[15] I also heard evidence from Roger Snook of the MIB which I will also outline below.
[16] I was subsequently addressed by counsel in relation to the English case of Louise Jestina Phillips (as representative of the estate of Neville Britton Phillips deceased) v Mohammed Rafiq and Motor Insurers Bureau which is reported at [2006] EWHC 1461 (QB) and, on appeal, at [2007] EWCA Civ 74 ("the case of Phillips").
[17] At the proof, Mr Ellis QC and Mr Primrose appeared for the pursuer. The pursuer argued that on a proper construction of the 1999 Agreement the MIB are liable to satisfy any decree pronounced against the first defender and that decree of declarator should be pronounced as sought.
[18] Mr Forsyth appeared on behalf of the first defender who admitted liability. Mr Forsyth simply sought leave to withdraw from the proof as the issues were not of direct interest.
[19] Mr Ferguson QC and Mr Dunlop appeared for the second defenders (the "MIB") at the proof. The second defenders submitted that that on a proper construction of the 1999 Agreement the MIB were not liable and that decree of declarator should be refused. The second defenders should therefore be granted decree of absolvitor.
[20] Most recently, on 19 April 2007, I heard further argument from Mr Ellis and Mr Dunlop in relation to the Appeal Court Decision in the case of Phillips.
[21] In the whole circumstances, and for the reasons outlined below, I am satisfied that the pursuer's submissions fall to be preferred.
[22] I agree with the conclusions of the Court of Appeal in England and Wales in the case of Phillips.
[23] I am not satisfied that Phillips can be distinguished.
[24] I was not persuaded by any of the additional arguments presented on behalf of the MIB before me.
[25] I shall therefor grant the declarator sought by the pursuer in terms of the second conclusion of the summons.
[26] I shall continue the cause on the question of expenses.
[27] I shall also put the case out "By Order" in respect of further procedure.
The Motor Insurers Bureau ("the MIB")
[28] At the outset, it might be helpful to say a few preliminary words about the establishment and function of the MIB.
[29] Those matters were outlined by Lord Nicholls of Birkenhead in White v White [2001] UKHL 9 (at paragraphs 6 and 7) as follows:-
"6. At the end of the war the insurers set up the Motor Insurers' Bureau, which for brevity I will refer to as 'MIB'. MIB is a company incorporated under the Companies Acts. Its primary object is to satisfy judgments in respect of any liability required to be covered by contracts of insurance under the Road Traffic Acts. Its members comprise all insurers who are for the time being transacting compulsory motor vehicle insurance in this country. MIB is funded by levies payable by its members. The amount of the levy is based on the premium income of the members. Ultimately, therefore, the funds of MIB come from the pockets of law abiding motorists who have complied with their statutory insurance obligations.
7. The obligations of MIB are not to be found in an Act of Parliament. Instead, they are the subject of agreement with the appropriate minister. The first agreement was made on 17 June 1946, between the Minister of Transport and MIB. From time to time this has been brought up to date with supplemental agreements. The latest supplemental agreement is dated 13 August 1999, made between the Secretary of State for the Environment, Transport and the Regions and MIB."
[30] In the case of Phillips, Lord Justice Ward also provided a summary of the background to the MIB scheme for the compensation of victims of uninsured drivers (at paragraph 10) as follows:-
"The Road Traffic Act 1930 made it compulsory for motor vehicles to be insured against third party risks yet the Act gave no protection to those third parties where the negligent motorist had failed to comply with his statutory obligation to insure. That lacuna was filled in 1946 by motor insurers setting up the M.I.B. to satisfy judgments where the use of the vehicle should have been covered by contracts of insurance under the Road Traffic Acts. All motor insurers are members of the Bureau. The Bureau's funds are obtained from levies charged upon insurers and so come from the premiums which are charged by those insurers to members of the public. The obligations of the M.I.B. arise from agreements made with the Minister of Transport, now the Secretary of State for the Environment, Transport and the Regions. Agreements were made in 1946, 1971, 1972, on 21st December 1988 ("the 1988 agreement") and on 13th August 1999 ('the 1999 Agreement')."
[31] I turn now to the pleadings.
The Pleadings in the present case
[32] The pleadings are contained in the Closed Record No 36 of Process.
[33] The pursuer's claim against the first defender is based on fault at common law (Article 6 of Condescendence).
[34] It is a matter of agreement that the accident was caused by fault and negligence on the part of the first defender and that the deceased was wearing a seat belt (see paragraphs 4 and 5 of the Joint Minute No 36A of Process - below).
[35] The pursuer's averment relating to damages are contained in Article 5 of Condescendence. The pursuer's claim is for "loss of society" - under section 1(4) of the Damages (Scotland) Act 1976. The pursuer also avers that she has suffered a loss of support and a loss of services and that she incurred funeral costs.
[36] It is also a matter of admission on Record (based on Answer 2) that in terms of the Agreement between the second defenders and the Secretary of State for the Environment, Transport and the Regions, dated 13 August 1999 (the Uninsured Drivers' Agreement) the second defenders (the MIB) agreed, subject to certain conditions, to satisfy any unsatisfied judgment pronounced against a driver who, at the time of the road traffic accident, was not covered by a Contract of Insurance as required by the Road Traffic Acts.
[37] In Article 6 of Condescendence the pursuer avers, inter alia (at page 16B-E):-
"... the second defenders are not entitled to rely upon Clause 6.1(e) of the Uninsured Drivers Agreement to avoid liability to satisfy any judgment pronounced in the present proceedings. In terms of the Uninsured Drivers' Agreement the claimant is the pursuer. The terms of said Agreement are clear and unambiguous. There is no provision therein which entitles the second defenders to rely upon the alleged knowledge of the deceased person in respect of the insurance arrangements for a vehicle in order to avoid liability for a claim made by a relative of the deceased against the driver of such a vehicle. Had the defenders wished to enable themselves to rely upon the alleged knowledge of a deceased person in such circumstances a Clause to that effect could have been inserted into the Agreement. The knowledge of the deceased is irrelevant in the context of the present claim. The second defenders are obliged to satisfy any judgments pronounced against the first defender in the present proceedings."
[38] In Answer 6 the second defenders (the MIB) aver inter alia (at page 18A-19E):-
"... insofar as the pursuer directs this action against the second defenders, her ability to do...
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