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Case
Reference Number:
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A971/05
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SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT KIRKCALDY
JUDGMENT OF SHERIFF WILLIAM HOLLIGAN
in causa
PURSUER SIMON GEORGE McLEOD, residing at care of 4
Martin Crescent, Ballingry, Fife
KY5 8QE
against
DEFENDER DAVID
DAVIDSON, residing at 73
North Street, Lochgelly, Fife
KY5 9NR
MINUTERS MOTOR
INSURERS BUREAU, Linford Wood House, 6-12
Capital Drive, Linford Wood, Milton
Keynes MK14 6XT
ACT: Mrs Wyse, Solicitor; ALT: Mr
Matheson (Minuters), Solicitor.
KIRKCALDY 11 June
2007. The Sheriff, having resumed
consideration of the cause, FINDS IN FACT:-
[1]
The pursuer resides at 4 Martin Crescent, Ballingry. His date
of birth is 9 October 1977.
[2]
The defender resides at 73 North Street, Lochgelly. His date
of birth is 15 October 1980.
[3]
On the 10 August 2002 ("the relevant date") the pursuer resided at 7 Forrester Court, Lochgelly ("the pursuer's house").
[4]
On the relevant date the pursuer had a
plaster on one of his legs. He had
suffered an injury at work. He was
unable to drive a car.
[5]
On the relevant date, the defender
consumed a quantity of alcohol in a pub.
He was under the influence of alcohol.
[6] On the relevant date approximately 20 to 30 minutes
before coming to the pursuer's house the defender bought a Vauxhall Cavalier
registration number G996 VNF ("the car").
[7] The defender bought the car for approximately
£50.
[8] On the relevant date the defender was a
disqualified driver. He has been
disqualified from driving since the age of 16.
[9] On the relevant date the car had no valid MOT
certificate and had no valid road tax licence.
[10] On the relevant date the defender had no valid
policy of insurance relating to the car.
[11] The pursuer
and the defender had met each other before.
They had known each other for two years.
The defender was friends with John Rankine. The pursuer and the defender met through
their common friendship with John Rankine.
[12] The
defender lived upstairs from John Rankine. The defender and John Rankine lived
a few streets away from where the pursuer lived.
[13] The defender drove to the pursuer's house
where he met the pursuer, John Rankine and John Rankine's girlfriend. The defender was excited that he had bought a
new car.
[14] The defender drove the car to the pursuer's
house on the relevant date in the late afternoon or early evening.
[15] Before going for a drive in it, the pursuer
knew that the defender's car was new to the defender and that the defender had
just bought it. The pursuer also knew it
was of low value.
[16]
The pursuer did not ask the defender if the defender was insured to drive the
car.
[17] The
pursuer and the defender decided to go for a drive to Kirkcaldy to purchase cannabis.
They put their money together to buy the cannabis.
[18]
It was agreed that the defender would
drive by the back roads. The defender drove the car to Kirkcaldy along the back
roads. The pursuer was a passenger in the car.
[19]
Whilst in the course of the journey from
the pursuer's house to Kirkcaldy the car, driven by the defender, was involved
in an accident.
[20]
The pursuer was taken to hospital after
the accident.
[21]
The defender was driven to the hospital
by another motorist. The defender left
the hospital to avoid being detained by the police.
[22]
The pursuer ought to have known the
defender was not insured to drive the car.
[23]
At or about the time of the accident the
car was being used in furtherance of a crime.
FINDS IN FACT AND IN LAW that the Pursuer ought to have
known that the defender was not insured et
separatim that the vehicle was being
used in furtherance of a crime in terms of the clause 6(1)(e) of the Uninsured
Drivers Agreement, the Minuters are not liable to satisfy any decree pronounced
against the defender, and ASSOILZIES the Minuters from the craves of the
Initial Writ; RESERVES all questions of expenses and APPOINTS parties to be
heard thereon on Thursday, 21 June 2007
at 10.00 am within the Sheriff Court House, Whytescauseway, Kirkcaldy.
NOTE
[1]
This is a case about a road traffic
accident which occurred on 10 August 2002
in which the pursuer was a passenger in a vehicle driven by the defender. There is no dispute that on the day in the
accident the defender was uninsured. The
Motor Insurers Bureau ("MIB") are party Minuters in this action.
[2]
I heard evidence from the pursuer and
the defender. It cannot be said that
either was an impressive witness. A letter dated 13 October 2003 was put to the pursuer which recorded that he admitted he
was a regular drug user. He denied the truth of what was recorded but in so
doing accepted that he had not told the truth to the author of the letter. (There
was no positive evidence led to prove he was a drug user. Paragraph 3 of the
Joint Minute provides agreement of what the pursuer said at the time rather
than the truth of what he said). I record this as an example of why I did not
accept him, generally, as being a credible and reliable witness. I saw and listened to the pursuer giving
evidence. He did not impress me. The
defender was marginally better. He
accepted a number of matters which could be said to be adverse to his
interests, particularly in relation to his driving history. He seemed a better historian than the pursuer
and I have to say that much of his evidence had a ring of truth about it.
[3] The defender said that on the day of the
accident he had been drinking at a pub. He bought the car later involved in the
accident from some "boys" for £50. The
car had no MOT certificate and no road tax.
He had no policy of insurance to drive the car. He was a disqualified driver and, indeed, on
his evidence, he had been disqualified from driving from the age of 16. He had
been involved in road traffic offending particularly when resident in Dundee.
He could not have obtained insurance because of his driving status.
[4]
Both witnesses agreed that on the
relevant date the pursuer was at home.
He had injured his leg which was in plaster. At that point the pursuer lived at 7 Forrester Court, Lochgelly not far from where the defender lived. Both witnesses shared a friendship with John
Rankine. Mr Rankine's girlfriend is the
pursuer's cousin. I detected a
reluctance or vagueness by both witnesses to acknowledge the length and
substance of their acquaintance. The
pursuer eventually accepted that he had known the defender a couple of
years. On any view of the evidence they
were not strangers to each other.
Whether Mr Rankine was in the pursuer's flat when the defender arrived
or whether he came with the defender is not clear and I think nothing turns on
this.
[5]
At one point the defender said he was
excited about having acquired the car and I accept he was. The defender had bought the car some 20 to 30
minutes before joining the pursuer at his house. The pursuer accepted he knew the defender had
just obtained the car and that it was new to him. I accept the defender's evidence when he said
he told the pursuer he had just got the car.
It seems to me highly probable.
Being in a state of excitement, and also on his evidence, some
intoxication, it is quite likely that told the pursuer of his recent purchase.
[6]
There is no dispute that all three (the
pursuer, the defender and John Rankine) got into the car and drove to
Kirkcaldy. What is in dispute is the
reason they did so. The pursuer said they were going for a run, as he put it,
to look at women in Kirkcaldy. The
Minuters' case on record is that it was the pursuer who persuaded an unwilling
defender to drive to Kirkcaldy in order to allow the pursuer to deliver a
quantity of cannabis to a drugs dealer in Kirkcaldy. The pursuer flatly denied this. So did the defender. However, it was the defender's evidence that
all three decided to go to Kirkcaldy to purchase cannabis and that they shared
money to divide the cost of the purchase.
I reject the pursuer's evidence on this issue and accept the defender's
evidence. (However, given that John
Rankine has not given evidence, I have some hesitation in making a finding in
fact in relation to him).
[7]
Again, both witnesses agree that the
journey to Kirkcaldy was along the back roads.
They agreed to travel by the back roads. The defender said he went along
the back roads to avoid detection by the police and I accept he did. He clearly
had a motive to do so. He was a disqualified driver.
[8]
An accident occurred on the way. The pursuer
was taken to hospital. The pursuer was
asked whether he accepted he had refused to identify the driver of the vehicle
when asked to do so by the medical staff.
His answer was to the effect that he had suffered injury and was in
receipt of medication. He did not accept
there was a deliberate refusal on his part and there is no positive evidence to
contradict his position. The defender was taken to hospital by another
motorist. He said he did not wait at the
hospital because he feared that he might be detained by the police. Again I
accept this.
[9]
Both witnesses were adamant that, the
before the accident, the pursuer had not been expressly told that the defender
was uninsured, the car was not taxed and had no MOT certificate. The defender said he had never told the
pursuer that he, the defender, was a disqualified driver and the pursuer had
never asked. The pursuer's evidence was,
broadly, to the same effect. It follows
that I have no positive evidence before me that the pursuer was actually told
as to the defender's driving status and that he was uninsured.
[10]
Before I deal with the submissions of the
parties it is as well to note at this stage that both agents were somewhat
taken by surprise as to the evidence concerning the issue of cannabis. Both had
thought the issue was to be, as set out in the pleadings, namely that the
pursuer had in his possession quantities of cannabis which were to be delivered,
rather than going to purchase drugs. Parties agreed that the issues concerned
the interpretation and application of the Agreement entered into between the
Secretary of State and the MIB in 1999 ("the Agreement") and in particular the
interpretation of clauses 6(1)(e)(ii) and (iii) thereof. Given the way the
evidence emerged I allowed parties 28 days within which to lodge written
submissions, if so advised, which they both did.
Pursuer's Submissions
[11]
For the pursuer, Mrs Wyse invited me to
accept her client as a credible and reliable witness and to do so in preference
to the defender. The defender did support the pursuer in that he said that the
pursuer did not know that there was no insurance tax or MOT. The defender had
been disqualified as a driver since the age of 16 but that had been as a result
of his activities in Dundee of which the pursuer had no knowledge. The pursuer's
dealings with the defender arose as a result of a friendship with John Rankine.
He was not a personal friend of Rankine although the pursuer said he had known
the defender for some time.
The defender said they were going to get
drugs but the pursuer was unemployed at the time and had no money for drugs. He
denied an intention to buy drugs. He was "going for a spin" for which there was
some support from the defender who was excited by his new car. Liability was
admitted. If I were to find for the pursuer I ought to sist the matter for
further medical investigations.
Minuters' Submissions
[12]
Mr Matheson accepted that the onus was on the MIB to invoke the exception in
the Agreement. The onus was on the MIB to show that the pursuer knew that the
defender was not insured or that there was a wilful turning away from the
question of insurance once circumstances raised the pursuer's suspicions about
insurance. Mr Matheson referred me to
the case of White v White [2001] UKHL 9 and in particular paragraphs [15] and [16]. He accepted mere
carelessness was not enough. The case related to an earlier version of the
Agreement but the relevant principle remained the same. He was not relying on
clause 6(3). Mr Matheson accepted that,
on the state of the evidence, there was no actual knowledge that the pursuer
knew the defender was uninsured. Accordingly, he relied upon that part of
clause 6(1) to the effect that the pursuer ought to have known that the
defender was uninsured. The defender
said he bought the car for £50 a short time before he met the pursuer. On any view it had a low value. The pursuer had accepted that the car was
"new" that day. It was
unlikely that the defender would have been able to arrange insurance and pay
for it in that time or at all. I could
have regard to the demeanour of the defender.
It was unlikely he would have arranged insurance. The pursuer had accepted he had known the
defender for two years.
[13]
So far as the use of a vehicle in the
course or furtherance of a crime was concerned I should accept the defender's
evidence that all three persons intended to purchase drugs in Kirkcaldy. I should accept that pursuer was a drug
user. Reference was made to a 6/1. The crime was to be in possession of
drugs. In his written submissions Mr
Matheson accepted that the vehicle was not being used in the course of a crime
at the material time. The issue was
whether such a journey was "in.. furtherance of a crime". So far as he was aware there was no judicial
interpretation of the relevant part of clause 6. In the Guide to the Handling
of MIB Claims it was said: "If the presence of drugs (in the vehicle) is merely
incidental to the journey (the driver and passenger's personal supply of heroin
being within the car, for instance) then the passenger should still be able to
claim, as the vehicle is not being used either in the cause of the crime or for
the furtherance of it. If the journey
was to deliver or collect drugs, then the passenger could be excluded from
claiming. This matter has yet to be
tested in the courts, however."
(Jervis and Dawson "A Practical Guide to Handling Motor Insurers
Bureau Claims" 2002 page 21). The
purchase of illicit drugs falls within the furtherance of that purchase, in
other words, a crime. Reference was made
to Express Newspapers Ltd v McShane
[1980] WLR 89 and in particular the speech of Lord Diplock. That case involved
interpretation of the word "furtherance". That case suggested three tests as to what is
meant by "furtherance". On the
evidence, whichever of the tests applied they were all satisfied. The sole intention of the journey was to
purchase illicit drugs and therefore the use of the vehicle was sufficiently
proximate to the offence so as to be in "furtherance" thereof. The journey by the pursuer had as its express
purpose the purchase of illicit drugs as opposed to any ancillary purpose. It therefore follows that the purchase of
illicit drugs can be said to be in furtherance of the purchase. Secondly, the journey would have had a
practical effect by facilitating the purchase of illicit drugs. Thirdly, the test of whether the journey was
"reasonably capable of achieving the objective" the planned crime is
also satisfied. It was submitted that
the plain wording of the exception contained in clause 6(1)(e)(iii)
applied. The Second Directive, discussed
in White, does not specifically
refer to the exception clause but one could not treat the clause as pro non scripto. The Agreement is a contract and it is not
open to the court to rewrite the bargain (McBryde Contract 2nd ed
8-23ff). It is competent for the court
to grant decree of absolvitor (White
and Mcfarlane v Thain and MIB 2006 SC 360).
Decision
[14]
As I have said, the issue of which the
parties have presented concerns the interpretation of clause 6 (1)(e)(ii) and
(iii) of the Agreement. In short, the Agreement
constitutes an Agreement between the Secretary of State and the MIB whereby in
terms of clause 5, subject to exceptions, the MIB agrees to make payment to
persons who hold, in this jurisdiction, an unsatisfied decree.
Clause 6 provides that there are certain
exceptions to the MIB's obligation pursuant to clause 5. The relevant parts of clause 6 are as
follows:-
"(1)
Clause 5 does not apply in the case of an
application made in respect of the claim of any of the following descriptions
....
(e)
a claim which is made in respect of a
relevant liability .... by a claimant who .... was voluntarily allowing himself to
be carried in the vehicle and... before the commencement of the journey in the
vehicle .... knew or ought to have known that -
....
(ii) 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) 1988,
(iii) the vehicle was being
used in the course or furtherance of a crime"
[15]
It is accepted by the MIB that there is
no evidence to establish that the pursuer knew that the vehicle was being used
without there being in force in relation to a valid contract of insurance. The issue is whether the pursuer "ought to
have known". The facts on which the
MIB rely to say that the pursuer ought to have known are: the purchase of the
car at such a low price (£50) and the pursuer's knowledge of a low value; purchase of the car 20 to 30
minutes beforehand suggesting there would have been no time to insure it; the
pursuer knew the defender had only just acquired the car; the demeanour of the
defender, meaning he was not the sort of person who would be likely to have
taken out insurance; the pursuer had known the defender for two years and would
have known something about his character.
Mr Matheson did not rely on the defender's disqualification from
driving. The defender accepted his disqualification would prevent him from
having insurance to drive the car.
[16]
By a majority, the House of Lords held in
White that the words
"ought to have known" having regard to the Second EEC Motor Insurance
Directive 84/5/EEC of 30 December 1983 ("the Directive") do not include
carelessness or negligence. Mr Matheson
accepted that proposition and referred to the speech of Lord Nicholls of Birkenhead
particularly at paragraphs [15] and [16]. I quote from these paragraphs and
also paragraph [17].
"......
In this context, knowledge by a passenger that a driver is uninsured means
primarily possession of information by the passenger from which the passenger
drew the conclusion that the driver was uninsured. Most obviously, and simply,
this occurs when the driver told the passenger that he had no insurance cover.
Clearly, information from which a passenger drew the conclusion that the driver
was uninsured may be obtained in many other ways. Another instance would be
that the passenger was aware, from his family or other connections with the
driver, that the driver had not passed his driving test ("if he'd taken the
test, I would have known"). Knowledge of this character is often labelled
actual knowledge, thereby distinguishing other types of case where a person,
although lacking actual knowledge, is nevertheless treated by the law as having
knowledge of the relevant information.
16 There
is one category of case which is so close to actual knowledge that the law
generally treats a person as having knowledge.
It is the type of case where, as applied to the present context, a
passenger had information from which he drew the conclusion that the driver
might well not be insured but deliberately refrained from asking questions lest
his suspicions should be confirmed. He
wanted not to know ("I will not ask, because I would rather not
know"). The law generally treats this
state of mind as having the like consequences as would follow if the person, in
my example the passenger, had acted honestly rather than disingenuously. He is treated as though he had received the
information which he deliberately sought to avoid. In the context of the Directive that makes
good sense. Such a passenger as much
colludes in the use of an uninsured vehicle as a passenger who actually knows
that the vehicle is uninsured. The
principle of equal treatment requires that these two persons be treated
alike. The Directive is to be construed
accordingly.
17. Thus far I see no difficulty... I am in no
doubt that "knew" in the Directive does not include what can be described
broadly as carelessness or "negligence".
Typically this would cover the case where a passenger gave no thought to
the question of insurance, even though all an ordinary prudent passenger, in
his position and with his knowledge, would have made enquiries. He "ought" to
have made inquiries, judged by the standard of the ordinary prudent
passenger. A passenger who was careless in this way cannot be treated
as though he knew of the absence of
insurance .... A passenger who was careless in not knowing did not collude in the
use of an uninsured vehicle, and he's not to be treated as though he did. To decide otherwise would be to give a wide,
rather than a narrow, interpretation to the exception permitted by the
Directive."
[17] As I read the paragraphs I have set out there
are two categories of knowledge. The
first arises when the passenger had information that the driver was not
insured, most typically when the passenger is told expressly that there is no
insurance. The second category arises
when the passenger has information from which he drew the conclusion that the
driver might not be insured but decided not to ask questions lest the
suspicions he had were confined. As Lord
Nicholls said at paragraph [14] the exception is directed at persons
consciously colluding in the use of the uninsured vehicle and that covers the
passenger who does have information that the driver is uninsured or at least
had suspicions of no insurance and deliberately asked no further
questions. The question of negligence
covers the situation whereby the passenger does not bother to ask and gives no
thought to the question of insurance. It
seems to me that Lord Nicholls distinguishes this category from the second
category I have referred to on the basis that, in the case of the latter, the
passenger has some information that the driver may be uninsured and does
nothing, whereas in the case of "negligence", he has no such information and
takes no steps to check. On the facts of
that case the trial judge had held, in effect, that the passenger was merely
careless in not checking that his brother had got himself insurance to
drive.
[18]
Mr Matheson did not seek to depart from
the formulation reached by the majority in White. If I have understood it correctly, the issue
here therefore is whether the facts of this case fall within Lord Nicholls'
second category or whether it falls into the category of negligence and mere
carelessness. What information did the pursuer have? Lord Nicholls says
"information from which he drew the conclusion that the driver might well
not have been insured". I do not
think his Lordship meant that the MIB must prove the passenger's actual state
of knowledge. It would render the
distinction between categories one and two difficult to draw and from a
practical point of view the passenger is highly unlikely to admit that he entertained
suspicions as to the driver's state of insurance. It seems to me more likely than his Lordship
meant there must be evidence from which a court can infer that the passenger
must have had a basis for concluding that the driver was not insured and deliberately
failed to ask questions. Such a
conclusion fits with the general conclusion that the exception is aimed at
those consciously colluding in the use of an uninsured vehicle. It also squares with what Lord Nicholls said
later (at paragraph [23]) that "ought to have known" is apt to
include knowledge which an honest person who enters the vehicle voluntarily
would have.
[19] I have found that the defender did acquire the
vehicle shortly before arriving at the pursuer's house and that the pursuer knew
that. Although there is no positive evidence that the pursuer knew that the
purchase price was £50 the pursuer thought it might be worth a couple of
hundred pounds, in other words of low value.
There is no positive evidence to the effect that the pursuer knew the
defender had no licence and I make no finding that the pursuer did have such
knowledge. I do conclude that the
intention was to go to Kirkcaldy to buy drugs.
The parties decided to travel the back roads (and that includes the
pursuer) and that decision was made prior to leaving the house. The defender accepted he intended to drive on
those roads to avoid detection by the police.
Again there is no positive evidence that this was communicated to the
pursuer. There is also Mr Matheson's
point that, having regard to the defender's demeanour in the witness box, which
I take to include a general observation as to his character, there must have
been doubt that he would be the sort of person to have arranged insurance
immediately after having acquired a vehicle of low value from a couple of "boys"
at a pub. The pursuer made no inquiries as to the state of insurance. I accept Mr Matheson's point. In my opinion, there is sufficient evidence
to me to conclude that Lord Nicholls' second category is established and that
the pursuer ought to have known there was no valid policy of insurance.
[20]
That leads me to the second issue. Was the vehicle being used "in the...
furtherance of a crime"? One of the major issues of interpretation in the case
of White was whether the exception to which I have referred ought to be
given a wide or a narrow construction. Having regard to the background of the Directive
the House of Lords held that it should be given a narrow interpretation. The
word "know" appeared in both article 1(4) of the Directive and the Agreement
then in force. As Mr Matheson pointed
out, the exception with which I am concerned here finds no expression in the Directive. As was stated in White the Agreement
is a contract. The clause falls to be
construed in the context of the whole Agreement. Read short, the Agreement provides a
mechanism whereby certain claims can be satisfied which would otherwise not to
be. It is a form of safety net. There are for whom the safety net does not
exist, such as those who collude in the use of vehicles where there is no
insurance cover. Another category
concerns those involved in criminal activities.
One way to resolve the interpretation, as was done in the course of the
debate before me, is to use an example.
Suppose a number of individuals form an intention to rob a bank using
weapons. They steal a car to be used to
get to the bank and to make good their escape.
In the course of arrival at the bank there is an accident and some of
the robbers are injured as a result of the driving of one of their number. It would be wholly unjust that the "robber
passengers" should be permitted to recover against the MIB should the other
parts of the agreement be satisfied. The
agreement expressly covers such a scenario.
Clause 6(1)(e)(iii) includes the use of the car in the commission of the
offence itself. There are also the words
"or furtherance". In my view,
"in the course" and "or furtherance" are different. The draftsman separates them with the
disjunctive "or". To have limited the
exclusion to the course of a crime only might have limited the extent of the
exclusion, attention being centred on what the crime actually was and whether
it was being committed. However, there
may well be circumstances in which the use of the car is in some way connected
to the offence although the offence is not actually underway at the time. The purpose of the exclusion is to prevent
persons using cars to pursue criminal activities and still being able to make
claims against the MIB. Mrs Wyse
suggested that "in furtherance" meant something occurring after the
crime is being committed. Reference was
made to Cochrane v HMA 6 November 2002. I do not accept
this construction. I see no reason to
distinguish between use of a car before and after the commission of the
crime. I can foresee circumstances in
which there is little connection between the use of the car and the offence
itself. In my opinion, there has to be some connection but whether it is in
furtherance of the crime is a matter of facts and circumstances. In this case, I accept the defender's
evidence that the intention was to go to Kirkcaldy to buy cannabis. The crime concerned was being in possession
of a controlled drug. That was the
principal purpose of the journey. The
principal purpose of the journey was not to go for a drive to look at women in
Kirkcaldy. That the pursuer in defender
never got there does not matter in much the same way as whether the bank robbers
ever reached the bank before having the accident is irrelevant. Nor am I of the view that one needs to
identify whether at the time the accident occurred an offence had been
committed. The issue is, if the offence was not actually being committed at the
time, was there a criminal purpose and was the car being used in furtherance
thereof? On the evidence here, I hold
that there was (the possession of cannabis) and the car was being used to
further it.
[21]
Accordingly for these reasons I will
assoilzie the Minuters from the craves of the Initial Writ. I have reserved the
question of expenses and have fixed a hearing on which I will hear parties.
