White v White and MIB

MIB – Claim Against An Uninsured Driver

The Claimant went to a late night party and travelled as a front seat passenger in a Ford Capri being driven by his brother along a country road a few miles outside Hereford. The car crashed and rolled over violently. The Claimant was very seriously injured. No other vehicle was involved. The Claimant’s brothers driving was to blame. The Claimant’s brother was uninsured as was the car. The Claimant’s brother had neither passed a driving test – moreover he was disqualified from driving. At the time of the accident the Claimant did not know that his brother was unlicensed but had known in the past that his brother had driven without a license. The Trial Judge had said that whilst it would be going too far to say that the Claimant knew his brother was uninsured “it stood out a mile” that he ought to have known.

The Background

The obligation of the MIB to satisfy an otherwise unsatisfied judgment against an uninsured driver does not apply with a passenger “knew or ought to have known” that the driver was uninsured. This accident occurred on 1993 and therefore proceeded on the basis of the 1988 agreement (the latest agreement being the 1999 agreement).

The purpose of the 1998 agreement had been to give effect to the Council Directive 84/5 EEC which under Article 1 (4) permitted exclusion of the Bureau’s liability where the passenger “knew” the driver was uninsured.

European court of Justice has stressed repeatedly that exceptions are to be construed strictly.

“Knew” should not be construed as including carelessness or “negligence” as where a passenger had given no thought as to the question of insurance though an ordinary prudent passenger would have done so. The Claimant’s accident came in this category. The Judge had found that on the night in question the Claimant had not “so much as bothered his head about such a matter as insurance”. His finding that the Claimant ought to have known that his brother was uninsured was no more than a finding of carelessness. The meaning of the phrase “knew or ought to have known” was governed by English law but depended on its context. The context here was the directive. It was intended to bear the same meaning as “knew” in the directive and should be construed accordingly and restrictively. “Ought to have known” extended only to cases of the type of a passenger who deliberately refrained from asking questions but did not include mere negligence or carelessness. (The 1999 agreement contains the wording 1998 agreement “knew or ought to have known”.)

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