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Bretton v Hancock, Court of Appeal, 13 April 2005

21 April 2005
The issues

Third Party Insurance Risks – Road Traffic – Contributory Negligence – “Monk v Warbey”

The facts

The Claimant was a passenger in a Rover car driven by her fianc», Mr Bryant-Powell. It was involved in a collision with another vehicle, a Peugeot van driven by John Hancock. Mr Bryant-Powell was killed as was another passenger in the Rover. The Claimant brought an action against Mr Hancock. Mr Hancock was insured. Mr Bryant-Powell was not.

At Trial the Judge found both Mr Hancock and Mr Bryant-Powell responsible for the accident in the ratio 75/25%. The Rover in which the Claimant was travelling had been insured by the Claimant but only for her own driving. It had been bought by Mr Bryant-Powell but in Miss Bretton’s name. The Judge found that she had an interest in the Rover and that she was a user at the time of the accident and also sufficient control over its use.

The Judge found that she was in breach of her duty under Section 143(1) (a) of the RTA 1988 not to use a motor vehicle on the road without compulsory insurance in respect of third party risks. Mr Bryant-Powell was impecunious. The Judge found in favour of Mr Hancock’s counter claim against Miss Bretton for damages for breach of her statutory duty in that as a result of her breach he was unable to recover from Mr Bryant-Powell’s estate in respect of the estate’s liability to contribute 25% of the damages due to Miss Bretton.

In issue on the appeal were three matters:-

1. Whether the Judge had been correct to allow the Counter Claim.
2. Whether Mr Bryant-Powell’s driving had contributed in any way to the accident and to Miss Bretton’s injuries.
3. Whether the Judge had been right to find that Miss Bretton was a user of the Rover.

The accident occurred at 10.00 pm on 30th June 2000 on a dual carriageway with two lanes running in either direction through a residential area subject to a 40 mph speed restriction. There was a 3 metre central reservation with cut throughs to allow traffic to turn right into side roads. One side road was Ventnor Drive. Mr Hancock was driving along Valley Road and made a right turn through the central reservation intending to enter Ventnor Drive. He had consumed excess alcohol. The Rover was driving along Valley Road. Mr Hancock drove into the Rover’s path.

Mr Hancock pleaded guilty to two counts of causing death by careless driving under the influence of drink and was sentenced to two years in prison. Mr Bryant-Powell was travelling at 60 mph at the point of impact – 20 mph above the speed limit. He had been racing a Vauxhall driven in the outside lane. It had overtaken the Vauxhall on its inside and was in the lead when the accident occurred. On behalf of the Claimant it had been argued that the collision could not have been avoided and that the Judge was wrong to find that Mr Bryant-Powell’s driving was in any way causative of the accident.

The decision

1. Causation

The Judge had not said that the sole cause of the accident was Mr Bryant-Powell’s speed but equally he did not say that Mr Hancock’s negligence was the sole cause either. It would be wholly counterintuitive to come to that conclusion. The impact speed of 60 mph allowed for even higher speed and acceleration forces prior to the impact at which point the Rover had begun to brake. His speed must have played a material part in the causation of the accident and in the severity of its consequences.

2. User

Did Miss Bretton have an interest in the Rover and if so, was she using the car at the time of the accident?

It has been conceded that the second question had to be answered in the affirmative if the Court found that Miss Bretton had an interest. The car had been bought with Mr Bryant-Powell’s money who had signed the purchase invoice and had declared that he was the buyer of the car. However, Miss Bretton had made the proposal for comprehensive insurance on a highways motor policies form and had confirmed that she was the registered owner/keeper of the car. The Judge found that on all the evidence the Claimant and Mr Bryant-Powell had agreed that she was to have some interest in the car. Taking into account all the evidence the Judge’s finding as to her interest could not be said to be wrong.

3. The Counter Claim

The Counter Claim was in respect of pure economic loss namely the impossibility of recovery indemnity or contribution from Mr Bryant-Powell or any insurer. A “Monk v Warbey” claim has previously operated only where the victim of the third party loss was the Claimant. What was being compensated was a third party’s death or personal injury or loss arising from damage to his property. The Road Traffic Act was only concerned with third party loss. The obligation to insure the third party risk was limited by Section 145(3)(a) to liability for death or bodily injury or damage to property. The only such loss was that suffered by Miss Bretton but hers was not a third party loss. She owed a duty to insure her use of the Rover to the public as a whole but not to herself. Mr Hancock’s counter claim was based on a claim for contribution from Mr Bryant-Powell under the 1978 Act in respect of his own liability to Miss Bretton and was in respect of a pure economic loss. The driver was bound to insure a respective third party loss for such a personal injury but was not bound to insure against his liabilities as a tort feasor to contribute to the liability of another tort feasor. The principle in Monk v Warbey did not therefore extend to this situation.

Appeal allowed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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