Daniel Curran (plaintiff/ appellant) v Mary Ellen Gallagher, Joseph Gallagher and the Motor Insurers Bureau of Ireland (defendants/ respondents).
Negligence - Personal injuries - Uninsured motorist - Injured passenger - State of knowledge of injured party - Relevant time - Test to be applied - Onus of proof - Whether evidence supported finding - Motor Insurers Bureau of Ireland Agreement 1988, paragraph 5(2) - Road Traffic Act 1961 (No 24), sections 56 and 118.
The Supreme Court (Mr Justice Keane, Mr Justice Murphy and Mr Justice Lynch); judgment delivered 7 May 1997.
IN determining whether an injured party knew or ought to have known that the driver of the car in which he or she was travelling had no authority to take it out onto the public highway, the test to be applied is a subjective one. It is the state of knowledge of the injured party at the time which is relevant. The onus of proving that the plaintiff knew or ought to have known that the driver had no insurance is on the Motor Insurers Bureau of Ireland and if it fails to discharge that onus then the obligations under the Motor Insurers Bureau of Ireland Agreement apply.
The Supreme Court so held in allowing the appeal of the plaintiff, saying that the evidence did not support the findings of the learned trial judge and making a declaration that the third defendant was obliged to satisfy any judgment obtained by the plaintiff against the first and second defendants.
James Nugent SC, Michael Carson SC and Paul Gettigan BL for the plaintiff appellant; John Hedigan SC and Padraic O'Higgins SC for the third defendant/ respondent.
MR JUSTICE LYNCH delivering the majority judgment of the court said that the matter came before the court by way of appeal from a decision of Miss Justice Carroll in the High Court on 25 October 1995. The plaintiff brought an action claiming damages for personal injuries, loss and damage sustained by him as a result of the negligence of the first and second defendants and further sought a declaration that the third defendant was obliged to satisfy any judgment which the plaintiff might obtain against the first and second defendants. The third defendant denied that it was so obliged.
The High Court then directed that an issue be tried as to whether or not the third defendant (the Motor Insurers Bureau of Ireland) was obliged under the terms of the 1988 agreement between it and the Minister for the Environment to satisfy any judgment obtained by the plaintiff against the other defendants on the grounds that the plaintiff knew or ought to have known that the first and second defendants were not covered by an approved policy of insurance.
Miss Justice Carroll in her judgment dismissed the plaintiff's case against the third defendant, saying the plaintiff was not entitled to succeed against the third defendant in the circumstances.
Mr Justice Lynch outlined the facts of the case. On the night of the 24 June 1992 the plaintiff and the first defendant were travelling as passengers in a vehicle driven by the first defendant's boyfriend when it stalled in the vicinity of Falcarragh in County Donegal. The first defendant said she would get her mother's car (which belonged to the second defendant) as she knew it was parked nearby at her mother's place of work. The first defendant knew the car would be unlocked with the keys under the mat inside the car. The plaintiff followed the first defendant and sat into the car. The first defendant drove off towards her intended destination and subsequently collided with a wall. The plaintiff was injured.
Mr Justice Lynch said the plaintiff recovered judgment in default of defence against the first and second defendants on 8 November 1993. By virtue of section 118 of the Road Traffic Act 1961, in the absence of a denial by the second defendant, the first defendant was deemed to have been driving with the consent of the second defendant. The third defendant denied that it was obliged to satisfy any judgment obtained by the plaintiff on the grounds that the plaintiff knew or ought to have known that the driving of the first defendant was not covered by an approved policy of insurance.
Mr Justice Lynch said the Court was bound by findings of fact made by the learned trial judge if supported by credible evidence. He considered the judgment of the then Chief Justice, Mr Justice Finlay, in Kinsella v Motor Insurers Bureau of Ireland (unreported, 2 April 1993). In that case the Supreme Court held that the onus was on the defendant to prove that the plaintiff knew or ought to have known that the use of the vehicle was not covered by insurance. The test was subjective and the court had to consider whether the plaintiff, having regard to all the circumstances, knew or should have known. Whether the attitude and conduct of the plaintiff at the time was blameworthy (in so far as the actions of the plaintiff condoned the commission of an offence) was also a consideration for the court.
Mr Justice Lynch summarised the submissions made on behalf of both parties and went on to consider the judgment delivered by the learned trial judge. The learned trial judge held against the plaintiff because she found he had invented a story that the first defendant's mother handed the keys of the car to the first defendant out through a window of her place of work. However, Mr Justice Lynch did not accept that, because the first defendant knew the car keys were under the mat of the unlocked car, the plaintiff therefore knew or should have known the first defendant had no authority to take the car.
The first defendant was then aged 19 years and 5 months and had never held a driving licence. Mr Justice Lynch rejected the contention that the age of the first defendant was evidence from which it could be inferred the plaintiff ought to have known she had no licence. The plaintiff's state of knowledge on that particular night was what the case had to be decided on.
Mr Justice Lynch then considered whether the evidence supported the finding by the learned trial judge that the plaintiff knew or ought to have known that the first defendant had no authority to take the car. He found that there was nothing in the evidence to support the claim that the plaintiff was alerted or should have been alerted to a want of authority on the part of the first defendant. Similarly, her knowing the whereabouts of the keys and that the car was unlocked would not suggest to the plaintiff a want of authority.
In relation to the finding by the learned trial judge that the plaintiff had lied, Mr Justice Lynch said it was a regrettable fact that litigants sometimes tended to exaggerate and grossly distort the facts. However, that reprehensible conduct did not establish as a matter of probability that the plaintiff knew the first named defend ant had no authority to take the car. Because he lied, the learned trial judge inferred that he knew more than he admitted. However the inference did not follow. By attempting to improve his case the plaintiff had created some evidence against himself where there was none. Mr Justice Lynch was of the view that the plaintiff, who was home on holidays from Scotland at the time, would have taken any form of transport open to him that night without ever considering the propriety of it. The test was a subjective one and the onus of proof was on the third defendant. If it were a fact that the first defendant had no authority to take the car, it appeared strange that neither the second defendant or his wife were called as witnesses to corroborate it or to explain why the second defendant had allowed judgment be entered against him in default.
Mr Justice Lynch allowed the appeal holding that the conclusions of the learned trial judge were not supported by the evidence and that the third defendant had failed to discharge the onus of proof as to the state of knowledge of the plaintiff on that night. The plaintiff was entitled to a declaration that the third defendant was obliged to satisfy any judgment obtained by the plaintiff against the first and second defendants pursuant to the provisions of the MIBl Agreement.
MR JUSTICE MURPHY, in a dissenting judgment, said that the learned trial judge heard conflicting evidence as to what exactly happened on the night of the accident. On all three matters of conflict, the learned trial judge preferred the evidence of the first defendant to that of the plaintiff and clearly found her a more credible witness. The learned trial judge then considered why the plaintiff had given that version of events to the court. It followed that once the court rejected his version of how the first defendant's mother had a conversation with her at a window before she took the car, the plaintiff knew the first defendant did not have specific permission to drive the car.
Mr Justice Murphy considered what the plaintiff's view of the situation was on the night. It was unlikely that he believed the first defendant had permission so extensive as to authorise the taking of the car without some prior consultation with her parents, particularly when in doing so the parents themselves were deprived of its use. The young age of the first defendant and the fact that the plaintiff himself did not have such a general permission were also relevant factors. Similarly, he could not conclude that where the keys were left under the mat of the unlocked car a right was conferred on each member of the family to use the vehicle at any time or permission granted to use it.
The test was what the plaintiff should reasonably have known at the time and in that context Mr Justice Murphy thought his untruthfulness was significant. The proper inference to draw from his behaviour was that he was apprehensive the court would conclude he knew the first defendant did not have permission to drive the car and was not insured to drive it that night. His behaviour that night was an example of the "blameworthiness" which had been referred to by Mr Justice Finlay in Kinsella. He was as enthusiastic as the first defendant to get to their intended destination and was prepared to take advantage of the fact that the second defendant's vehicle was nearby.
Mr Justice Murphy was of the opinion the learned trial judge was entitled to infer that the plaintiff was prepared to travel in the car when he knew or should have known that the first defendant was not insured to drive.
Solicitors: Gallagher McCartney (Donegal) for the plaintiff/ appellant; O'Connor & Co (Galway) for the third defendant/ respondent.