Pickett v Motor Insurers' Bureau

Under clause 6.1(e) of an uninsured-driver compensation agreement, MIB may rely on the exception only where the injured passenger both consented to being carried at the time of the relevant use and knew, or ought to have known, that the vehicle was uninsured.

The exception must be construed strictly, although the domestic agreement may protect passengers more generously than the minimum required by the Second EEC Motor Insurance Directive 84/5/EEC. Consent can be withdrawn, but a mere objection to the manner of driving is insufficient. An unequivocal request to alight may end consent. Knowledge of the lack of insurance, once acquired, is generally presumed to persist. On the facts, consent was not unequivocally withdrawn.

The appellant was seriously injured while travelling as a passenger in an uninsured car owned by her and driven by Nathan Roberts. She knew that the vehicle was uninsured. Judgment was entered against Roberts, but it was accepted that the judgment could not be enforced, so the appellant claimed against the Motor Insurers’ Bureau under the 1988 agreement.

The High Court dismissed the claim, holding that voluntary entry into the vehicle was sufficient to satisfy the consent element of clause 6.1(e), despite later objections to the driving. The appeal concerned whether the appellant was still allowing herself to be carried at the time of the use which caused the liability.

Majority

1. Appeal dismissed. Chadwick LJ delivered the leading judgment and May LJ agreed. Clause 6.1(e) contains two conditions: consent to being carried at the time of the use causing liability, and knowledge of the vehicle’s lack of insurance at the specified stage of the journey.
2. The exception is to be construed strictly. The Second EEC Motor Insurance Directive 84/5/EEC permits exclusion of compensation for a person who voluntarily entered an uninsured vehicle knowing that it was uninsured, but it establishes a minimum level of protection. The domestic agreement could therefore be more generous to passengers. The exception is directed at conscious collusion and requires a high degree of personal fault before compensation is withheld. The statutory context under the Road Traffic Act 1972 did not alter that construction.
3. Consent is assessed at the time of the relevant use and may be withdrawn. There is no presumption that consent, once given, persists. Withdrawal requires an unequivocal repudiation of the common venture. An objection to the manner of driving, or a request merely to stop the vehicle, is insufficient. An unequivocal request to be allowed to alight, coupled where necessary with a request to stop for that purpose, may end consent once the driver passes the next reasonable opportunity to let the passenger out.
4. The majority concluded that the appellant’s objections to the handbrake turns and her request to stop, which was linked to concern for her safety and the dog, did not amount to an unequivocal demand to alight or to dissociate herself from the use of the vehicle. She therefore remained a consenting passenger who knowingly participated in the uninsured use, and the exception applied. A possible owner-driver issue arising from Cooper v Motor Insurers’ Bureau [1985] QB 575 was not taken and was expressly left undecided.
5. Because the judge may have applied the wrong test, the Court of Appeal was entitled to draw its own inference from the substantially unchallenged evidence under the overriding objective in CPR 1.1. Remission or retrial was unnecessary.

Dissent

Pill LJ agreed that the agreement could be more generous than the Directive and that consent was to be assessed at the time of the specific use causing the accident. He would have treated the appellant’s emphatic request to stop, together with unclipping her seat belt to get out, as an implicit and unequivocal withdrawal of consent. He would have allowed the appeal, or alternatively remitted it.

1. Court of Appeal (Civil Division): Appeal from the High Court was dismissed by majority on 22 January 2004. The judgment is reported at [2004] EWCA Civ 6.
2. High Court of Justice, Queen’s Bench Division: Mr Justice Richards dismissed the claim against the Motor Insurers’ Bureau by an order dated 27 February 2003.