Wilkinson v Fitzgerald & Anor

An insurer’s statutory obligation to satisfy a judgment for personal injury cannot be rendered ineffective by immediate recovery proceedings against the injured victim under section 151(8) of the Road Traffic Act 1988. Exclusions from compulsory cover must be construed strictly. A provision which would leave a passenger wholly uncompensated creates an impermissible excluded class of victim. Domestic legislation must be interpreted, so far as possible, consistently with a directive, but that duty does not permit an artificial or strained rewriting of the statute. Issues of the passenger’s own conduct remain matters for contributory negligence.

The claimant was seriously injured while travelling as a passenger in a car driven by the first defendant. The claimant, a named driver under the policy, had permitted the first defendant to drive although he knew the first defendant was not insured under it. Judgment was entered against the driver.

The insurer accepted that section 151 required it to satisfy that judgment, but relied on section 151(8) to recover the payment from the claimant. The preliminary issues concerned the insurer’s obligation to indemnify the driver and its right of recovery. The central questions were the compatibility of that recovery right with the Second Motor Insurance Directive and the permissible scope of conforming interpretation.

1. The insurer was obliged under sections 151(2) and 151(5) of the Road Traffic Act 1988 to satisfy the judgment obtained against the uninsured driver.
2. In the first indent of article 2(1) of the Second Motor Insurance Directive, authorisation meant authorisation for insurance purposes. The first defendant lacked that authorisation.
3. Immediate recoupment of the judgment sum from the injured passenger would leave him wholly uncompensated and create an impermissible excluded class of victim.
4. The Marleasing principle required interpretation, so far as possible, in the light of the wording and purpose of the directive. It did not authorise an artificial or strained construction or judicial rewriting.
5. Section 151(8) could not be applied so as to negate the insurer’s obligation under section 151(5). The insurer therefore had to indemnify the first defendant but could not recover the amount from the claimant.