Kyiem Dormer v Jaheim Wilson & Ors

A passenger’s claim is not barred by illegality merely because the driver’s dangerous driving caused the injury. The defence may apply where the passenger intentionally participates in a joint enterprise of dangerous driving and injury is foreseeable. The passenger must have actual or blind-eye knowledge before being treated as knowing that a vehicle was stolen, unlawfully taken or uninsured. Mere carelessness or failure to ask questions is insufficient.

An insurer’s policy exclusion relating to pillion passengers cannot defeat the compulsory third-party cover required by the Road Traffic Act 1988. Such an exclusion must be construed or treated as ineffective to the extent necessary to protect injured third parties.

The Claimant, aged 15, was injured as a pillion passenger on a stolen three-wheeled motorcycle ridden by his 16-year-old uncle. The motorcycle crossed a red light and collided with a blameless car. The Claimant brought proceedings against the rider, the motorcycle’s insurer and the Motor Insurers’ Bureau.

The issues included the illegality defence, the insurer’s liability under sections 145, 148 and 151 of the Road Traffic Act 1988, the effect of the 2015 Uninsured Drivers Agreement, and contributory negligence. The central questions were whether the Claimant knew or had reason to believe that the motorcycle was stolen or uninsured, and whether he had participated in dangerous driving.

1. Knowledge. The relevant test was actual or blind-eye knowledge. Blind-eye knowledge requires a suspicion that the relevant facts exist and a deliberate decision to avoid confirming them. Mere negligence, carelessness or failure to make reasonable enquiries does not amount to knowledge. The Claimant had neither actual nor blind-eye knowledge that the motorcycle was stolen, unlawfully taken or uninsured.
2. Illegality. Dangerous driving by the rider was established. However, the Claimant was a passenger and had not encouraged, still less intended, the dangerous driving. His preference for using an underpass did not amount to encouragement. A joint enterprise of dangerous driving could engage the illegality defence where the passenger intentionally participated and injury was foreseeable, but those facts were absent here.
3. The suggested offences of causing use without insurance and allowing oneself to be carried did not bar the claim. The former was a strict-liability offence and the latter required knowledge that the vehicle had been unlawfully taken. In any event, the policy considerations identified in Patel did not justify denying recovery for the Claimant’s conduct.
4. Compulsory insurance. The insurer was liable under section 151 of the Road Traffic Act 1988. The pillion exclusion was construed as excluding payments to the policyholder, but not payments to injured third parties. Alternatively, it was ineffective under section 148(2)(c), because it restricted cover by reference to the number of persons carried. The insurer therefore had to satisfy the judgment against the rider.
5. The alternative MIB route also succeeded. The motorcycle itself was insured, although the rider was not a named or insured driver. The exclusion concerning knowledge that the vehicle was uninsured therefore did not apply. The Claimant’s damages were reduced by 20 per cent for contributory negligence, comprising the failure to wear a helmet and the joint decision to travel to hospital on an unfamiliar motorcycle after the Claimant injured his ankle. Judgment was entered for the Claimant, with damages to be assessed.

First-instance liability judgment. No prior appellate decision is stated in the judgment.