Bowes (Philip) v Motor Insurers' Bureau of Ireland

• Jurisdiction: Ireland
• Judgment Date: 30 July 1999
• Date: 30 July 1999
• Docket Number: 321/98 & 8/99,[S.C. Nos. 321 of
• Court: Supreme Court

BETWEEN:

Philip Bowes

PLAINTIFF/APPELLANT

and

THE MOTOR INSURERS BUREAU OF IRELAND

DEFENDANT/RESPONDENT

HAMILTON CJ

DENHAM J

KEANE J

MURPHY J

BARRONJ

321/98 & 8/99

THE SUPREME COURT

Abstract:

Contract - Insurance - Road Traffic - Motor Insurance Bureau of Ireland (MIBI) agreement - Plaintiffs in car which collided with uninsured motorcyclist - Motorcyclist fatally injured - Plaintiffs sued MIBI for damages - Basis for liability of MIBI - Preliminary issue - Whether direct claim against MIBI was maintainable - Whether plaintiffs should have instituted proceedings against user of vehicle giving rise to claim - Whether MIBI estopped from raising delay as defence - Civil Liability Act, 1961 (No 41) Section 9 - European Council Directive (84/5/EEC) - European Council Directive (90/232/EEC).

The plaintiffs had been injured in a road traffic accident involving their car and a motorcycle. The owner of the motorcycle was fatally injured and was uninsured. The plaintiffs instituted their claim solely against the Motor Insurance Bureau of Ireland (MIBI). The MIBI pleaded in their defence that the claim should have been instituted against the estate of the deceased and was now in fact statute barred. This defence was accepted in the High Court and the claim was dismissed. On appeal the Supreme Court in a majority verdict reversed this decision and held that despite the fact that proceedings against the deceased were statute barred a valid claim had been instituted against the MIBI and must be dealt with.

1 Judgment of Mr Justice Francis D Murphy delivered the 30th Day of July 1999

2 These proceedings (and the related action of Hart and the Motor Insurers Bureau of Ireland) concern the interpretation of an agreement in writing dated the 21st day of December 1988 made between the Minister for the Environment and the Motor Insurers' Bureau of Ireland (the 1988 Agreement), the facts concerning a tragic accident which occurred on the 25th November 1993 and the manner in which a claim by Phillip Bowes (the Plaintiff) arising out of that accident was processed.

3 The history of the accident as provided by the Plaintiff may be stated shortly. On the 25th November 1993 he was driving a Rover estate car, the property of Wrigley Company Limited on a public highway near Lismullen, Navan, County Meath. There was one passenger in the car, namely, Mr Andrew Hart (the Plaintiff in the related action and hereinafter referred to as 'the Passenger'). A motor cycle the property of and driven by Mr Darby J Kennedy (the Deceased) came around a bend and collided with the car driven by the Plaintiff. The Plaintiff and the Passenger were injured in the collision and the motor car was damaged. Tragically Mr Kennedy was fatally injured.

4 THE PROCESSING OF THE CLAIM

5 By letter dated the 22nd day of July 1994 Messrs Stuart Stein & Co., Solicitors on behalf of the Plaintiff and the Passenger, wrote to the Motor Insurer' Bureau of Ireland (MIBI). In that letter the Solicitors identified their clients, the date of the accident; its location and then went on to say as follows:

6 "Our above named clients suffered personal injuries as a result of being involved in a collision with an uninsured motor cyclist.

7 We should be obliged if you would forward the usual questionnaire to us for completion."

8 On the 3rd August 1994 the MIBI replied enclosing the questionnaire sought and seeking from the Solicitors any medical or garda reports together with details of the insurance held by the claimants.

9 On the 12th day of August 1994 the questionnaire was returned duly completed together with a garda report and witness statements. It appears from the completed questionnaire that the Deceased had an address at Neilstown, Bohermeen, Navan, County Meath but that the motor cycle that he was driving at the time of the accident had a UK registration, namely, VFJ 432X.

10 In their letter to the MIBI, returning the questionnaire the Solicitors sought the co-operation of the MIBI in the following terms:

11 "We await hearing from you with your nomination of handling office."

12 In their letter of the 14th September 1994 to the MIBI the solicitors referred to the earlier correspondence and commented as follows:

13 "Proceedings have been prepared and we are anxious to press ahead with service. Please let us have your nomination of handling office/solicitors to accept service."

14 It appears that a meeting took place between representatives of the MIBI and the Solicitors on the 30th September 1994 at which the representative of the MIBI explained that there would be some delay in "appointing a handling office"because the motor cycle in question had

15 been registered in England. In any event letters were exchanged between the MIBI and the Solicitors on the 30th September 1994 in which the Solicitors sought a response to earlier inquiries and the MIBI explained their difficulties as aforesaid.

16 On the 15th November the Solicitors referred once more to their earlier letter and sought a response from the MIBI. On the 30th November 1994 MIBI wrote to the Solicitors in the following terms:

17 "We refer to previous correspondence and wish to advise that we have now passed the papers in this case to Cornhill Insurance Plc, Russell Court, St Stephen 's Green, Dublin 2, for investigation and protection of the Bureau's interests."

18 On the 20th December Cornhill Insurance wrote to the Solicitors stating that the file had been passed to them and went on to say;

19 "We are unable to comment on liability at this stage as our investigations are continuing. In the meantime we confirm we are arranging to have your client medically examined and we will forward appointment details to you in due course".

20 The letter included other details in relation to the proposed examination and the final communication exhibited clarified further details in relation to the examination.

21 Proceedings were then instituted by the Plaintiff and the Passenger naming the MIBI as the sole Defendant. Those proceedings were commenced by plenary summons dated the 15th

22 February 1996. In the Statements of Claim, each dated the 21st of February 1996, the history of the accident as recorded above was set out in some detail together with the particulars of the injuries sustained by the Plaintiff and the negligence alleged against the Deceased. In relation to the involvement of the MIBI it was asserted as follows:

23 "The Defendant is a Corporation with registered offices at 3 South Frederick Street, Dublin 2 and is sued in respect of public duty under agreement with the State effective the 1st day of January 1989 in respect of the negligence, breach of duty and breach of statutory duty of one Darby J Kennedy. deceased, formerly of Neilstown, Bohermeen, Navan. Co. Meath in and about the driving, care, maintenance and control of a motor cycle the property of and then driven by the said deceased, in the circumstances hereinafter described."

24 In their defence the MIBI contended that:

25 "the Plaintiff's claim herein is misconceived, the Motor Insurers' Bureau of Ireland having neither refused compensation to the Plaintiff nor having offered compensation which the claimant considers to be inadequate."

26 Without prejudice to that contention the MIBI raised further defences which included the following:

27 "2 ... any liability of the Motor Insurers' Bureau of Ireland to the Plaintiff is subject to the condition that the Plaintiff has a valid and enforceable claim against the alleged wrong-doer, Darby Kennedy deceased.

28 3 The Defendant denies that it has any liability to the Plaintiff arising from the negligence or breach of duty, including statutory duty, of Darby Kennedy deceased as any claim against the said Darby Kennedy is statute barred by virtue of the provisions of Section 9(2) of the Civil Liability Act 1961, proceedings not having been instituted within two years of his death."

29 After the proceedings had been set down for hearing an application was made on behalf of the Defendant for the determination of the issue as to whether the claim against the MIBI was maintainable given that any claim against the said Darby Kennedy was statute barred.

30 The affidavit sworn by Mr Stuart Stein in relation to that motion contains evidence material to these proceedings. In paragraph four of his affidavit Mr Stein explained why no proceedings had been instituted against the estate of the Deceased in the following terms:

31 "I was aware from discussions with the Plaintiff that the deceased motor cyclist was a young man, and as it appeared he was uninsured I believed that it would be a waste of time and expense going about establishing whether or not any representation to his Estate had been raised or taking any steps of my own by which his Estate could be constituted to provide a defendant in proceedings."

32 Again in paragraph eleven of his affidavit Mr Stein said:

33 "I had at all material times, acted in the belief firstly, that the notification to the Motor Insurers 'Bureau of the facts of the Plaintiff's claim and circumstances of the accident, which notification was made by registered post was in itself sufficient to prevent any cause of action becoming barred in law for any reason. The issue of proceedings against the deceased motor cyclist's estate involved difficulties which appeared to unnecessary and impractical in the circumstances of the claim. As appears from the correspondence and memoranda to which I referred, I had forborn to issue [sic.] proceedings earlier than February 1996 because of the uncertainty in the matter of representation of the Motor Insurers Bureau's interests, and I had no reason to believe that the Bureau's request for delay or forbearance could prejudice the claim. I believe, and have always believed, that it is sufficient for the proper constitution of the Plaintiff's claim and these proceedings,...