DPP v Donnelly

JurisdictionIreland
JudgeMr. Justice Fennelly
Judgment Date23 July 2012
Neutral Citation[2012] IESC 44
CourtSupreme Court
Date23 July 2012

[2012] IESC 44

THE SUPREME COURT

Denham C.J.

Hardiman J.

Fennelly J.

O'Donnell J.

McKechnie J.

Appeal no: 355/2009
DPP v Donnelly
IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947

Between

DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor
-and-
KEITH DONNELLY
Accused

ROAD TRAFFIC ACT 1961 S56(1)

ROAD TRAFFIC ACT 1961 S56(3)

ROAD TRAFFIC ACT 2002 S23

ROAD TRAFFIC ACT 1961 S56(1)

EEC DIR 72/166

EEC DIR 84/5

COURTS OF JUSTICE ACT 1947 S16

EEC DIR 72/166 ART 3(1)

EEC DIR 84/5 ART 2(1)

ROAD TRAFFIC ACT 1961 S56(1)(A)

ROAD TRAFFIC ACT 1961 S56(1)(B)

ROAD TRAFFIC ACT 1968 S53

ROAD TRAFFIC ACT 1961 S76

ROAD TRAFFIC ACT 1961 S68(1)

MAXWELL'S INTERPRETATION OF STATUTES 12ED P29

DPP v MOOREHOUSE 2006 1 IR 421

DPP (IVERS) v MURPHY 1999 1 IR 98

ROAD TRAFFIC ACT 1961 S68

Criminal law - Case stated - Driving without insurance - Liability of 'vehicle insurer' - Whether the accused was guilty of driving without insurance in circumstances where an approved policy of insurance existed in relation to the vehicle but the accused was not a named driver on that policy - Road Traffic Act, 1961 section 56(1).

Facts Two questions came before this court on foot of a Case Stated from the Circuit Court regarding the appeal by the accused against his conviction for driving without insurance contrary to section 56(1) and (3) of the Road Traffic Act, 1961 as amended. The vehicle in question was owned by the accused's father and was insured under a policy of insurance, issued by AXA Insurance Limited to the accused's father. The accused's father and his wife were named drivers on the policy of insurance but the accused who was driving the vehicle with his father's consent at the relevant time was not named on the policy of insurance. At the hearing before the Circuit Court it was submitted on behalf of the accused that an offence contrary to s. 56 is committed only when a motor vehicle is used in a public place in circumstances where an insurer is not liable for any injury or damage incurred by a third party as a result of the negligent use of the vehicle. The accused argued that an insurer is liable for any injury or damage caused to a third party as a result of the negligent use of that vehicle when, as in this case there is in force an approved policy of insurance. It was further submitted that pursuant to Council Directive 72/166/EEC and Second Council Directive 84/5/EEC that an insurer is precluded from limiting cover to the use of a vehicle by named persons, to refuse to compensate third party victims of an accident caused by the insured vehicle. The prosecutor submitted that the insurer, by way of contract with the insured, was entitled to restrict cover to named users of the vehicle. His Honour Judge Teehan stated two questions for the decision of this Court pursuant to s. 16 of the Courts of Justice Act, 1947. However, the Court was asked to answer question two only if it gave an affirmative answer to the first question. Question one asked: "In section 56(1) of the Act of 1961 does reference to a Vehicle Insurer being liable for injury caused by the negligent use of a vehicle include liability to pay damages to, or to satisfy judgment obtained by a third party claimant pursuant to section 76 of the said Act"? Counsel on behalf of the accused argued that s. 56 was a penal provision and ought to be construed strictly. Essentially it was argued on behalf of the accused that if the vehicle insurer/insurance company was liable on foot of the policy of insurance in existence to satisfy an award of damages in favour of a third party arising out of the negligent use of the vehicle which was the subject of that policy of insurance then the accused was not be guilty of driving without insurance.

Held by the Supreme Court; Fennelly (Denham CJ, Hardiman, O'Donnell, McKechnie JJ) in answering the first question in the negative: That the first question essentially asked whether the 'vehicle insurer', namely AXA Insurance Ltd, would have been liable for any injury or damage caused to a third party by the negligent driving of the accused or a named driver on the relevant date. The answer is that the 'vehicle insurer' would not have been liable in those circumstances. The 'vehicle insurer' would certainly have been liable for his negligent driving, if it had been the owner of the vehicle. However the liability of an insurer, in the event of injury caused by the negligent driving of an insured person, is to indemnify the latter. The duty is owed to the insured, whose liability the insurer is bound to meet and is not owed directly to the injured party. The liability to the injured party remains the liability of the insured person. Section 68 of the Road Traffic Act, 1961 put the matter beyond doubt. Furthermore, the plain legal meaning of the word 'liable' was that a 'vehicle insurer' was liable as a matter of law to pay damages to an injured party for the consequences of its own acts, including acts of the drivers of vehicles which it owns for which it is vicariously liable. The insurer was liable in that way only when it owned the vehicle. The language in the section 56 of the Act of 1961 was clear and unambiguous.

1

JUDGMENT of Mr. Justice Fennelly delivered the 23rd day of July 2012.

2

Judgment Delivered by Fennelly J. [Nem diss]

3

1. At the hearing of his Circuit Court Appeal from his conviction in the District Court for driving without insurance, Mr Keith Donnelly (whom, for convenience, I will describe as "the appellant") advanced legal points, including a possible point of European Union law, which now come before this Court on foot of a Case Stated. The essential problem was that the appellant was driving his father's car with consent, but he was not a named driver on the policy.

4

2. The appellant was convicted, on his plea of guilty, by order of the District Court dated 28 th February 2008 and appealed to the Circuit Court.

5

3. The prosecution was brought under s. 56(1) and (3) of the Road Traffic Act, 1961 as amended by s. 23 of the Road Traffic Act, 2002. It is sufficient to quote s. 56(1) of the Act of 1961. The amendment in 2002 related only to penalty. The other subsections cover matters which do not arise in this case. Several parts have been amended by Statutory Instruments adopted to give effect to European directives. Subsection (1) provides:

6

2 "(1) A person (in this subsection referred to as the user) shall not use in a public place a mechanically propelled vehicle unless either a vehicle insurer, a vehicle guarantor or an exempted person would be liable for injury caused by the negligent use of the vehicle by him at that time or there is in force at that time either-

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(a) an approved policy of insurance whereby the user or some other person who would be liable for injury caused by the negligent use of the vehicle at that time by the user, is insured against all sums without limit (save as is hereinafter otherwise provided) which the user or his personal representative or such other person or his personal representative shall become liable to pay to any person…………………… [deletion S.I. 248 2008]by way of damages or costs on account of injury to person or property caused by the negligent use of the vehicle at that time by the user, or

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(b) an approved guarantee whereby there is guaranteed the payment by the user, or some other person who would be liable for injury caused by the negligent use of the vehicle at that time by the user, of all sums without limit (save as is hereinafter otherwise provided) which the user or his personal representative or such other person or his personal representative shall become liable to pay to any person (exclusive of the excepted persons) by way of damages or costs on account of injury to person or property caused by the negligent use of the vehicle at that time by the user."

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4. The facts as found were that on the 27 th of January 2007, at Fairgreen, Carlow, a public place, the appellant was driving a motor car, registered number 98 D 26878, the property of his father, Eugene Donnelly. The vehicle was insured under a policy of insurance issued to Eugene Donnelly by AXA Insurance Limited in respect of which the insured and his wife were named drivers, but the appellant was not. The appellant was stopped by a Garda and asked for his insurance. He opted to produce it at Athy Garda Station. The certificate of insurance actually produced did not, for the reason stated, cover driving by the appellant.

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5. At the hearing before the Circuit Court, counsel for the appellant submitted that the charge should be dismissed for the following reasons:

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(i) an offence contrary to the section is committed only where a motor vehicle is used in a public place in circumstances where an insurer is not liable for any injury or damage incurred by a third party as a result of the negligent use of the vehicle;

12

(ii) where an approved policy of insurance is in fact in force the insurer is liable for any injury or damage caused to a third party as a result of the negligent use of the vehicle;

13

(iii) pursuant to the Council Directive 72/166/EEC and the Second Council Directive 84/5/EEC an Insurer is precluded from relying on statutory provisions or contractual clauses, including provisions of a policy, which limit cover to the use of a vehicle by named persons, to refuse to compensate third-party victims of an accident caused by the insured vehicle.

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(iv) As an approved policy of insurance was in force on the vehicle at the time, and the appellant had the consent of the owner of the vehicle, the insurer was not entitled to rely upon the fact that the appellant was not a named driver under the policy, at the time of the said use, in resisting a claim brought by...

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4 cases
  • Ighovojah v District Judge Bryan Smyth
    • Ireland
    • High Court
    • 7 April 2016
    ...the insurer, as a matter of law, has no tortuous or contractual liability to the injured party. As Fennelly J. noted in DPP v. Donnelly [2012] IESC 44: '[23.] A motor insurance policy is a policy of indemnity. The liability of an insurer, in the event of injury caused by the negligent driv......
  • M (M) v Min for Justice and Others (No 3)
    • Ireland
    • High Court
    • 23 January 2013
    ...346, (Unrep, Hogan J, 5/9/2011); NN v Minister for Justice [2012] IEHC 499, (Unrep, Clark J, 28/11/2012); Okunade v Minister for Justice [2012] IESC 44; NS v Secretary of State for the Home Department (C-411/10 and C-493/10) (Unrep, ECJ, 21/12/2011); Transocean Marine Paint Association v Co......
  • Gerard Mongan v Martin Mongan & The Motor Insurer's Bureau of Ireland
    • Ireland
    • High Court
    • 29 May 2020
    ...meaning of those words in s. 56 (1) although counsel for the plaintiff helpfully cited the observation of Fennelly J. in DPP v. Donnelly [2012] IESC 44, at para. 21, that the injury with which the subsection is concerned is injury caused by “negligent driving” of a vehicle. That case was no......
  • DPP (At the Suit of Garda Elizabeth McDonagh) v Sherlock
    • Ireland
    • High Court
    • 26 June 2020
    ...version can now be corrected. 11 As Fennelly J. (Denham C.J., Hardiman, O'Donnell and McKechnie JJ. concurring) noted in DPP v. Donnelly [2012] IESC 44 (Unreported, Supreme Court, 23rd July, 2012) at para. 23, “A motor insurance policy is a policy of indemnity.” The insurer is liable not to......

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