Gerard Mongan v Martin Mongan & The Motor Insurer's Bureau of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 29 May 2020
• Neutral Citation: [2020] IEHC 262
• Docket Number: [RECORD NO.: CA 454/16],[2018 No. 866 CA]
• Court: High Court
• Date: 29 May 2020

BETWEEN:

GERARD MONGAN

PLAINTIFF

AND

MARTIN MONGAN

AND

THE MOTOR INSURERS’ BUREAU OF IRELAND

DEFENDANTS

[2020] IEHC 262

Denis McDonald J.

[RECORD NO.: CA 454/16]

THE HIGH COURT

CIRCUIT APPEAL

WESTERN CIRCUIT

COUNTY OF GALWAY

Injury – Liability – Damages – Plaintiff seeking damages – Whether the defendant could be made liable for the injuries sustained by the plaintiff

Facts: The second defendant, the Motor Insurers’ Bureau of Ireland (the MIBI), appealed to the High Court from a finding made in favour of the plaintiff, Mr G Mongan, as against the MIBI by the Circuit Court. The principal issue which fell for consideration was whether the MIBI could be made liable for the injuries sustained by the plaintiff as a consequence of an incident which occurred on 16th June, 2013 outside the plaintiff’s home in Renmore, County Galway when the first defendant, Mr M Mongan, who was uninsured, drove his car towards the plaintiff, who was standing on the footpath at the entrance gate to his home, hitting him head-on, knocking him to the ground and injuring his left knee. The MIBI contended that it had no liability in circumstances where it said that the incident arose not as a consequence of the negligent driving of his vehicle by the first defendant but as a result of an assault and battery involving the use by the first defendant of his vehicle as a weapon rather than as a means of transport. The MIBI relied on Clause 4.1.1. of the Motor Insurers’ Bureau of Ireland Agreement dated 29th January, 2009 (the MIBI Agreement) which provided that the obligation of the MIBI to indemnify a party injured by an uninsured driver is solely in respect of liability for injury or death to a person or damage to property which is required to be covered by an approved policy of insurance under s. 56 of the Road Traffic Act 1961. The MIBI contended that s. 56 extends only to liability in respect of the negligent use of a vehicle and does not extend to use with intent to injure. The plaintiff did not accept that there was any evidence that the first defendant used his car as a weapon or that the injuries sustained by him arose as a consequence of the use of a vehicle outside the ambit of s. 56(1). The plaintiff drew attention to a number of English authorities in which the English courts, in the context of s. 203(3)(a) of the Road Traffic Act 1960 (UK) and its successor provisions in 1972 and 1988, had rejected similar arguments to those advanced by the MIBI. The plaintiff also sought to make the case that, even if the first defendant’s use of the vehicle amounted to a deliberate attack on the plaintiff, it was nonetheless a breach by the first defendant of his duty of care to the plaintiff such that it constituted a “negligent” use of the vehicle within the meaning of s. 56 of the 1961 Act.

Held by McDonald J that the MIBI was liable in respect of the injury sustained by the plaintiff as a consequence of the driving of an uninsured vehicle by the first defendant on 16th June, 2013. McDonald J did not believe that this conclusion was affected in any way by the nature of the torts invoked in the Indorsement of Claim on the Personal Injuries Summons; while the torts invoked were confined to negligence, breach of duty and breach of statutory duty (including a breach of s. 53 of the 1961 Act which prohibits dangerous driving), the facts giving rise to liability were clearly spelled out. McDonald J held that no one had been prejudiced by the way in which the case was pleaded and that no one had identified any additional defence or advantage that might have been available to the defendants if the plaintiff had invoked a different tort. McDonald J held that the first defendant was plainly liable to the plaintiff for the injury suffered by him; in such circumstances, having regard to the provisions of Clause 4.1.1. of the MIBI Agreement, s. 56 of the 1961 Act and Directive 2009/103/EC, the MIBI was required to step into the shoes of the first defendant to indemnify the plaintiff.

McDonald J affirmed the findings of the Circuit Court judge on liability, held that the appeal of the MIBI would be dismissed, assessed damages at €35,500 and held that there would be judgment for that sum.

Appeal dismissed.

Judgment of Mr. Justice Denis McDonald delivered on 29 ^th May, 2020

Introduction

1 The principal issue which falls for consideration in this Circuit Court appeal is whether the second named defendant (“the MIBI”) can be made liable for the injuries sustained by the plaintiff as a consequence of an incident which occurred on 16 ^th June, 2013 outside the plaintiff's home in Renmore, County Galway when the first named defendant (who was uninsured) drove his car towards the plaintiff (who was standing on the footpath at the entrance gate to his home) hitting him head-on, knocking him to the ground and injuring his left knee.

2 The MIBI contends that it has no liability in circumstances where it says that the incident arose not as a consequence of the negligent driving of his vehicle by the first named defendant but as a result of an assault and battery involving the use by the first named defendant of his vehicle as a weapon rather than as a means of transport.

3 The MIBI relies on Clause 4.1.1. of the Motor Insurers’ Bureau of Ireland Agreement dated 29 ^th January, 2009 (“the MIBI Agreement”) which provides that the obligation of the MIBI to indemnify a party injured by an uninsured driver is solely in respect of liability for injury or death to a person or damage to property which is required to be covered by an approved policy of insurance under s. 56 of the Road Traffic Act 1961 (“the 1961 Act”). The MIBI contends that s. 56 extends only to liability in respect of the negligent use of a vehicle and does not extend to use with intent to injure.

4 In so far as relevant, s. 56 (1) of the 1961 Act states that a person “shall not use in a public place a mechanically propelled vehicle unless … a vehicle insurer … would be liable for injury caused by the negligent use of the vehicle by him at that time …”. The MIBI places significant emphasis on the use of the word “negligent” in s. 56 (1) and submits that, on the evidence, the actions of the first named defendant are not of a kind which fall within the ambit of the sub-section.

5 The plaintiff does not accept that there is any evidence that the first named defendant used his car as a weapon or that the injuries sustained by him arise as a consequence of the use of a vehicle outside the ambit of s. 56 (1). Counsel for the plaintiff have drawn attention to a number of English authorities in which the English courts, in the context of s. 203 (3) (a) of the Road Traffic Act 1960 (UK) (“the 1960 UK Act”) and its successor provisions in 1972 and 1988, have rejected similar arguments to those advanced by the MIBI here.

6 Counsel for the plaintiff argued that the MIBI bears the burden of establishing that the first named defendant used his vehicle as a weapon. Furthermore, counsel submitted that the evidence on the hearing of the appeal falls far short of establishing that the first named defendant used his vehicle in that way. Counsel emphasised that there was no evidence led at the hearing of the appeal other than the evidence of the plaintiff, his wife and daughter and the investigating Garda (who was not present at the time of the incident).

7 Counsel for the plaintiff also sought to make the case that, even if the first named defendant's use of the vehicle amounted to a deliberate attack on the plaintiff, it was nonetheless a breach by the first named defendant of his duty of care to the plaintiff such that it constituted a “negligent” use of the vehicle within the meaning of s. 56 of the 1961 Act.

8 The first named defendant did not participate in the hearing of the appeal and counsel for the plaintiff suggested that it is significant that the MIBI did not call him as a witness. Counsel argued that adverse inferences should be drawn arising from the failure of the MIBI to call the first named defendant as a witness.

The decision of the learned Circuit Court judge

9 Before going further, I should record that, in the Circuit Court, the learned judge found in favour of the plaintiff as against both defendants. It should be noted that the only appeal before the court is the appeal of the MIBI. The first named defendant did not appeal the finding made against him by the learned Circuit Court judge. The appeal first came on for hearing before me at a sitting of the High Court on circuit in Galway on 1 ^st November, 2019. All of the evidence was heard on that day. However, following the conclusion of the evidence, I indicated to counsel for the parties that further submissions were required in order to address the interpretation and effect of clause 4.1.1. of the MIBI Agreement and s. 56 (1) of the 1961 Act. Thereafter, written submissions on behalf of the plaintiff and the MIBI were furnished to me at the end of February 2020. Subsequently, on 6 March, 2020, I was informed by counsel that they proposed to rest on their written submissions. At that point, I reserved judgment.

Findings of fact

10 Before addressing the legal position, I must, in the first instance, make the necessary findings of fact. In this context, I heard evidence from the following witnesses:

(a) the plaintiff, Mr. Gerard Mongan;

(b) the plaintiff's wife, Mrs. Winifred Mongan;

(c) the plaintiff's daughter, Ms. Amanda Mongan; and

(d) Garda Sean McHugh, the investigating Garda.

11 No witnesses were called by the MIBI. The MIBI instead chose to rely on cross-examination of the plaintiff's witnesses and on the admissions made by those witnesses in the course of their evidence including confirmations given by the witnesses that certain parts of statements made by them previously to Garda McHugh are correct. The MIBI also agreed the medical reports described in para. 12 below...