Ighovojah v District Judge Bryan Smyth
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 07 April 2016 |
| Neutral Citation | [2016] IEHC 505 |
| Court | High Court |
| Docket Number | [2014 No. 354 JR] |
| Date | 07 April 2016 |
[2016] IEHC 505
THE HIGH COURT
JUDICIAL REVIEW
Noonan J.
[2014 No. 354 JR]
AND
Crime & Sentencing – S. 56(1) of the Road Traffic Act, 1961 – Disqualified from driving – Insured – Approved policy of insurance – Dismissal
Facts: The applicant in the present case sought an order of certiorari for quashing the applicant's conviction by the respondent for an offence of driving without insurance contrary to s. 56(1) of the Road Traffic Act, 1961, and the associated offence of failing to produce a certificate of insurance. The applicant contended that an insurance policy was in place and no offence had been committed under s. 56 of the said Act as the user of the vehicle was insured within the meaning of said section. The core issue in the case was whether the applicant was insured at the material time by an approved policy of insurance.
Mr. Justice Noonan dismissed the application of the applicant. The Court observed that when the insurance policy was taken by the applicant, he was already disqualified from driving and holding a license. The Court found that the policy of insurance did not operate to insure the applicant as it could not be an approved policy of insurance under s. 56(1) of the 1961 Act.
In this judicial review application, the applicant seeks an order of certiorari quashing his conviction by the first named respondent on the 14th of May, 2014, of an offence contrary to s. 56 (1) of the Road Traffic Act 1961, colloquially known as driving without insurance. He was also convicted of failing to produce a certificate of insurance.
On the 18th of April, 2013, the applicant was disqualified from driving. On the 17th of June, 2013, while the applicant was so disqualified, he took out a policy of motor insurance with the Royal & Sun Alliance insurance company ('RSA'), which covered the period from the 17th of June, 2013, until the 30th of November, 2013. The insurance policy was subject to the following proviso:-
'Provided that the person driving holds a licence to drive such a vehicle, or having held such a licence is not disqualified from holding such a licence.'
It is clear that the applicant did not disclose his disqualification to RSA when he took out the insurance policy. On the 23rd of June, 2013, while driving on the public highway, the applicant was stopped by a member of An Garda Síochána and a demand made from him to produce his insurance. When he eventually did so, he produced the RSA certificate which on its face covered the relevant time but contained the stipulation above referred to.
Section 56 (1) of the Road Traffic Act 1961 provides:-
'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—
(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 (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, ...'
The essential point made by the applicant is that s. 56 is directed towards ensuring that a person injured by the negligent use of a mechanically propelled vehicle in a public place shall not be left without compensation. Accordingly, where there is an insurance policy in place which enjoins the insurer, in this case RSA, to compensate an injured third party, no offence is committed under s. 56 as the user of the vehicle is 'insured' within the meaning of the section. It is immaterial to criminal liability under the section that the insurer may have a right over against the insured by virtue of breach of the policy condition to recover the amount of any compensation paid from the insured.
As is apparent from the wording of s. 56, the essential issue is whether or not the applicant was 'insured' at the material time by an 'approved policy of insurance'.
The essence of insurance is indemnity. A contract of insurance is a contract, privately entered into between insured and insurer, whereby the insurer agrees, in consideration of the payment of a premium by the insured, to indemnify the insured against a loss or a liability on the happening of an event.
This is explained by Mr. Austin Buckley in his authorative work 'Insurance Law'– 3rd edition at page 170:-
'4-01 The principle of indemnity is at the very foundation of insurance law. It is the bedrock on which the insurance industry has developed since the judgment of Brett L.J. in Castellian v. Preston [1883] 11 QBD 380:
'In order to give my opinion upon this case, I feel obliged to revert to the very foundation of every rule which has been promulgated and acted upon by the courts with regard to insurance law. The very foundation, in my opinion, of every rule which has been applied to insurance is this, namely that the contract of insurance contained in a marine or fire policy is a contract of indemnity only, and that this contract means that the assured, because of a loss against which the policy has been made, shall be fully indemnified but shall never be more than fully indemnified. That is the fundamental principle of insurance, and if ever a proposition is brought forward which is at variance with it, that is to say, which either would prevent the assured from obtaining a full indemnity, or which would give to the assured more than a full indemnity, that proposition must be wrong.'
Insurance contracts are intended to provide the insured with an indemnity against his loss, be it loss of or damage to...
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