Janvier Tumusabeyezu v Daniel Muresan
| Jurisdiction | Ireland |
| Judge | Mr Justice Maurice Collins |
| Judgment Date | 07 July 2021 |
| Neutral Citation | [2021] IECA 191 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No 2020/249 |
and
[2021] IECA 191
Donnelly J
Haughton J
Collins J
Record No 2020/249
THE COURT OF APPEAL
Road traffic accident – Relief – Insurance – Plaintiff seeking relief – Whether the first defendant had told the plaintiff that he was uninsured to drive
Facts: The plaintiff/appellant, Mr Tumusabeyezu, suffered serious injuries in a road traffic accident which occurred in the vicinity of Mullingar, County Westmeath on 26 June 2017. He was travelling as a back seat passenger in a vehicle owned by and being driven by the first defendant/respondent, Mr Muresan, when the vehicle went out of control and crashed into the ditch. Following the accident the plaintiff was brought to Mullingar Hospital where he was diagnosed with a perforated bowel and intra-peritoneal haemorrhage secondary to mesenteric tears. His injuries required emergency surgery and the appellant remained in hospital until 5 July 2017. The plaintiff issued proceedings on 27 February 2019. As is indicated by the fact that the Motor Insurers Bureau of Ireland (the MIBI) was named as a co-defendant, the first defendant’s driving was not covered by any policy of insurance at the time of the accident. There was no dispute about that or about the fact that his vehicle was not taxed and that the first defendant did not hold a driving licence at the time of the accident. A single defence was delivered on behalf of both defendants. It admitted that the accident was caused by the negligence of the first defendant. However, it then pleaded that the plaintiff was not entitled to any relief “in circumstances where he voluntarily entered and allowed himself to travel as a passenger in the vehicle then owned and being driven by [Mr Muresan] at a time when he, the Plaintiff knew that there not in force an approved Policy of Insurance in respect of the use of that vehicle by [Mr Muresan] and in this regard the Defendants relies [sic] upon the provisions of Clause 5.2 of the 2009 Agreement upon which the Plaintiff seeks to rely”. The High Court (Barton J) found that “the question at the heart of the controversy between the parties” was whether the first defendant had told the plaintiff that he was uninsured to drive. The Judge resolved that question in favour of the defendants. The plaintiff challenged the findings made by the Judge and the conclusion he reached. It was said that the High Court ought not to have been satisfied that the burden of proof had been discharged. The Court of Appeal, it was said, had a jurisdiction to engage with findings of fact made by the Judge where there were material and/or significant errors in those findings.
Held by Collins J that counsel for the plaintiff had not succeeded in identifying any error on the part of the Judge that might warrant the Court’s intervention. Collins J concluded that the appeal must fail. Collins J noted that the form of order made by the High Court was not the subject of any discussion or dispute. Nonetheless, insofar as it ordered that the plaintiff’s claim be dismissed simpliciter, it was not evident to Collins J how the High Court’s conclusion on the preliminary issue might justify the dismissal of the plaintiff’s claim against the first defendant. It appeared to Collins J that the appropriate form of order to be made was that the plaintiff’s claim should be dismissed against the MIBI, having regard to the High Court’s determination that the plaintiff knew that there was not in force an approved policy of insurance in respect of the use of the first defendant’s Mitsubishi Colt in which the plaintiff was travelling at the time of the accident the subject of the proceedings. Collins J held that he would affirm an order in such terms.
Collins J held that, given that the plaintiff’s appeal had failed, it appeared to follow that the defendants were entitled to the costs of the appeal, to be adjudicated in default of agreement.
Appeal dismissed.
Judgment of Mr Justice Maurice Collins delivered on 7 July 2021
The Appellant, Mr Tumusabeyezu (“ the Plaintiff”) suffered serious injuries in a road traffic accident which occurred in the vicinity of Mullingar, County Westmeath on 26 June 2017. He was travelling as a back seat passenger in a vehicle owned by and being driven by the First Defendant when the vehicle went out of control and crashed into the ditch. Following the accident the Plaintiff was brought to Mullingar Hospital where he was diagnosed with a perforated bowel and intra-peritoneal haemorrhage secondary to mesenteric tears. His injuries required emergency surgery and the Appellant remained in hospital until 5 July 2017.
The Plaintiff issued these proceedings on 27 February 2019. As is indicated by the fact that the Motor Insurers Bureau of Ireland (“ the MIBI”) is named as a co-Defendant, the First Defendant's driving was not covered by any policy of insurance at the time of the accident. There is no dispute about that or about the fact that his vehicle was not taxed and that the First Defendant did not hold a driving licence at the time of the accident.
A single Defence was delivered on behalf of both Defendants. It admits that the accident was caused by the negligence of the First Defendant. However, it then pleads that the Plaintiff is not entitled to any relief “ in circumstances where he voluntarily entered and allowed himself to travel as a passenger in the vehicle then owned and being driven by [Mr Muresan] at a time when he, the Plaintiff knew that there not in force an approved Policy of Insurance in respect of the use of that vehicle by [Mr Muresan] and in this regard the Defendants relies [sic] upon the provisions of Clause 5.2 of the 2009 Agreement upon which the Plaintiff seeks to rely.” The Court was told that the Plaintiff did not seek particulars of this plea, which is rather surprising given the importance of the issue raised by it.
The “ 2009 Agreement “referred to in the Defence is an Agreement dated 29 January 2009 between the Minister for Transport and the MIBI relating to the Compensation of Uninsured Road Accident Victims (“ the 2009 MIBI Agreement”). Since 1955, arrangements have been in place between the responsible Minister and the MIBI for the compensation of persons killed or injured as a result of the negligent use of a vehicle in a public place where the owner or user of the vehicle is uninsured or unidentified. These arrangements have been set out in successive agreements of which the 2009 MIBI Agreement is the most recent. Over the years, the coverage provided by the MIBI has steadily expanded, influenced significantly by successive Motor Insurance Directives adopted by the EU.
Clause 5.2 of the 2009 MIBI Agreement provides as follows:
“Where at the time of the accident the person injured or killed or who sustained damage to property voluntarily entered the vehicle which caused the damage or injury and MIBI can prove that they knew that there was not in force an approved policy of insurance in respect of the use of the vehicle, the liability of MIBI shall not extend to any judgement or claim either in respect of injury or death of such person while the person injured or killed was by his consent in or on such vehicle or in respect of damage to property while the owner of the property was by his consent in or on the vehicle.”
An exclusion for persons who knew “ or ought reasonably to have known” that the driver was uninsured was contained in the MIBI Agreements concluded in 1988 and 2004. The narrower terms of the exclusion contained in the 2009 Agreement were, it appears, prompted by Case C-211/07 Commission v Ireland and more accurately reflect the exclusion that is now to be found in Article 13 of Directive 2009/103/EC.
In light of the pleas set out in the Defence, the Plaintiff was clearly entitled to judgment against the First Defendant (subject to a rather tentative plea of contributory negligence in the Defence suggesting that the Plaintiff may not have been wearing a seatbelt) but there was a significant issue as to whether he could recover from the MIBI. If the MIBI succeeded in establishing that the Appellant “ knew that there was not in force an approved policy of insurance in respect of the use of [Mr Muresan's] vehicle” – and it is common case that the onus of proof lay on the MIBI in relation to this issue – then Clause 5.2 would operate to exclude any liability on the part of the MIBI in respect of any judgment obtained by the Plaintiff against Mr Muresan.
The action came on for hearing before Barton J in the High Court on 3 September 2020. On the morning, the Judge was asked to decide the issue of whether the clause 5.2 exclusion was applicable as a preliminary issue, with the issue of quantum being left over for future determination, and he agreed to proceed on that basis.
I should at this point describe – in brief, and I hope, uncontroversial terms – the broad circumstances in which the accident occurred. A detailed account can be found in the judgment of Barton J that is the subject of this appeal ( [2020] IEHC 555).
The Plaintiff and the First Defendant had attended the Body & Soul Festival at Ballinlough Castle, County Westmeath over the weekend of 23–25 June 2017. Mr Muresan had been asked by another party, a Mr Feeney, to assist with security at the Festival and to recruit others for that purpose. The Plaintiff was one of a number of persons recruited. He had not known the First Defendant previously but they had mutual acquaintances. On either Thursday 22 June or Friday 23 June (surprisingly, the evidence did not clearly establish the position one way or another) the Plaintiff travelled to Waterford in the company...
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...than the disparity between the accounts of Mr. McDermott as described earlier. The observations of Collins J in Tumusabyezu v Muresan [2021] IECA 191 about the limited importance of the demeanor of a witness are understood, but nonetheless in this case it is a factor which is to be taken in......