Power v Guardian Pmpa Insurance Ltd

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 02 February 2007
• Neutral Citation: [2007] IEHC 105
• Court: High Court
• Date: 02 February 2007

[2007] IEHC 105

THE HIGH COURT

No. 3315 P/1998

Power v Guardian PMPA Insurance Ltd

BETWEEN/

JAMES POWER

PLAINTIFF

AND

GUARDIAN PMPA INSURANCE LIMITED

DEFENDANT

CIVIL LIABILITY ACT 1961 S62

ROAD TRAFFIC ACT 1961 S76

ROAD TRAFFIC ACT 1961 S65(1)(a)

ROAD TRAFFIC (COMPULSORY INSURANCE) REGS 1962 SI 14/1962 REG 6(1)

ROAD TRAFFIC ACT 1961 S56(1)

ROAD TRAFFIC (COMPULSORY INSURANCE) REGS 1962 SI 14/1962 REG 6(1)(b)

ROAD TRAFFIC (COMPULSORY INSURANCE) REGS 1962 SI 14/1962 REG 6(1)(a)

ROAD TRAFFIC (COMPULSORY INSURANCE) REGS 1962 SI 14/1962 REG 6(1)(c)

ROAD TRAFFIC ACT 1961 S62(1)

ROAD TRAFFIC ACT 1961 S62(1)(b)

ROAD TRAFFIC ACT 1961 S62(2)

ROAD TRAFFIC ACT 1961 S76(1)

ROAD TRAFFIC ACT 1961 S76(1)(d)

RSC O.91

ROAD TRAFFIC ACT 1961 S76(3)

ROAD TRAFFIC ACT 1961 S76(4)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EEC DIR 90/232

EEC DIR 90/232 ART 6

WHELAN v DIXON 97 ILTR 195

ROAD TRAFFIC ACT 1933 S78

CUNNINGHAM v THORNTON, NATIONAL EMPLOYERS' MUTUAL GENERAL INSURANCE ASSOCIATION LTD UNREP BUTLER 21.7.1972

KING v CORNHILL INSURANCE CO LTD 1993 2 IR 43 1992/7/2212

DELARGY v MIN FOR ENVIRONMENT & ORS UNREP MURPHY 18.3.2005 2005/15/3179 2005 IEHC 94

INTERPRETATION ACT 2005 S5(2)

INTERPRETATION ACT 2005 S6

MCDERMOTT CONTRACT LAW 1ED 2001 PARA 18.18

MCDERMOTT CONTRACT LAW 1ED 2001 PARA 18.19

MCDERMOTT CONTRACT LAW 1ED 2001 PARA 18.75 TO 18.79

LEFEVRE v WHITE 1990 1 LLOYD'S REP 569

Abstract:

Tort - Insurance - Declarations - Road Traffic Act, 1961 - Civil Liability Act, 1961 - Road Traffic (Compulsory Insurance) Regulations 1962 - Whether the relevant vehicle was one constructed primarily for carriage of one or more passengers - Whether the plaintiff was covered by insurance at the time of his accident.

The plaintiff, who sustained serious injuries as a result of a road traffic accident, when he was travelling as a passenger in a vehicle, being driven by his friend, Mr Wheeler, whose insurance was provided by the defendant sought certain declaratory relief, namely; that Mr Wheeler was insured by the defendant to carry the plaintiff as a passenger at the time of the accident in 1991 and further that pursuant to section 76 of the Road Traffic Act, 1961, and section 62 of the Civil Liability Act, 1961, the defendant was bound to indemnify Mr Wheeler in respect of any monies found due by Mr Wheeler to the plaintiff in the personal injury proceedings. The plaintiff also sought a declaration that Mr Wheeler’s vehicle was a vehicle constructed primarily for the carriage of one or more passengers and therefore came within the terms of Regulation 6(1) of the 1962 Regulations, and consequently insurance of passengers in that vehicle was compulsory. The defendant submitted that the plaintiff was not entitled to invoke the provisions of section 62 as Mr Wheeler was neither bankrupt nor deceased. The defendant pleaded that the relevant vehicle was a commercial vehicle and the policy did not cover any liability of Mr Wheeler in respect of the personal injuries sustained by the plaintiff.

Held by Laffoy J. in dismissing the plaintiff’s claim: That the combined effect of sections 56(1) and 65(1) of the RTA 1961 and Regulation 6(1)(b) of the 1962 Regulations was that at the date of the accident insurance cover for passengers was compulsory in relation to vehicles which came within the class of vehicles constructed primarily for the carriage of one or more passengers. Mr. Wheeler’s vehicle, which contained only two seats in the front and no seats in the rear was not constructed primarily for the carriage of one or more passengers and therefore Mr Wheeler was not obliged to have insurance cover against passenger liability. Furthermore, at the time of the accident, the contract between Mr Wheeler and the defendant as evidenced by the policy documentation furnished to him wholly excluded cover for passengers and Mr Wheeler was informed before he signed the notice in relation to passenger cover that no passenger cover was being provided by the defendant.

Reporter: L.O’S.

1 Judgment of Miss Justice Laffoy delivered on 2nd February, 2007

Factual background

2 These proceedings arise out of an accident which occurred on 6th October, 1991, when the plaintiff was 26 years of age. At the time of the accident, he was travelling as a front seat passenger in a Ford Fiesta motor vehicle owned, and at the time being driven, by his friend Mr. Richard Wheeler. The vehicle went out of control and crashed. The plaintiff suffered very severe personal injuries as a result of which he is a paraplegic and will be confined to a wheelchair for the remainder of his life.

3 Mr. Wheeler had a policy of insurance with the defendant in respect of the use of the Ford Fiesta vehicle. On the morning following the accident, his father contacted the defendant to report the accident, to be informed that no passenger cover was applicable under the policy. Mr. Wheeler subsequently completed an accident report form. He was informed by letter dated 27th November, 1991 from the defendant that no passenger cover was provided.

4 In due course, the plaintiff initiated a personal injuries action in this Court under Record No. 2674 P of 1994. Ultimately, apparently following an amendment of the proceedings, there were four defendants to that action: Mr. Wheeler; Henry Ford and Son Limited, the manufacturer of the vehicle; Dermot Kelly & Company Limited, the vendor of the vehicle to Mr. Wheeler; and the Motor Insurers' Bureau of Ireland. In the context of the plaintiff's claim against Mr. Wheeler, Mr. Wheeler's solicitors, Malone and Martin, wrote to the defendant on 26th February, 1993 requesting an indemnity in respect of that claim. By letter dated 9th March, 1993 the defendant informed Mr. Wheeler's solicitors that the policy did not cover passengers. While the response of his solicitors was that Mr. Wheeler was pursuing an indemnity, in fact, Mr. Wheeler did not take any action to challenge the defendant's assertion that there was no passenger cover at that point in time or, indeed, at any time thereafter. Although, apparently, Mr. Wheeler never delivered a defence to the plaintiff's plenary action, it was set down for trial, presumably, against the other three defendants and ultimately was listed for hearing on 25th November, 1997. On that day the plaintiff compromised the action as against the defendants other than Mr. Wheeler, and he received by way of settlement the sum of IR£150,000 together with IR£40,000 contribution towards his legal costs. It would seem that the proceedings against Mr. Wheeler were adjourned generally at the time.

5 In these proceedings, which were initiated by plenary summons which issued on 16th March, 1998, in broad terms, the plaintiff seeks a declaration that Mr. Wheeler was insured by the defendant to carry the plaintiff as a passenger at the time of the accident and that the defendant is bound to indemnify Mr. Wheeler in respect of any monies found due by Mr. Wheeler to the plaintiff in the personal injuries proceedings.

The claim as pleaded

6 On the third day of the hearing, by consent of the parties, I made an order giving the plaintiff liberty to deliver an amended statement of claim and giving the defendant liberty to deliver an amended defence in response to the amended statement of claim.

7 In his amended statement of claim the plaintiff seeks declarations in the following terms:

8 (a) that the defendant is pursuant to the provisions of the relevant policy of insurance and pursuant to the provisions of s. 62 of the Civil Liability Act, 1961 (CLA 1961) "bound to indemnify the plaintiff in respect of any monies ultimately found due" by Mr. Wheeler to the plaintiff in the personal injuries proceedings;

9 (b) that Mr. Wheeler's Ford Fiesta was a vehicle constructed primarily for carriage of one or more passengers;

10 (c) that Mr. Wheeler was insured by the defendant to carry the plaintiff as a passenger in his vehicle on 6th October, 1991; and

11 (d) that pursuant to s. 76 of the Road Traffic Act, 1961 (RTA 1961) the defendant is "bound to indemnify the plaintiff in respect of any monies found due" by Mr. Wheeler to the plaintiff in the personal injuries proceedings.

12 The reliefs at (b), (c) and (d) were first sought in the amended statement of claim.

13 In its defence as originally delivered the defendant objected in point of law that, as Mr. Wheeler was neither bankrupt nor deceased the plaintiff was not entitled to invoke s. 62 of CLA 1961 at all. The defendant further pleaded that the Ford Fiesta was a commercial vehicle which at all material times was not fitted with any seats in the area to the rear of the driver's seat. The defendant admitted that there was a motor insurance policy in force at the time of the accident, being a commercial vehicle policy. However, it was pleaded that the policy did not cover any liability of Mr. Wheeler in respect of personal injuries to passengers arising out of the use of the vehicle. It was pleaded that Mr. Wheeler, at the time of procuring the policy, expressly acknowledged that it did not cover liability for injury to passengers. On that basis the defendant denied the plaintiff's entitlement to the declaration sought or any declaration under s. 62 of CLA 1961. In the amended defence, the defendant denied that Mr. Wheeler's Ford Fiesta was a vehicle constructed primarily for carriage of one or more passengers. It denied the plaintiff's entitlement to the additional declarations pleaded in the amended statement of claim. Finally, it pleaded that the plaintiff had no entitlement to maintain any proceedings against it other than as provided by statute. On the basis of the defendant's written submissions of 12th...