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Injury Law - The MIB – still causing problems?

By : Emily Formby

Emily Formby focuses on Pickett v Motor Insurers’ Bureau [2004] EWCA Civ 06 and looks at the Court of Appeal’s consideration of the MIB’s obligation.

Why you should read this case

Ms Pickett’s failure to recover damages under the Compensation of Uninsured Drivers Agreement (the 1988 agreement) despite the circumstances of the accident and the severity of her damages serves as a stark reminder of the additional hurdles placed in the way of a claimant seeking payment of damages for personal injury by the Motor Insurers' Bureau (MIB).

What were the circumstances of the accident?

On 12 July 1999 Ms Pickett was a passenger in a car. It was being driven by her partner, Nathan Roberts. On any view, he drove very badly indeed. He lost control of the car he was driving while doing handbrake turns on a mountainside near Merthyr Tydfil. The road was an old track – a gravel path. Mr Roberts accelerated up the hill, then pulled the handbrake and spun the car. He had to fight to keep control. He did this several times. Ms Pickett described her dog being “flung about” in the back of the car. Ms Pickett had no control over the car. She was an innocent victim of Mr Roberts' negligent driving.

The claim against Mr Roberts

Judgment was entered against Mr Roberts on an 85/15 split. The reduction was due to Ms Pickett's failure to wear a seatbelt. She was severely injured in the accident – she was rendered paraplegic as a consequence of the car plunging into a ditch and overturning.

However, the claim against Mr Roberts could not be enforced. He had no money. Of greater significance, he had no insurance. Accordingly, on 18 January 2002, MIB was added as a defendant to the proceedings. MIB’s obligation to meet the judgment arose pursuant to Clause 2.1 of the 1988 Agreement.

Meeting the claim

The MIB, despite accepting its obligations, declined to meet the unsatisfied judgment. Ms Pickett appealed the decision. She lost at first instance. She appealed again. By a majority (Pill LJ dissenting) the Court of Appeal confirmed the first instance decision that the claim need not be met by the MIB.

Ms Pickett knew the driver had no insurance

Ms Pickett's first problem was that she owned the car. There was no question that she knew the car was not insured. The tortuous argument articulated in Cooper v Motor Insurers' Bureau [1985] QB 575 was not employed on this occasion. The MIB had firmer grounds of dispute. It relied upon Clause 6.1 that sets out the circumstances in which MIB is exempt from meeting an unsatisfied judgment it would otherwise be obliged to meet pursuant to Clause 2. In particular, Clause 6.1(e) which states "at the time of use… the person suffering… bodily injury… was allowing himself to be carried in … the vehicle … if either before the commencement of his journey in the vehicle or after such commencement if he could reasonably be expected to have alighted from the vehicle he (or Ms Pickett) … (ii) knew … the vehicle was uninsured.

Could Ms Pickett have got out of the car?

The broad facts are that following a day out and a drink in the pub, Mr Roberts drove Ms Pickett and her dog up the mountain. There he started to do hand brake turns. Ms Pickett had been in a car while he did this on a previous occasion. That time he had stopped and let her out. On this occasion, despite the dog being flung about in the rear of the car and despite Ms Pickett's protests and requests that he stop, Nathan carried on performing stunts until the car went into a ditch. You may have thought that, once in a car performing stunts, it would be hard to get out of the car unless the driver stopped and let you.

What is “consent to be carried”?

Nonetheless, while being in the car and unable to get out, the crucial question is whether Ms Pickett had consented to be carried in a car, despite knowing it had no insurance.

Consent to be carried can, it was agreed, be withdrawn during the course of a journey. Consent to be carried must be in force at the time of use giving rise to liability - that is at the time of the accident. Knowledge of lack of insurance tends not to change during a journey. Generally a passenger will know if there is insurance in place before a journey starts. Therefore, they will generally have given consent before the journey begins. It is likely therefore, that if a passenger knows there is no insurance in place at the time of the accident, they will have known this at the start of the journey and therefore, by getting in to the car they will have consented.

Can consent be withdrawn?

Sometimes, however, a passenger may only find out during the course of a journey that the driver has no insurance. Once in such a position of knowledge, they will tend not to forget. Consent to be carried may be withdrawn upon finding out that insurance is not in place, but once consent is given or allowed to continue, withdrawal of consent will have to be very clear indeed. Moreover, withdrawal of consent will have to be more than an unwillingness to be carried in a car when the driving is bad; it must be unwillingness to be carried in a car being driven without insurance.

How does this apply to Ms Pickett’s case?

In this case, Ms Pickett certainly knew there was no insurance in place. Therefore, at the start of the drive she must have consented to being carried without insurance. However, before the accident happened, she gave evidence that she had asked Mr Roberts to stop and let her out.

This request that the car stop was not enough. In the opinion of Lord Justice Chadwick supported by Lord Justice May, the request had to be sufficiently clear to be an unequivocal request to stop so she could get out and so end the joint endeavour: she had to want to get out of the car because there was no insurance. Ms Pickett's noted request for the car to stop and clear indication that she was fed-up and frightened and concerned for the dog was not enough. She needed clearly to repudiate the common venture - she had not done so and therefore had not withdrawn consent within the meaning of Clause 6.1(e).

What will happen next?

One may wonder what further indication of a desire to repudiate is required, since Ms Pickett's statement clearly showed she wanted to get out of the car. Unequivocal words seem also to be necessary: “I want to get out of the car because you are driving without insurance”.

In his dissenting judgment Lord Justice Pill urged a more common sense approach. In his view, not only had Ms Pickett made an unequivocal request, he felt that her circumstances were analogous to finding oneself consenting to a drive only to end up on a race track - consent to a different order of driving altogether. He criticised the inferences drawn by his brother judges as to Ms Pickett's intention and belief.

How does this affect dealing with claims?

It is always difficult to bring a claim against MIB. However, make sure:

  1. you have as clear a description as possible about the circumstances of the accident;
  2. if there may be repudiation issues, take an early statement trying to record the exact words used by the Claimant;
  3. if there are other passengers in the car, try to obtain their corroboration of words used;
  4. consider not just the fact of consent or withdrawal of consent but the specific way in which it is done;
  5. don’t despair!