Law of Compulsory Motor Vehicle, The
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CHAPTER 6
Civil liability
Introduction
6.1 The RTA 1988 s 143 forbids a person using a motor vehicle without having an insurance or security as required by the Act. Further, the RTA 1988 regulates that a person must not cause or permit any other person to use a motor vehicle on a road unless there is insurance or security as required by the Act. Section 143 (2) of the RTA 1988 provides that “if a person acts in contravention of subsection (1) above he is guilty of an offence.” In addition to this statutory sanction for contravening the insurance obligation under the RTA 1988, in Monk v Warbey 1 the Court accepted a claim in tort against the person who breached the RTA 1930 s 35 (now the RTA 1988 s 143) by allowing an uninsured person to use the vehicle. 6.2 As analysed throughout this book the scheme, in a nutshell, operates as follows: a victim of a motor vehicle accident may claim the loss suffered as a result of the accident from the user of the vehicle if the user negligently caused the injury. Ideally, the legislation aims to ensure that the driver is insured so that the driver’s financial position will have no impact on the compensation of the third party’s loss. If the user is insured there is a right of direct action against the insurer either under section 151 of the RTA 1988 or under the European Communities (Rights against Insurers) Regulations 2002/3061.2 Moreover, although it may not be as significant in MTPL insurance as it is in other types of liability insurance contract, where the assured is insolvent the Third Parties (Rights Against Insurers) Act 2010 (TPA 2010) allows the victim to bring a direct claim against the assured’s insurer. Because of the availability of the first two options, neither of which requires the assured’s insolvency as a pre-requisite to the direct claim against the insurer, the TPA 2010 is unlikely to be needed in the motor insurance context.3 If the user is uninsured or untraced, the victim may seek compensation from the MIB.4 The broad interpretation of the scope of the compulsory MTPL insurance has been referred to in other chapters of this book. Under these circumstances one may question why there may be a need to discuss if seeking damages by a civil law action from the person who permitted an uninsured person to use the vehicle is available.Page 91
Is breach of statutory duty actionable?
6.4 Whilst previously it had been disapproved,6 it was held in Couch v Steel that where there is a breach of a statutory duty resulting in damage to an individual, an action for damages will lie.7 In Couch v Steel 8 a seaman of a merchant ship sued to recover damages for injuries sustained by him by reason of the omission of the defendant, a shipowner, to provide proper medicines for the ship’s company. The action was successful. The ruling in Couch v Steel was described as a liberal approach to the imposition of civil liability for breach of a statutory duty.9 Further, by way of construction, the purpose of imposing a criminal remedy by the statute justified a right of civil action for damages.10 6.5 The Courts, however, have not always been in favour of a right of civil action for damages where a statute provided a specified remedy for its non-compliance.11 In Atkinson v The Newcastle and Gateshead Waterworks Company 12 Lord Cairns expressed grave doubts that Couch v Steel created a generally applicable rule. His Lordship questioned whether the authorities cited by Lord Campbell in Couch justified the broad general proposition that appeared to have been there laid down, that, wherever a statutory duty was created, any person who could show that he had sustained injuries from the non-performance of that duty, could bring an action for damages against the person on whom the duty was imposed.13 Denison J was more dismissive about the right of civil action in Stevens v Evans 14 where the judge said, “It is a rule ‘that upon a new statute which prescribes a particular remedy; no remedy can be taken, but the particular remedy prescribed by the statute.’”15Page 92
- (1) where upon the true construction of the Act it is apparent that the obligation or prohibition was imposed for the benefit or protection of a particular class of individuals, as in the case of the Factories Acts and similar legislation. This exception is construed in the light of the scope and purpose of the statute and in particular for whose benefit it is intended. When a duty of this kind is imposed for the benefit of particular persons there arises at common law a correlative right in those persons who may be injured by its contravention.
- (2) where the statute creates a public right (ie a right to be enjoyed by all those of Her Majesty’s subjects who wish to avail themselves of it) and a particular member of the public suffers “particular, direct, and substantial” damage “other and different from that which was common to all the rest of the public.”17
Motor insurance
6.7 In the MTPL insurance context the Court of Appeal in Monk v Warbey 18 allowed the traffic accident victim’s claim for damages against the owner of the vehicle. The real reason for the Court’s finding for the claimant in Monk v Warbey was said to be Parliament’s implied intention that victims of negligent driving should not go uncompensated with the introduction of compulsory insurance.19 In other words the Court of Appeal sought to “add force and life to the cure and remedy according to the true intent of the makers of the Act.”20 6.8 In Monk v Warbey, at the time of the accident, M was driving the car on behalf of K who borrowed the car from her fiancé, W. W was insured against third party risks, but both K and M were uninsured. Consequently, the claimant had two defendants who were not in a position to pay those damages and who were uninsured. The absence of insurance also meant that there was no right of action under the then Third Parties (Rights Against Insurers) Act 1930.21 The last option available for the victim was, therefore, a civil action against W for permitting an uninsured person to use the vehicle in contravention of section 35 of the RTA 1930 (now the RTA 1988 s 143). The cumulative effect of the objective of the Act, the overwhelming consideration of protection of the victim against impecunious users of motor vehicles, the public nature of interests that the 1930 Act aims to protect, persuaded the Court of Appeal to approve the claimant’s action.22 The Court of Appeal found nothing in the Act to show that a personal action was precluded by reasonPage 93
Prima facie a person who has been injured by the breach of a statute has a right to recover damages from the person committing it unless it can be established by considering the whole of the Act that no such right was intended to be given. So far from that being shown in this case, the contrary is established. To prosecute for a penalty is no sufficient protection and is a poor consolation to the injured person though it affords a reason why persons should not commit a breach of the statute.