JOHN CLARKE v (1) PHOEBE CLARKE (2) MOTOR INSURERS’ BUREAU (2012) ~ QBD (Judge McKenna) 30/03/2012
The Motor Insurers’ Bureau did not incur a relevant liability for an injury caused by an uninsured driver, as the accident did not occur as a result of use of a vehicle on a public road.
The claimant (C) brought a claim for damages for personal injury against the first defendant (P) and the second defendant, the Motor Insurance Bureau (MIB).
There had been a long-standing family feud between P, who C’s sister-in-law and P’s husband (B), C’s brother. The precise circumstances were in dispute, however on the day C was injured, he encountered P and B on a narrow lane. Their cars were parked on a gravelled entrance to a farm, and a fight ensued. C and his brother-in-law (D) arrived on the scene carrying a variety of weapons, and P and B arrived with their five young children in a 4×4 jeep. At some point, P drove the vehicle onto an adjacent paddock and C was struck by the vehicle. Following that incident all the adult parties, apart from C, were prosecuted. D was convicted after pleading guilty to violent disorder, and P and B were acquitted of grievous bodily harm and affray, respectively, after a two-week trial. C suffered serious injuries and was paralysed.
C brought a claim against P for negligence. P was not insured and C joined the MIB as the second defendant. The court was required to hear the issue of liability as a preliminary issue.
The MIB submitted that
(1) P was acting in self-defence;
(2) C’s claim should be defeated by ex turpi causa as, C was holding a machete and had attacked the jeep with P and her children in it; smashed a car window; used cocaine shortly before the incident; arrived at the scene with a number of weapons; and with D who was later convicted of violent disorder. Those events were inextricably linked to what happened to C;
(3) Under clause 5 of the Uninsured Drivers Agreement, MIB was only liable to satisfy an unsatisfied judgment in respect of a “relevant liability” incurred by the uninsured driver. The Road Traffic Act 1988 Section 145(3)(a) required insurance in respect of liability which was “caused by, or arose out of, the use of the vehicle on a road or other public place”. MIB had no contingent liability in respect of it, as C suffered his injury in the paddock, which was not a road or a public place.
HELD: (1) On the balance of probabilities C had been struck in the paddock and not the gravel area. C had used the machete to strike the jeep and smashed the window. C was hit by the front of the jeep when he was clearly there to be seen, and he was dragged into the paddock. The damage was caused by P. In the absence of evidence, self-defence could not be made out.
(2) The court could not accept MIB’s submissions on ex turpi causa. The cause of C’s injury was the jeep and not C’s involvement with the preceding fracas. C’s conduct was reprehensible, but on the facts, the defence was not made out, particularly with regard to the question of proportionality between C’s and D’s conduct, Gray v Thames Trains Ltd  UKHL 33,  1 A.C. 1339 considered and Clerk & Lindsell on Torts considered.
(3) The gravel road was a public place and the paddock was private. The question was whether C’s injury took place in a public road. The position in the instant case was not dissimilar to Inman v Kenny  EWCA Civ 35,  P.I.Q.R. P18, Inman v Kenny applied. The accident did not occur as a result of use of a vehicle on a public road. The claim was not in respect of relevant liability and the MIB was not required to meet it. (4) Judgment would be entered against P, but dismissed against the MIB.