In the recent Circuit Court appeal of Gerard Mongan v Martin Mongan and the Motor Insurer’s Bureau of Ireland (MIBI), Mr Justice Denis McDonald examined the liability of the MIBI for injuries sustained by the plaintiff on 16 June 2013. The plaintiff alleged that he was standing on the footpath outside his home when the defendant, who was an uninsured driver, drove his car in the direction of the plaintiff, hitting him and knocking him to the ground. The defendant was intoxicated at the time of the incident and was known to the plaintiff. The plaintiff suffered injuries to his left knee as a result of the incident. The Circuit Court judge found in favour of the plaintiff against both defendants. The MIBI appealed the decision. They argued that because the vehicle was used as a weapon, for the purpose of an assault and battery as opposed to a means of transport, they were not obliged to indemnify the injured party.

Irish legislation and the MIBI

The MIBI referred to the MIBI Agreement of 29 January 2009 which requires an indemnity to be provided to an injured party as a result of an uninsured driver where the vehicle is required to be insured. They placed emphasis on the wording of section 56(1), Road Traffic Act 1961 (1961 Act) where it is stated that a mechanically propelled vehicle cannot be used in a public place unless an insurer “would be liable for injury caused by the negligent use of the vehicle”. They argued that the use of the word “negligent” in section 56 indicated that they could not be liable in this case in circumstances where an assault and battery was a deliberate act.

A deliberate act?

The plaintiff submitted that the onus was on the MIBI to prove it was a deliberate act in order to succeed in their appeal. The Court accepted this and found that the MIBI was correct in submitting that the vehicle was being used as a weapon to attack the plaintiff.

Wholly unconvincing

The plaintiff’s own evidence was that he did not believe that the defendant intended to hit him. The Court did not accept this evidence as it was at odds with all of the witness statements and medical reports which were also relied upon by the plaintiff.

In discussing the findings of fact, the Court referred to the plaintiff’s medical reports which all seemed to consistently indicate that the act was deliberate. As the reports had been agreed, the Court said that the plaintiff cannot rely on reports in support of his damages claim and exclude parts which may be detrimental for the liability aspect of his claim. The Court said that the plaintiff’s evidence in relation to the defendant’s driving not being a deliberate attempt to injure him was “wholly unconvincing”.

Directive 2009/103/EC and Irish legislation

The Court analysed the 1961 Act and concluded that although it pre-dates Directive 2009/103/EC (the 2009 Directive), it must be read in conjunction with the obligations arising under the 2009 Directive. The 2009 Directive deals with the obligation to insure against civil liability for the use of motor vehicles and the enforcement of the obligations to insure against such liability. The Court accepted that the Directive does not allow for intoxication to be used as a means of excluding cover for claims by innocent third parties. The Court noted that it is clear that a victim of a road traffic accident must be compensated unless the circumstances fall within one of the specific exclusions[1] from cover recognised under the 2009 Directive. Put simply, the objective of the 2009 Directive is the protection of innocent injured third parties. The Court essentially said that irrespective of how the innocent third party was injured, they should have a means of recovering compensation for their injuries. This, of course, does not undermine an insurers ability to decline cover where a driver is intoxicated or falls within another exemption under a policy of insurance.

Based on a lengthy analysis of the 2009 Directive and European case law, as well as the relevant Irish legislation, the Court concluded that the injury suffered by the plaintiff as a consequence of the uninsured driver must be covered by a motor insurance policy. The Court was of the view that reference to “negligent use” in section 56, when read in light of the 2009 Directive, was intended to cover “not only careless driving, but also reckless driving and driving with intent to injure”. In this regard, the MIBI’s appeal was dismissed.

Conclusion

This case provides an interesting analysis of the law relating to the use of vehicles and the obligations of both the MIBI and insurers to cover deliberate acts of violence against innocent third parties. Even though the plaintiff’s evidence was found to be wholly unconvincing, it demonstrates that as long as the injured third party is “innocent”, they will most likely succeed in an action to recover for their injuries against either an insurer or the MIBI.

For more information, please contact a member of our Insurance & Risk team.