In Doyle v Lyons and MIBI [2011/2522P] the plaintiff who was injured whilst a passenger in an uninsured car failed to convince the High Court that he did not know that the vehicle was uninsured. The MIBI called evidence from a Garda officer that the first defendant who drove the uninsured vehicle had recently been disqualified from driving for 25 years. The officer gave evidence, that at the sentencing hearing the Plaintiff (Doyle) was present and in fact had jeered as the judge passed sentence. The High Court accepted the evidence of the Garda Officer and held the Plaintiff had in fact known that the first Defendant was uninsured.

Defence Argument

The defence of the second defendant put the plaintiff on full proof of all matters, denying negligence and alleged contributory negligence on the part of the plaintiff. In particular, it claimed that it was not liable for the injuries suffered by the plaintiff on the following ground:-

“Strictly without prejudice to the foregoing, the second defendant relies upon clause 5.2 of the agreement dated the 31st March, 2004 between the second named defendant and the Minister for Transport and pleads that it bears no liability to the plaintiff in circumstances where, at the time of the accident, he knew or ought to have known that there was in force an approved policy of insurance in respect of the use of the vehicle in which he was travelling then being driven by the first defendant.”

It was accepted by the MIBI that following the decision of the Court of Justice in Commission of the European Communities v. Ireland (Case 211/07) [2008] E.C.R. 33. that the inclusion of the words “or ought reasonably to have known” at paragraph 5.2 of the Motor Insurers’ Bureau Of Ireland (MIBI) Agreement 2004 was in breach of Council Directive 84/5/EEC of 30th December, 1983 and therefore, the MIBI must prove actual knowledge on the part of the plaintiff that the first defendant was uninsured, in order to avoid liability under Article 5.2 of the MIBI Agreement.

MIBI relied on passages from two judgments, first Kinsella v Motor Insurers Bureau of Ireland [1997] 3 I.R. 586 and Devlin v Cassidy and The Motor Insurers Bureau of Ireland [2006] IEHC 287, a decision of Peart J. delivered on the 31st July, 2006. While it was acknowledged that these cases related to the interpretation of the phrase “or ought reasonably to have known” struck down in Commission v Ireland, counsel relied on certain passages in those judgments. It was submitted that actual knowledge encompasses imputed knowledge as per White v White [2001] 1 WLR 481 and in which such a construction was held to be compliant with the Second Directive. In Kinsella, Finlay CJ. upheld a decision where the trial judge drew inference from the plaintiff’s lack of credibility in other aspects of the case.

Plaintiff’s Argument

Counsel for the Plaintiff argued as regards actual knowledge, that the MIBI must prove actual knowledge on the part of the plaintiff i.e. that at the time of the accident the plaintiff knew that the first Defendant had no insurance. That the test according to Finlay CJ. in Kinsella was a subjective one. Counsel further argued that the second defendant had not proved the plaintiff’s state of knowledge on the evening in question. It was submitted that the first defendant could have been called for that purpose but was not, although she had been listed in the second defendant’s schedule of witnesses. Counsel for the Plaintiff submitted that the court can infer from this that the first defendant did not support the proposition that she was not insured to drive a motor vehicle on the 10th October, 2008.

It was submitted on behalf of the plaintiff that the only evidence tendered by the MIBI was an allegation that the plaintiff was in court on 17th October, 2007 when the first defendant was sentenced. However, there is nothing in the evidence relating to the intervening twelve months which supports actual knowledge on part of the plaintiff. The plaintiff contended that it was entirely speculative to suggest that even if the plaintiff was in court in October, 2007 and witnessed the sentencing of the first defendant, that he had it in his mind twelve months later.

The Decision of the Court

The decision was given by Mr Justice Fullam. The judge acknowledged that since the decision of the European Court of Justice in Commission v Ireland, the defence of an insurer based on a claimant’s knowledge that the vehicle in which he was travelling was uninsured must be proved by actual knowledge.

The court further acknowledged that while it may seem that the MIBI will be faced with an insurmountable task in terms of proving that a plaintiff knew that there was no insurance, there is no reason, in principle, why a court would not be precluded from inferring that a plaintiff knew that there was no insurance on the balance of probabilities citing the House of Lords decision in White v White [2001] 1 WLR 4 81 and in which such a construction was held to be compliant with the Second Directive. Fullam J held that indeed in Kinsella v MIBI, although dealing with the wording of the 1964 MIBI Agreements, Finlay C.J. specifically upheld a trial judge drawing inferences from the plaintiff’s lack of credibility in other aspects of the case.

Fullam J noted that in Devlin v Cassidy and The Motor Insurers Bureau of Ireland [2006] IEHC 287 Peart J. cited the following passage from the judgment of Lord Nicholls in White v. White dealing with the question of imputed knowledge:

“Finally on this particular topic, it is interesting to note the comments of Lord Nicholls in the House of Lords in White v. White [2001] 2 AER. 43 at p.48. He was considering, in the context of the same exclusion clause appearing in the MIBI Agreement in the United Kingdom, the question of what constitutes knowledge for the purpose of the exclusion clause. He states in this regard at p. 48:

“There is one category of case which is so close to actual knowledge that the law generally treats the person as having knowledge. It is the type of case where, as applied to the present context, a passenger had information from which he drew the conclusion that the driver might well be uninsured but deliberately refrained from asking questions lest his suspicion should be confirmed. He wanted not to know (‘I will not ask, because I would rather not know’). The law generally treats this state of mind as having the like consequences as would follow if the person, in my example the passenger, had acted honestly rather than disingenuously. He is treated as though he had received the information which he deliberately sought to avoid. In the context of the directive that makes good sense. Such a passenger as much colludes in the use of an uninsured vehicle as a passenger who actually knows that the vehicle is uninsured. The principle of equal treatment requires that these two persons shall be treated alike. “

There is nothing to distinguish the present plaintiff from the category of person referred to in this passage. The reference to collusion towards the end of the passage has a resonance of what Finlay CJ states in Kinsella , about the blameworthiness of the passenger who is at least condoning the commission of a serious offence, and that a court should accordingly be concerned “to assess as to whether the attitude or conduct of the person concerned at the time of the accident was in this particular sense blameworthy.”

The Court accepted the MIBI contention that “the obvious inference is that the plaintiff is in the category of claimant identified by Lord Nichols in White v. White as a person not wanting to ask because he knew the answer”.

The Court found against the first defendant, uninsured motorist and dismissed the claim against MIBI.

The decision is reported here