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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mair v. Payne & Anor [2004] ScotCS 178 (13 July 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/178.html Cite as: [2004] ScotCS 178 |
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LADY SMITH in the cause DARREN MAIR (AP) Pursuer; against DARRON PAYNE Defender: And THE MOTOR INSURERS' BUREAU Minuters ________________ |
Pursuer: Christine; Lawford Kidd
Defender: Thomson; Simpson & Marwick, W.S.
13 July 2004
Introduction
[1] On 12 May 2000, the pursuer was travelling as a pillion passenger on a motorcycle being driven by the defender. There was an accident, the pursuer was injured and the defender was subsequently convicted of a contravention of Section 3 of the Road Traffic Act 1988 in respect of the accident. He was not insured at the relevant time nor did he hold a licence to drive the motorcycle. At the time of the accident, the pursuer was aged 21 years and the defender was aged 19 years. [2] The pursuer has raised an action against the defender in which he seeks damages for the injuries sustained by him in the accident. Since the defender was uninsured, the action was intimated to the minuters.The Issue
[3] The minuters' obligation to satisfy compensation claims arising through the fault of an uninsured driver is regulated by the terms of an agreement dated 13 August 1999 between them and the Secretary of State for the Environment, Transport and the Regions. Clause 5.1 of that agreement provides:" Subject to clauses 6 to 17, if the claimant has obtained against any person in a court in Great Britain a judgment which is an unsatisfied judgment then MIB will pay the relevant sum to, or to the satisfaction of, the claimant or will cause the same to be so paid."
Clause 6.1(e) provides:
" a claim which is made in respect of a relevant liability described in paragraph (2) by a claimant who, at the time of the use giving rise to the relevant liability was voluntarily allowing himself to be carried in the vehicle and, either before the commencement of his journey in the vehicle or after such commencement if he could reasonably be expected to have alighted from it, knew or ought to have known that -
...................
(ii) the vehicle was being used without there being in force in relation to its use such a contract of insurance as would comply with Part VI of the 1988 Act, ..."
The Evidence
[5] The only evidence led in support of the pursuer's case came from the pursuer himself. He said that he had known the defender for about two or three years prior to the accident, having become acquainted with him through frequenting a mountain bike shop where the defender worked. They became friends. He was asked whether he had socialised with the defender and he said that they socialised on cycle meets involving ten or more people. There was not, he said, a lot of talking on these occasions as they were all cycling. However, he did share a house with the defender for a period of approximately four or five months in 1999, the end of that period being sometime in or around October 1999. The house was owned by a man called David Richardson. He said that he had discussed motor cycling with the defender on occasions but not often. [6] In examination in chief, he said that he had had no reason to think that the defender had no license or insurance. In answer to questions in cross-examination, by way of explanation he said that the defender had shown him photographs of himself on motorbikes. However, he also said that he did not think that the defender had a licence when he first got to know him, namely when the defender was 16 years old. He was never aware of the defender having lessons or obtaining a licence. He commented that there were some things that you don't mention seeming to imply that, in the case of the defender, obtaining a motorbike license would have been one of them. He gave no explanation as to why the defender would not have told him. [7] The pursuer said that shortly after he moved into the flat where the defender was living, there were discussions about the defender buying a motorcycle. He did so about three weeks prior to the accident. That was after the pursuer had moved out of the flat. However, the pursuer continued to see the defender socially on two to three nights per week. He reluctantly accepted that the pursuer was more than an acquaintance and was in fact a friend at that time. He was aware of the pursuer acquiring a motorbike. He said that he wasn't curious at all about it and that he never asked the pursuer to take him out on it. As regards the events of the day of the accident, he said that the defender telephoned him. They had been discussing going fishing for a week or so. They needed to get bait. The defender said to him that he had his bike at that time and "basically told me he'd come and pick me up. That's when the accident occurred." He and the defender were no longer friends. [8] For the minuters, the defender and three other witnesses gave evidence. They were the pursuer's ex-girlfriend (Deborah Murray), the defender's girlfriend (Tracy Ann Byers), and a friend of the defender's (Stephen Primrose). The picture presented by all of them was of there having been a very close friendship between the pursuer and the defender that carried on for a period after the accident, a relationship that was rather closer than the pursuer had conceded in evidence. [9] The defender explained that he was keen on motorbikes. Prior to the accident, he was working in Glasgow which involved a time-consuming bus journey at the beginning and end of each day. Travelling by motor bike was going to be much quicker. His plan was to purchase a motorbike prior to getting lessons as they would be cheaper if he had his own bike. Accordingly, he bought the motorbike in about April 2000. He used up all his savings to do so and he began saving again so as to be able to afford lessons. Once he had acquired the bike, the pursuer repeatedly asked him to take him out on it. He couldn't remember precisely how many times the pursuer had asked him to do so. He said, at one point, that the pursuer did so on three or four occasions but he also said that he lost count of how many times the pursuer asked him. It was, he said, just a general thing. His indication of three or four times was just an average and it was maybe more often. The defender said that his response to the pursuer's request, on each occasion, was that he was not going to use the motorbike until he got a licence and insurance. The pursuer would say things to him in an effort to coax him to take him out such as they could take a run, he wouldn't get caught and if he did get caught then all that would happen to him would be what had happened to the pursuer himself when he was caught driving his girlfriend's car without a licence and without insurance. The implication seemed to be that the pursuer sought to minimise the nature of the punishment that was liable to ensue if the defender was caught. Shortly prior to the accident, the pursuer had said to him "who cares if you've got no insurance" or words to that effect. The pursuer pestered him and eventually, he cracked and agreed to take him out. The defender was adamant that the pursuer was fully aware he had no licence, no insurance and had never had a motorcycle lesson. He said that "we were stupid young boys and we done something we both knew we shouldn't have done." [10] All four of the minuter's witnesses gave evidence that, together with the pursuer, they were all socialising at David Richardson's house on the night prior to the accident. They said that the pursuer was asking the defender to take him out on his motorbike and that the defender was refusing, saying that he was not going out on the bike because it was not insured. The pursuer was trying to persuade the defender by suggesting that they go up the back roads out of the way, through the glen or something similar, where it would be quiet. Tracy Ann Byers intervened because she was sick of hearing the pursuer trying to persuade the defender to take him out on the motorbike. She said, in front of the pursuer, to the defender, that it would not be happening and that nobody was going out on the bike until it was insured. Stephen Primrose thought that the pursuer eventually succeeded in persuading the defender to agree to take him out but it was possible that the others had not heard as there were several conversations taking place and the radio was on. It seemed to be common knowledge amongst the three witnesses that the defender had neither licence nor insurance to ride the motorbike that he had bought. [11] The weather on the day of the accident was fine. Deborah Murray, at whose house the pursuer had stayed overnight, heard the pursuer telephone the defender. She heard him seek to persuade the defender to take him out on the bike. She got the impression, from what the pursuer was saying, that the defender was, at first, refusing to do so. She heard the pursuer saying to the defender that he knew he was not insured but that if they went up the back roads it would be alright. She got the impression that the defender relented. Deborah Murray's credibility was challenged on the basis that she was being vindictive towards the pursuer because their relationship had broken up. She firmly refuted any such suggestion indicating that if she had wanted to get back at the pursuer she would have reported him to the police because he "battered" her. She did not, however, do so because she simply wants to put the relationship behind her.Submissions for the Pursuer
[12] Counsel for the pursuer invited me to grant decree of declarator in terms of the second conclusion. The onus of proof lay on the minuters. The pursuer had given a clear account. The contradictory view advanced by the defender and his witnesses should be regarded with caution given their obvious loyalties and the potential for influence as between them. The pursuer's account should be accepted. Even if it was not accepted as truthful, the pursuer should succeed on the basis that, on the evidence, it was not possible to choose between the two accounts.Submissions for the Minuters
[13] Counsel for the minuters accepted that the onus lay on them to establish that the case fell within the exception in paragraph 6(1)(e) to which I have already referred. This was, he said, a case where the pursuer had actual knowledge that the defender had no insurance. If I was not satisfied that the pursuer had actual knowledge, this was a case of wilful turning away from the facts regarding the defender's lack of insurance and the exception would still apply (White v White [2001] 1 WLR 481; Akers v Motor Insurers Bureau [2003] Lloyds Rep 427). [14] The pursuer was not a credible witness. His evidence was intrinsically unlikely. His story did not stack up. He was firmly contradicted by all the other witnesses in the case and it had never been suggested to them that they had colluded in any way. The pursuer and defender had known each other for an appreciable period before the accident dating back to when the defender was about 16 years old. The pursuer had accepted that the pursuer did not have a motorbike licence at that stage. His underplaying of his relationship with the pursuer showed that he realised he was aware of there being a weakness in his case and affected his credibility and reliability. The defender's explanation for buying a motorbike prior to having lessons and obtaining a license and insurance was credible. It was unchallenged. The witnesses gave a compelling account of the pursuer persuading the defender to take him out on the motorbike. They gave a clear picture of the pursuer trying to wheedle and persuade the defender. Such discrepancies as there were between their accounts were entirely understandable given the nature of events, the lapse of time, and the comparative youth of the witnesses. Their evidence should be accepted with the result that decree should not be pronounced in terms of the second conclusion.Decision
[15] Having considered the evidence, I have reached the conclusion that the minuters have established that the pursuer was well aware of the fact that the defender was not insured to ride his motorbike at the time of the accident. I agree that the account given by the defender and the three other witnesses led on behalf of the minuters was a compelling one. There were in fact few discrepancies in the evidence and some apparent ones may not have actually been discrepancies at all. For example, it was suggested that there was a discrepancy as between Deborah Murray's evidence that the defender appeared to relent on the telephone on the morning of the accident and Stephen Primrose's evidence that he did so the previous night. It is, however, not impossible that the defender agreed, in Stephen Primrose's hearing, to take the pursuer out in the course of the social occasion the night before the accident yet when it came to the following day was again reluctant to do so and needed further persuasion. [16] The defender gave his evidence in a straightforward and honest fashion. The account he gave of two foolish young boys, close friends who, between them, determined upon a stupid and risky course of action was entirely credible. The account given by his girlfriend to the effect that she disliked motorbikes, didn't like the thought of her boyfriend going out on motorbikes let alone with anybody else and that she became exasperated at the pursuer's nagging of the defender to take him out on a bike for which the defender had no licence and no insurance was also entirely credible. Stephen Primrose's account of his recollection of the events of the night before the accident was equally clear and credible. Particularly persuasive was the account given by Deborah Murray. She was 38 years old at the time of the events under discussion and impressed me as being a sensible and articulate witness . She was significantly more mature in outlook than the other witnesses. Despite suggestions made to her to the contrary, she did not appear to bear any grudge against the pursuer. Her explanation that she simply wanted to leave behind her the problems that she had had in her relationship with him made sense as did her assertion that if she had wanted to "get back" at him, the way to do it would have been to report him to the police for having assaulted her. Further, on the evidence, she had no reason to be supportive of the defender. Her relationship with the pursuer had continued for about a year after the accident and it had been the defender's driving of the motorbike that was responsible for the pursuer's injuries. It was not suggested that she had remained friendly with the defender. Quite simply, she had no reason to lie.[17 Conversely, I did not feel able to accept the pursuer's account of events. His explanation in chief was sparse and lacking in content. There was internal inconsistency as between the picture he sought to present of socialising only with the defender by going on mountain bike rides with a large group of other people when nobody did much talking and that of moving in to live with the defender for some four or five months. The obvious inference from the latter was that they had become close friends and it was with considerable reluctance in cross-examination that the pursuer accepted there had been friendship between them. Further, it was simply not credible, as the pursuer sought to assert by way of bald statement, that he had no curiosity at all about the motorbike that the pursuer had purchased. These two young men had first become friends because of a mutual interest in mountain bikes, they had become close friends and it seemed to me to be inevitable, in the absence of particular explanation, that the pursuer would have a natural curiosity about his friend's new acquisition. The pursuer had the air of a witness who was trying to give away as little as possible. His explanation that he thought that the defender had a licence because he had seen photographs of him on motorbikes and the defender had told him that he owned bikes in the past, seemed contrived. The defender denied that there were any photographs of him on motorbikes although there may have been photographs of motorbikes in his mother's house, as she was an enthusiast. Further, the pursuer's admission that he realised that when he first got to know the defender he would not have had a motorbike licence and the picture presented in evidence of the pursuer and defender being close friends throughout the period between then and the accident conflicted with the pursuer's assertion that he thought that the defender had a licence even although he had never said anything to him about having succeeded in obtaining one.
[18] In all circumstances I am, accordingly, satisfied that the minuters have established that the pursuer knew, at the time of the accident, that the defender was not insured. That being so, the pursuer is not entitled to decree of declarator in terms of the second conclusion. I will sustain the second plea in law for the minuters and pronounce decree of absolvitor.