Looking under the bonnet at permission

This case review was co-authored by Adam Dalgleish, Trainee Solicitor, Edinburgh.

A recent judgment from the Court of Session tests the issue of whether permission was granted to another to drive a vehicle subsequently involved in a collision with a pedestrian.

The Court found that the vehicle owner had not granted permission to the driver, absolving him from liability to repay insurers for the compensatory damages they had paid to the injured pedestrian.

Background

Argyll McCoist was gifted with an Audi A1 from his father in January 2016. The car was for Argyll’s sole use, although Mr McCoist remained the owner and registered keeper. It was initially insured with Argyll as the policyholder, however, this was subsequently cancelled by the insurer in February 2016 due to a speeding violation.

Mr McCoist Senior claimed that he expressly forbade his son from driving the car in July 2016. Nevertheless, the car remained on the road and driven by Argyll. In November 2016, the car was uplifted by Argyll from a garage following repairs. Argyll continued to drive the car despite being uninsured.

On the evening of 3 December 2016, Argyll was involved in a collision with a pedestrian, causing severe injuries to the pedestrian. Argyll fled the scene, however, he was later traced by the police and charged.

The injured pedestrian obtained decree against Argyll for the sum of £200,000 in damages plus interest and expenses, an action which Aviva Insurance Ltd, the pursuers, became involved in due to their interest under sections 145 and 151(2) of the Road Traffic Act 1988. The pursuers subsequently moved to recover the sum paid out from both defenders by virtue of section 151(8). Argyll consented to the decree, and the case proceeded against Mr McCoist Senior.

Decision

The issue at the centre of the civil case was whether or not Mr McCoist Senior had permitted his son to use the car on the road while uninsured. Lord Menzies heard from the pursuers that permission was inferred as being granted as the car was kept at the house where Argyll lived with his mother. There was also a lack of documentary evidence showing the prohibition. Despite Argyll’s mother being unaware he was uninsured, the pursuers relied on Lloyd-Wolper v Moore [2004], specifically that a permission obtained by misrepresentation is still a permission in terms of section 151(8).

Counsel for the first defender submitted that “causing” and “permitting” are two distinct and different concepts. Argument was put forward that the section 151(8) statutory liability is not based upon a failure to take reasonable care to prevent use without insurance; failure to take steps to prevent the use of a vehicle could only constitute permission if it could be inferred from the failure that the other person was allowed to use the vehicle.

Lord Menzies considered the evidence in light of the section 151(8) test, and found that the pursuers had failed in satisfying the test. There was no evidence to show that Mr McCoist Senior’s prohibition had been withdrawn and he had expressly told his son on several occasions not to drive the car.

Comment

The case highlights the problem of where permission can be seen as inferred from the circumstances, even where there has been no express permission. The key words under the section 151(8) test are “cause” or “permit” and an insured simply failing to ensure that another person does not drive the car does not constitute liability. A high bar has accordingly been set by the Court.