Motor Brief: latest decisions January 2017

A round up of recent court decisions raising issues relating to disability discrimination on buses, the statutory duty to insure, fixed recoverable costs, consistency with EU law, ex turpi causa in causation and witness exclusion in a fraud case.

A round up of recent court decisions raising issues relating to disability discrimination on buses, the statutory duty to insure, fixed recoverable costs, consistency with EU law, ex turpi causa in causation and witness exclusion in a fraud case.

Bus services: disability discrimination

First Group plc v Paulley [18.01.17]

When the claimant had attempted to board one of the company's buses, a passenger occupied the wheelchair space with a buggy containing a sleeping child. A notice in the space said, “Please give up this space for a wheelchair user”. The driver asked the passenger to move but she refused. The company's policy was that, if a non-wheelchair user refused to move when requested, nothing more would be done. The claimant alleged that the company had failed in its duty to make reasonable adjustments to its policies to avoid disadvantage to disabled persons. The judge found that the company could have required, rather than requested, non-wheelchair users to vacate the space. He awarded damages. The Court of Appeal held that the requirement was not reasonable.

The Supreme Court held that:

  • The bus company had not failed to comply with its positive duty towards disabled people (including wheelchair users).
  • The law cannot enforce basic decency and courtesy. The bus company cannot create such an obligation on passengers by the terms of their published wheelchair policy.
  • The judge at first instance had not required a policy of forcible ejection. Requiring the other passenger(s) to get off the bus would go too far and could lead to confrontation and violence.
  • The company could not be criticised for not making the notice more peremptory.
  • However, where a driver concluded that a refusal of a request to vacate was unreasonable, it was justifiable to require some further step by the driver. This included stopping the bus for a few minutes with a view to “pressurising or shaming” the recalcitrant non-wheelchair user(s) to move.

Contact: Richard West

Liability: statutory duty to insure

Sahin v Havard & Riverstone Insurance [30.11.16]

The claimant’s car collided with a car hired by the first defendant, but driven by X with her permission. X had no insurance and was untraceable and the hire company went into liquidation. Default judgment was obtained against the first defendant for allowing X to drive without insurance under s.143 of the Road Traffic Act 1988 (the Act). The Court of Appeal decided that the second defendant (the hire company’s insurers) was not liable to the claimant:

  • The first defendant’s liability was not required to be covered under s.145(3)(a)of the Act: when she allowed X to use the car this did not constitute her “use” of it. Section143 distinguishes between permission to use and use which would not otherwise be necessary.
  • The first defendant’s liability was not covered under the second defendant’s policy. It only covered damage caused by the insured or anyone using the car with its permission and X did not have the hire company’s permission.

Contact: Nicola Hammerton

Fixed recoverable costs: limiting the scope

Qader and others v Esure Services Ltd [16.11.16]

The case is a conjoined appeal in respect of two claims – Qader v Esure and Khan v McGee – both of which begun life in the Claims Portal. Both claims exited the Portal following denials of liability. However, due to allegations of fraud, they were allocated to the multi-track and questions arose with regard to costs entitlement.

The court of first instance and the first-tier appeal judge found that the costs of the case still fell within the fixed costs regime (even though it was subsequently allocated to the multi-track). The Court of Appeal found unanimously for the claimant, reversing the decisions of the courts below - even though those decisions were correctly based on the unambiguous rules as they presently stand. The Court of Appeal has found that the rules must be a drafting error and urged the rewriting of them.

Read more: Fixed costs not applicable to multi-track claims started in the portal

Contact: Martin Cox

Fixed costs: stage 3 costs

Bird v Acorn Group [11.11.16]

The case involved a public liability claim, which settled after it had been listed for a disposal hearing. The key issue was the appropriate level of fixed costs. At first instance, the Judge ordered that, as the claim had been listed for disposal, the fixed costs recoverable under Part 45.29 of the CPR were those in column 3 of Table 6D – namely the full amount claimed of £7,915. The defendant argued that fixed costs should be limited to those under column 1 (which represented a difference of £2,840).

Following a leapfrog appeal, the Court of Appeal found unanimously for the claimant and upheld the decision of the lower court in awarding the claimant the full stage 3 fixed costs.

Read more: Fixed costs: stage three costs where disposal hearing listed

Contact: Ian Davies

RTA abroad: consistency with EU law

Moreno v Motor Insurers’ Bureau [03.08.16]

In 2011 the claimant, who lives in England and Wales, was on holiday in Greece. She was on the verge of a road when a car left the road and struck her, causing serious injuries.
The car was registered in Greece. The Greek equivalent of the MIB considered that the vehicle was uninsured and that the driver was responsible for the accident. The claimant made a claim against the MIB under Regulation 13 of the Motor Vehicles Regulations 2003.

Upholding the first instance decision, the Supreme Court held that the law by which liability is to be determined is the law of Greece. The scheme set out by the applicable EU Motor Insurance Directives was clear. It is not up to individual member states to provide for compensation in accordance with any law that the state may choose. Consistency was key, and as such the Directives required that compensation be determined by reference to the law of the state of the accident.

Read more: RTA abroad: consistency with EU law, for now

Contact: Rachel Moore

Settlement: fraud

Hayward v Zurich Insurance Company plc [27.07.16]

The claimant sued his employers for damages for work-related injuries in 1998. 1999 video surveillance evidence of the claimant suggested that he was exaggerating his injuries. The defence alleged that this was for financial gain. In 2003, the claim settled. In 2005, the claimant’s neighbours gave statements suggesting he had recovered from his injuries by 2002. In 2009, the insurers sued the claimant in deceit.

The Supreme Court set aside the settlement. The claimant’s fraudulent misrepresentations had induced the insurer to settle at a level far higher than it would have done, had it known the misrepresentations were false. There was no need for the insurer to have believed that the misrepresentations were true; it was entitled to set aside the award because it did not know that they were false. Suspicion, or a qualified belief that a misrepresentation had been made, does not prevent an insurer from setting aside the award.

Read more: Fraudulent claimants: no hiding place in a compromise

Contact: Martin Stockdale

Causation: ex turpi causa upheld

Beaumont and O’Neill v Ferrer [19.07.16]

The defendant was a licensed taxi driver carrying six people. When the taxi stopped, three of the group ran off without paying. The defendant drove on and as the taxi turned a corner, one of the claimants (Beaumont) tried to get out of the moving taxi and sustained a serious head injury. The two claimants brought a claim for damages against the driver, which was dismissed at first instance.

On appeal, the defendant accepted that he had been negligent in driving off knowing that one of the doors was open and the claimants did not have seat belts on. Nevertheless, the claimants had been the authors of their own misfortune. They had done something that they had known, or ought to have known, was dangerous and had been engaged in the criminal act of making off without payment. Ex turpi causa applied – especially as the crime had been integral both the facts of the claim and any negligence of the defendant.

Contact: Graham Thompson

Witnesses: exclusion from courtroom

Da Costa & another v Sargo & another [14.07.16]

At first instance, the judge held that the claimants’ insurance claim for damage to their motorbikes was fraudulent. She also ordered that each claimant be excluded from court whilst the other was giving evidence.

On appeal, the Court of Appeal held that the judge did not make sufficient findings, or provide adequate reasoning, for the finding of fraud. In addition, whilst there was no absolute rule that a party has to be present at trial to ensure a fair trial, there had been no justification in this instance for excluding the claimant. Nevertheless, that was not automatically fatal to the fairness of trial. A fair trial had taken place.

Contact: Katherine Totty

Related article: Fraudulent claimants: no hiding place in a compromise

Read other items in Motor Brief - January 2017