Driver refused application for judicial review in case of driving without insurance

About this case:

• Judgment:
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Dismissing his application, Justice Noonan held that the man was confused as to the purpose of insurance.

Background

In June 2013, while disqualified from driving, Mr Russell Ighovojah took out a policy of motor insurance with the Royal & Sun Alliance insurance company (RSA).

Mr Ighovojah did not disclose his disqualification to RSA when he took out the insurance policy, which was subject to the following proviso: “provided that the person driving holds a licence to drive such a vehicle, or having held such a licence is not disqualified from holding such a licence”.

On the 23rd of June 2013, a member of An Garda Síochána stopped Mr Ighovojah, and demanded him to produce his insurance. When he eventually did so, he produced the RSA certificate, which on its face covered the relevant time but contained the stipulation above referred to.

On the 14th of May 2014, District Judge Brian Smyth convicted Mr Ighovojah of an offence contrary to s. 56(1) of the Road Traffic Act 1961, (i.e. driving without insurance) and failing to produce a certificate of insurance.

Section 56(1) provides:

“A person (in this subsection referred to as the user) shall not use in a public place a mechanically propelled vehicle unless either a vehicle insurer, a vehicle guarantor or an exempted person would be liable for injury caused by the negligent use of the vehicle by him at that time or there is in force at that time either (a) an approved policy of insurance whereby the user or some other person who would be liable for injury caused by the negligent use of the vehicle at that time by the user, is insured against all sums without limit (save as is hereinafter otherwise provided) which the user or his personal representative or such other person or his personal representative shall become liable to pay to any person (exclusive of the excepted persons) by way of damages or costs on account of injury to person or property caused by the negligent use of the vehicle at that time by the user, …”

Mr Ighovojah argued that section 56 was ‘directed towards ensuring that a person injured by the negligent use of a mechanically propelled vehicle in a public place shall not be left without compensation’.

Accordingly, where there is an insurance policy in place, which enjoins the insurer (i.e. RSA), to compensate an injured third party, no offence is committed under section 56 as the user of the vehicle is “insured” within the meaning of the section.

High Court discussion

Justice Noonan stated that the essential issue was whether or not Mr Ighovojah was “insured” at the material time by an “approved policy of insurance”.

Mr Ighovojah relied upon section 76 of the 1961 Act, which entitles an injured party to recover damages directly against the insurer where the conditions set out in the section are fulfilled.

Justice Noonan stated that the Road Traffic (Compulsory Insurance) Regulations 1962 to 1987 ‘provide that an insurer may not rely on certain conditions and limitations in policies to defeat an application by an injured party for compensation pursuant to section 76’. The conditions upon which an insurer may not rely include any condition whereby the insured is required to have a valid driving licence.

Justice Noonan added that ‘all of the legislative provisions are clearly concerned with compensating victims of negligent driving but they are not concerned with the insured’s right to indemnity’.

The purpose of insurance

In his judgement, Justice Noonan referred to the authorative work of Austin Buckley in Insurance Law ‪(Round Hall Limited, 2014); the judgment of Lord Justice Brett in Castellian v. Preston 11 QBD 380; DPP v. Donnelly IESC 44; and the European Court of Justice case Rafael Ruis Bernaldez (case C-129/94, judgment of court 28th of March 1996).

Justice Noonan stated that ‘insurance contracts are intended to provide the insured with an indemnity against his loss, be it loss of or damage to his property or the property of others in his custody or control, in the case of property insurance, or liability incurred to a third party in the case of liability insurance’.

Accordingly, ‘where the insured suffers a loss or incurs a liability contemplated by the policy of insurance, he is contractually entitled to be indemnified in respect of that loss or liability by the insurer. Where liability insurance is concerned, the insurer, as a matter of law, has no tortuous or contractual liability to the injured party’.

Conclusions

Justice Noonan was of the view that it was ‘clear beyond doubt that a party such as Mr Ighovojah, who enjoys no right of indemnity by virtue of the relevant insurance policy’, could not be regarded as being “insured” within the meaning of section 56(1).

He added that ‘the fact that the insurer concerned may have a statutory obligation to compensate an injured third party’ was immaterial - Mr Ighovojah’s argument confused ‘two entirely different things being the contractual right to an indemnity on the one hand and the statutory obligation to compensate on the other’. Since the policy of insurance did not operate to insure the insured, it could not be an approved policy of insurance within the meaning of section 56(1).

Additionally, Justice Noonan entertained ‘no doubt’ that Judge Smyth was correct to convict Mr Ighovojah of both the section 56(1) offence and the associated offence of failing to produce a certificate of insurance.

Therefore, having regard to this finding, Justice Noonan stated that it was unnecessary to consider the second issue of ‘if an erroneous view of section 56 had been taken by Judge Smyth, this was an error within jurisdiction’.

Justice Noonan indicated that this no longer arose and dismissed the application for judicial review.