Court holds stolen vehicle use is outside insurance policy, granting plaintiff's claim against MIB instead of owner.

Record No: 2021/05219

Neutral Citation: [2024] IECC 13

AN CHÚIRT CHUARDA

THE CIRCUIT COURT

DUBLIN CIRCUIT CIVIL COURT COUNTY OF THE CITY OF DUBLIN

IN THE MATTER OF

STEVEN CUMMINS

Plaintiff

and

THOMAS GREENE, PADRAIG THORNTON WASTE DISPOSAL LIMITED

TRADING AS THORNTON’S RECYCLING & THE MOTOR

INSURERS’ BUREAU OF IRELAND

Defendant(s)

Judgment of Her Honour Judge Jennifer O’Brien delivered this 26th day of July 2024

1. Background: This case comes before the Court by way of personal injury summons issued on 16 November 2021. The plaintiff has an address in Dublin and the first named defendant also has an address in Dublin. The defendant was an uninsured driver of a motor vehicle bearing the registration number 00 D xxx, owned by the second named defendant. The second named defendant is a company with an address in Dublin 12. The third named defendant is a statutory body with an address in Dublin 1 and is joined to the within proceedings pursuant to its obligations under the Motor Insurers Bureau of Ireland Agreements as amended.

2. It is common case that on 11 October 2019 the plaintiff was lawfully present as a front seat passenger in a motor vehicle driven on the public highway at Cloverhill Road, Ballyfermot when the waste disposal truck driven by the first named defendant and owned by the second named defendant, travelled around the corner onto the wrong side of the road and collided with the front of the motor vehicle in which the plaintiff was traveling as a passenger. The plaintiff suffered a personal injury and the quantum of same has been agreed between the parties in the sum of €15,000, together with the plaintiff’s costs including reserved and discovery costs to be taxed in default of agreement. The issue for determination by this Court is the extent to which either the second or the third named defendants are liable for damages to the plaintiff. As such the Court must decide as against which defendant to issue a decree in favour of the plaintiff in the agreed amount.

3. The second named defendant contends that the Thornton’s lorry was stolen, and the first named defendant Mr. Greene didn't have either consent or authority to drive the refuse lorry.

It is submitted that the third named defendant, the Bureau, did not require the plaintiff to enter judgment against the first named defendant Mr. Greene. Counsel for Thorntons seeks to rely on the content of the MIBI Agreement of 2009 and the scope of the Bureau’s liability in respect of uninsured and stolen vehicles. It is submitted that it is clearly the intention of the 2009 Agreement that the Bureau must compensate the plaintiff in circumstances where a vehicle is either uninsured or stolen. As such it is submitted that the Bureau is liable to the plaintiff in this respect.

4. Counsel referred the Court to the text, “The MIBI Agreements and the Law”, second edition by Cathleen Noctor and Richard Lyons, at page 96 which deals with causation regarding stolen motor vehicles. Reference is made to the decision of the High Court in Breslin v Corcoran & MIBI [2001] IEHC 238, in which the first defendant left his car unlocked and with the keys in the ignition. An untraced driver stole the car and negligently collided with the plaintiff. The plaintiff sued the MIBI, pursuant to Clause 2 (2) and 6 of the 1988 Agreement and the car owner. The defendants agreed that the plaintiff was entitled to recover against one or other of them. The net issue was which of them was liable to the plaintiff. The High Court accepted the owner's assertion that, although he was negligent and in breach of statutory duty leaving the car as he as he did, the acts of the untraced driver broke the chain of causation between the owner’s negligence and the plaintiff’s injuries.

The High Court considered that liability could not be imposed on the car owner in the absence of evidence that he had left it in an area which it should have been known to him that people routinely stole cars for the purpose of driving them around in a reckless and dangerous fashion. The High Court awarded damages against the MIBI and the MIBI appealed to the Supreme Court ([2003] IESC 23).

5. The MIBI asserted that the owner was negligent in circumstances where it was probable that the car would be stolen and asserted that it was reasonably foreseeable that the thief would injure someone. The Supreme Court dismissed the appeal. While it was reasonably foreseeable that the unattended car would be stolen, it was not reasonably foreseeable that it would be driven negligently.

6. The Court was referred to page 205 of Breslin v Corcoran & MIBI [2003] 2 IR 203 where Fennelly J sets out: “It is an act of folly to leave one's motor car in the public street, even for a short time, with the keys in the ignition. There are plenty of ill-intentioned persons around to take advantage. The consequences can be tragic. But what is the liability of the imprudent car owner to a person injured by the bad driving of the thief?” The agreed facts of the present case are that first-named defendant left his car outside the Tea Time Express Coffee Shop in Talbot Street in Dublin unlocked and with the keys in the ignition.

He dropped into the shop to buy a sandwich. As he came out, he saw an unknown person jump into the car and drive it off at speed. The car turned from Talbot Street into Talbot Lane. The plaintiff was walking across Talbot Lane. The car ran into him and injured him. For simplicity, if not accuracy, I will refer to the person who took the car as "the thief". He may, of course, have been a joyrider or other temporary taker of the car.” The plaintiff brought an action in the High Court against Mr. Corcoran, first-named defendant, alleging negligence in leaving the car unattended in the manner described.

He joined MIBI, the second defendant, "pursuant to the terms of an agreement dated the 21st day of December 1988 and made between the Minister for the Environment and the Second Named Defendant and in particular Clause 2(2) and 6 thereof." The plaintiff succeeded in the High Court before Butler J against the second named defendant (MIBI) only. Damages were agreed at £65,000. The learned High Court judge apportioned all the liability to the MIBI and gave a decree against it with costs. The second defendant (MIBI) is sued directly in this way, not as representing or standing in for the thief, but because it has agreed to compensate victims of uninsured driving, subject to the terms of the agreements.

The real issue before the Court is whether there was any negligence on the part of the first named defendant. If there was, the MIBI has no liability. If not, it is bound by the agreement. The form of the proceedings is unsatisfactory in one respect. The plaintiff had a clear case against whoever was responsible for the driving of the car. There were no pleadings between the defendants. Thus, MIBI was left to argue the liability of the first named defendant, in order to escape its own. In particular, the extent, if any to which the regulations, made under the Road Traffic Acts were part of the argument is unclear.

Counsel for MIBI argued in the High Court that the first named defendant was negligent. In the circumstances, he said, it was probable that the car was going to be stolen and that it was reasonably foreseeable that the thief would injure someone. The concept of novus actus interveniens was central to the argument as were two cases, one Irish, a Circuit Court decision of McWilliam J (Dockery v O'Brien [1975]109 ILTR 127,"Dockery") and one English (Topp v London Country Bus (Southwest) Limited [1993] 1 WLR 976," Topp". Reference was also made to the well-known Supreme Court decision in Conole v Redbank Oyster Company [1976] I.R.

191. Butler J had no doubt that the act of the thief amounted to a novus actus interveniens, which broke the chain of causation. He thought that, to impose any liability on the first named defendant, it would be necessary to have evidence that the car was left in an area where it should be known to the owner that people routinely stole cars for the purpose of driving them around in a reckless and dangerous fashion.

The second defendant (MIBI) contest these views of the High Court judge. In particular MIBI says that he was wrong not to find that the " admitted negligence" of the owner of the car was the cause of the plaintiff's injuries and that the chain of causation was therefore not broken. The contending positions may be expressed as follows. The second defendant would say that the act of leaving a motor car, unattended and unguarded, for any length of time in a public street with the keys in the ignition is clearly an act of carelessness. There is an obvious and serious risk of the car being taken, whether by way of theft, in order to commit some crime or, merely for joyriding. The culprit must necessarily be a person who does not respect the law and who is likely to be a danger to others whether by reason of general irresponsibility or while trying to get away. The first defendant would say that the taking of the car is a novus actus interveniens. It is an independent, illegal act of a third party. The car owner is not responsible for the manner of the driving of the thief, He cannot control it. He should not be treated as if he had authorised the driving of the car. He is not vicariously liable. In order to resolve this dispute, it is necessary to consider both the scope of the duty of care in negligence and the cause of the damage. Specifically, does, the person injured by a stolen motor car come within the range of persons who can complain? Once more, the case raises the sufficiency of the test of foreseeability and hence the range of damage for which the person performing a careless act is liable.

It is particularly helpful that Keane C.J. has, in his recent judgment in Glencar Explorations plc v Mayo County Council (Number 2) [2002] 1 I.R. 84, reviewed in a considered manner the very vexed question of the proper test for the imposition of a duty of care. In doing so, he went a long way to resolving the apparent divergence which had manifested itself from the mid nineteen eighties between the approaches of our Courts and those of other common law jurisdictions, in particular those of England and Wales. The merely persuasive status of the decisions of other common law jurisdictions has not dissuaded our Courts from taking its inspiration from contemporaneous new steps in the development of the common law.

The decisions of the House of Lords in Donoghue v Stephenson [1932] A.C. 562 and Hedley Byrne & Company v Heller and Partners Limited [1964] A.C. 465 are the best-known examples. The famous two stage test enunciated by Lord Wilberforce in what was once regarded as the landmark case of Anns v Merton London Borough [1978] A.C. 728 at page 751, was, however, open to being read as postulating foreseeability as the single governing test. In truth, it led to much confusion both here and in England. After a period of some doubt both in the English and Commonwealth Courts, the House of Lords, taking its lead in part from the High Court of Australia, in Sutherland Shire Council v.

Heyman (1985) 157 C.L.R. 424, departed from Anns v Merton London Borough in Murphy v Brentwood District Council [1991] A.C. 398. Keane C.J., In Glencar Explorations plc v Mayo County Council (Number 2) [2002] 1 I.R. 84 citing Sutherland Shire Council v. Heyman, referred to the need to maintain the distinction between duties on the moral plane and those whose breach could be invoked in the law of negligence. He went on at page 139: - “It is precisely that distinction drawn by Lord Atkin between the requirements of morality and altruism on the one hand and the law of negligence on the other hand which is in grave danger of being eroded by the approach adopted in Anns v London Merton Borough [1978] A.C. 728 as it has subsequently been interpreted by some.

There is, in my view, no reason why courts determining whether a duty of care arises should consider themselves obliged to hold that it does in every case where injury or damage to property was reasonably foreseeable and the notoriously difficult and elusive test of "proximity" or "neighbourhood" can be said to have been met, unless very powerful public policy considerations dictate otherwise. It seems to me that no injustice will be done if they are required to take the further step of considering whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a given scope on the defendant for the benefit of the plaintiff, as held by Costello J. at first instance in Ward v McMaster [1985] I.R. 29, by Brennan J. in Sutherland Shire Council .v.

Heyman [1985]

157 C.L.R 424 and by the House of Lords in Caparo Industries Plc, .v. Dickman[1990] 2 A.C

605. As Brennan J. pointed out at page 481, there is a significant risk that any other approach will result in what he called a "massive extension of a prima facie duty of care restrained only by undefinable considerations..." I consider that this passage represents the most authoritative statement of the general approach to be adopted by our Courts when ruling on the existence of duty of care. It seems to me that, in addition to the elements of foreseeability and proximity, it is natural to have regard to considerations of fairness, justice and reasonableness. Almost anything may be foreseeable. What is reasonably foreseeable is closely linked to the concept of proximity as explained in the cases. The Judge of fact will naturally also consider whether it is fair and just to impose liability. But otherwise, it is necessary to have regard to all the relevant circumstances. The present case is concerned with a narrower application of the question of to whom a duty of care is owed. It raises the circumstances in which it may be proper to fix a person with liability for an act of carelessness, where a third person’s independent act has intervened between that act and has directly caused the damage. However, the general principles laid down by Keane C.J provide useful guidance. I will refer, firstly, to the cases directly concerned with the taking of an unattended motor vehicle. There are two Irish Circuit Court decisions. The facts of Dockery v O'Brien [1975]109 ILTR

127 are similar to the present case. An owner left his car in the street with the keys in the ignition. An intoxicated person took it and crashed it into the plaintiff’s parked car. McWilliam J said at page 128:- “With regard to a novus actus interveniens, Lord Reid, in the Dorset Yacht Company case, said that, if what is relied on as a novus actus interveniens is the very thing which is likely to happen, if the want of care which is alleged takes place, the principle involved in the maxim is no defence, and he added that, unfortunately, tortious or criminal action by a third party may be the very kind of thing which is likely to happen as a result of the wrongful or careless act of the defendant … This was the very kind of thing which a reasonable person should have foreseen.”

In Cahill v Kenneally (1955-1956) 1955–1966 IJR 127, a bus driver had driven some dart players to a competition. The driver allowed some of the players back onto the bus after the event and then left the bus unattended when he went off to look for some of the passengers, in fact, the people who drove the bus away were themselves passengers, who started it and crashed it into the parked car. According to the very brief note Judge Roe ruled at page 17, “It was negligence on the part of the driver, when he obviously knows that the bus, if unattended, should be locked, so that it may be safe, and it was clearly dangerous to allow these men into the bus.”

7. In essence counsel for the second named defendant submits that there was no negligence on the part of the second named defendant here as the car was stolen, and indeed there was no carelessness on the part of the second named defendant, in fact the lorry didn't stop, there was an investigation subsequently. As such it was submitted that this was the independent illegal act by a third party for which the second named defendant has no vicarious liability. She referred to the decision of Keane C.J. in the Glencar case which I've set out above. It was further submitted that there was not a manifest and obvious risk that the vehicle would be stolen by a third party with the natural and probable results of a breach of duty. Here the first named defendant engaged in an independent act. In summary counsel submitted that while her client’s vehicle was insured, it is the job of the Bureau to cover this situation where the vehicle is stolen and that the cover should be provided by the Bureau as a matter of public policy. Counsel also refers to the matters which are set out in the second named defendant’s defence. The essence is that at all material times the vehicle was stolen and that the first named defendant did not have the permission or authority or consent to drive the vehicle. The Court was also handed a copy of the Motor Insurer’s Bureau of Ireland Compensation of Uninsured Road Accident Victims Agreement dated 29 January 2009 between the Minister for Transport and the Motor Insurers Bureau of Ireland (MIBI). This document sets out the condition’s precedent to the MIBI's liability, which sets out a paragraph 3.6: “The claimant shall endeavour to establish if an approved policy of insurance covering the use of any vehicle involved in the accident exists.”

8. Essentially the agreement covers the scope of the Bureau’s liability, with certain exceptions, for compensation for victims of road accidents involving uninsured or stolen vehicles and unidentified or untraced drivers to the full range of compulsory insurance in respect of injury to person and damage to property under the Road Traffic Act 1961.

9. Counsel on behalf of the MIBI submitted that it was a misapplication of the law to apply the decision of the Supreme Court in Breslin in this case where it was conceded that the first named defendant driver was driving without the consent of the second named defendant but where it was also conceded that there was a valid policy of insurance in place that had not been repudiated by the insurer covering the second named defendant’s vehicle.

Counsel for the second named defendant intervened and said that it had not been conceded that there was a valid insurance in place.

10. Counsel for the MIBI continued that Breslin has nothing to do with this case which involves the application of the 1% rule. It was submitted that as insurance is in place this is a distinguishing feature from the Corcoran case where Mr. Corcoran had left his keys in the car which had resulted in repudiation of the insurance cover for the vehicle. It was submitted that the Court would have to determine that the MIBI was not liable and that the insured driver should take all of the liability. It was further submitted that MIBI is the insurer of last resort. They were only obliged to provide cover when there is no one else to do so. It was submitted that Breslin could be differentiated because in that case there was no other valid policy of insurance in place.

11. Counsel referred to the decision of the Supreme Court in M.I.B v P.M.P.A, Insurance Company Limited, which is an unreported decision by Henchy J on 9 July 1979. Counsel referred to page 1924 of that decision which provides: “In the High Court the Judge differed from the arbitrator. He held that the P.M.P.A. was not "the insurer concerned". He was of the opinion that an insurance company could be "the insurer concerned" only if it at the date of the accident it is providing insurance in respect of the liability of the user or some other person who would be liable for injury to person caused by the negligent use of the vehicle at that time by the user; that the insured must either be the user of the vehicle or have an interest in the vehicle; and that the P.M.P.A., not being in either category, was not "the insurer concerned".

It is from that decision that this appeal has been brought by the M.I.B. It is agreed that what is involved in this appeal is a pure question of law: is the P.M.P.A. "the insurer concerned", in the sense in which that expression is used in the domestic agreement? The domestic agreement, as its recitals show, was entered into for the purpose of implementing, in accordance with the articles of association of the M.I.B.I., an agreement of the 30 August 1964 between the Minister for Local Government and the M.I.B.I. The latter agreementimposed liability in certain circumstances on the M.I.B. for injury to person such as is required to be covered by an approved policy of insurance under Section 56 of the Road Traffic Act, 1961.

One of the primary purposes of the domestic agreement is to enable the M.I.B. to shift that liability on to an individual insurer in certain circumstances if the individual insurer was "the insurer concerned". It is common ground in this case that liability for the judgment for £44,904 should, under the domestic agreement… .if the P.M.P.A. is captured by the definition of "the insurer concerned" in the domestic agreement. The definition in question commences with the following general statement: ""The Insurer concerned" means the Insurer who at the time of the accident which gave rise to the Road Traffic Act liability was providing any insurance against such liability in respect of the vehicle arising out of the use of which the liability of the judgment debtor was incurred".

Even if the definition stopped there, I think it would have to be held that the P.M.P.A. is captured by it, for at the time of the accident it was providing, with in the limitations of the policy, insurance against Road Traffic Act liability in respect of JLI 859.

12. In essence counsel submits that the insurer concerned is the insurer providing cover to the vehicle on behalf of the second named defendant. As such the second named defendant should be liable to the plaintiff in this case. It was submitted that it was not in the interests of public policy for MIBI to pick up every bill but rather only where there is no other valid policy of insurance against which to grant the decree in favour of the plaintiff. It was submitted that it had been conceded that there is a valid policy of insurance on Thornton’s truck, he said that the theft or otherwise of the truck is a red herring and, in this instance, the insurer of Thornton’s vehicle is the “insurer concerned.” As such, they should pay the damages as the MIBI is the insurer of last resort. He said this was the case notwithstanding that the driver had no relationship with the second named defendant and that in this instance the second named defendant’s insurance company must pick up the tab.

13. By way of reply on behalf of the second named defendant, counsel submitted that there was no reference whatsoever to the issue of insurance cover in the Supreme Court decision in Breslin. She said that counsel for the Bureau was effectively giving evidence with regard to the question of whether a policy was in place in the context of the Breslin decision. It was submitted that the decision in PMPA is an old case and there have been many decisions since that time. It was submitted that it could not accord with public policy that an innocent person would be responsible for the actions of a person who had stolen the vehicle. The innocent owner being required to pay out on their policy in such circumstances is actually the opposite of the purpose for which the MIBI was founded. It was submitted that here the criminal intervening act caused the damage to the plaintiff in circumstances where the second named defendant had no knowledge and had not given consent or authority to the first named defendant.

14. Decision: This Court notes that there is no question that the first named defendant is responsible for the injury caused to the plaintiff in this case and none of the co-defendants are seeking a decree against the first named defendant in this regard. Having said that, it is the function of the MIBI to provide cover in circumstances where compensation is required for victims of road accidents involving uninsured or stolen vehicles, as set out in the provisions of the MIBI Agreement dated 29 January 2009. This Court has been asked to address the issue of liability as between the second and third named defendants. The Court relies both on the decision of the Supreme Court in Breslin V Corcoran and also on the

decision in MIBI v PMPA, Insurance Company Limited in the sense that clearly the second named defendant could not be viewed as liable, not even at a level of 1%, for the criminal acts of the first named defendant in stealing the vehicle and then proceeding to drive same in a negligent manner. Insofar as the third named defendant seeks to rely on the decision in PMPA this Court is of the view that such reliance is misplaced given the definition of “insurer concerned which means the insurer who at the time of the accident which gave rise to the Road Traffic Act liability was providing any insurance against such liability in respect of the vehicle arising out of the use of which the liability of the judgment debtor was incurred.”

15. It is clear to this Court that the use of this vehicle and indeed the insurance policy covering same as provided to the second named defendant could not be said to be use in circumstances where a third party had engaged in unauthorised use of the vehicle which is clearly not covered by the policy of insurance. As such, the Court is of the view that such use of the vehicle is outside the scope of the insurance cover provided by the second named defendant. Indeed, when one reads the opening paragraph of the MIBI Agreement dated 29 January 2009 it is clear that same is intended to cover both uninsured and or stolen vehicles which is clearly intended to cover the circumstances of this case. There’s no mention in any of the decisions of the concept of the MIBI only providing cover where no other insurance company is available to do so, and that concept is absent from the case law, save where the

1% rule is invoked. Rather the case law focuses on the issue of liability and foreseeability and whether it would be reasonable to impose liability on a particular defendant in relation to damages claimed by a particular plaintiff.

16. In this case the Court is of the view that it would be unreasonable to expect the second name defendant to cover with their policy of insurance, all eventualities that might occur when a third party wrongfully removed the vehicle and proceeds to drive same in a negligent manner. Further, as a matter of public policy it would not be either fair or just that someone in the position of the second named defendant would have to cover all eventualities that may occur in circumstances where a third party wrongfully removes a vehicle and causes damage to another person.

17. As such, the Court grants the decree in favour of the plaintiff in the sum of €15,000, together with an order for costs to include reserved and discovery costs, to be taxed in default of agreement. All of the said orders are granted in favour of the plaintiff as against the third named defendant. An order for costs in favour of the second named defendant as against the third named defendant to be taxed in default of agreement. Appearances

Matthew Jolley BL for the plaintiff instructed by Murray Flynn LLP Solicitors. Gráinne Berkery BL for the second named defendant instructed by Benjamin J. Higgins Solicitors. Shane English BL for the third named defendant instructed by Hayes McGrath LLP Solicitors.