Court dismisses appeal where driver without named status on insurance policy is convicted under Road Traffic Act.

THE SUPREME COURT

Appeal no: 355/2009

Denham C.J.

Hardiman J.

Fennelly J.

O’Donnell J.

McKechnie J.

IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947

Between

DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

-and-

KEITH DONNELLY

Accused

JUDGMENT of Mr. Justice Fennelly delivered the 23rd day of July 2012.

1. At the hearing of his Circuit Court Appeal from his conviction in the District Court for driving without insurance, Mr Keith Donnelly

(whom, for convenience, I will describe as “the appellant”) advanced legal points, including a possible point of European Union law,

which now come before this Court on foot of a Case Stated.

The essential problem was that the appellant was driving his father’s car with consent, but he was not a named driver on the policy.

2. The appellant was convicted, on his plea of guilty, by order of the District Court dated 28th February 2008 and appealed to the

Circuit Court.

3. The prosecution was brought under s. 56(1) and (3) of the Road Traffic Act, 1961 as amended by s. 23 of the Road Traffic Act,

2002. It is sufficient to quote s. 56(1) of the Act of 1961. The amendment in 2002 related only to penalty. The other subsections

cover matters which do not arise in this case. Several parts have been amended by Statutory Instruments adopted to give effect to

European directives. Subsection (1) provides:

“(1) 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 ……………………[deletion S.I. 248 2008] 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, or

(b) an approved guarantee whereby there is guaranteed the payment by 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, of 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.”

4. The facts as found were that on the 27th of January 2007, at Fairgreen, Carlow, a public place, the appellant was driving a motor

car, registered number 98 D 26878, the property of his father, Eugene Donnelly. The vehicle was insured under a policy of insurance

issued to Eugene Donnelly by AXA Insurance Limited in respect of which the insured and his wife were named drivers, but the

appellant was not. The appellant was stopped by a Garda and asked for his insurance. He opted to produce it at Athy Garda Station.

The certificate of insurance actually produced did not, for the reason stated, cover driving by the appellant.

5. At the hearing before the Circuit Court, counsel for the appellant submitted that the charge should be dismissed for the following

reasons:

(i) an offence contrary to the section is committed only where a motor vehicle is used in a public place in circumstances

where an insurer is not liable for any injury or damage incurred by a third party as a result of the negligent use of the

vehicle;

(ii) where an approved policy of insurance is in fact in force the insurer is liable for any injury or damage caused to a third

party as a result of the negligent use of the vehicle;

(iii) pursuant to the Council Directive 72/166/EEC and the Second Council Directive 84/5/EEC an Insurer is precluded from

relying on statutory provisions or contractual clauses, including provisions of a policy, which limit cover to the use of a

vehicle by named persons, to refuse to compensate third-party victims of an accident caused by the insured vehicle.

(iv) As an approved policy of insurance was in force on the vehicle at the time, and the appellant had the consent of the

owner of the vehicle, the insurer was not entitled to rely upon the fact that the appellant was not a named driver under

the policy, at the time of the said use, in resisting a claim brought by any third party who suffered injury or damage

caused by the negligent use of the vehicle pursuant to section 76 of the Road Traffic Act 1961. Accordingly, the insurer

providing said insurance is liable for any resulting third party injury or damage caused by the negligent use of the vehicle,

notwithstanding any breach of contract that may have occurred, and further, notwithstanding any civil cause of action

the Insurer may have against the Insured.

6. The prosecution responded that an insurer, as a matter of contract with the insured, is entitled to restrict cover to named users of

the vehicle insured. The insurance premium is calculated accordingly. The legislation does not envisage that the insured should be

able to rewrite the insurance contract after the event. The Council Directive was intended to refer to a permitted driver under a

contract of insurance.

7. His Honour Judge Teehan, having reserved his decision, stated the following two questions for the decision of this Court pursuant

to s. 16 of the Courts of Justice Act, 1947:

a). In section 56(1) of the Road Traffic Act 1961, does reference to a Vehicle Insurer being liable for injury caused by the

negligent use of a vehicle include liability to pay damages to, or to satisfy judgment obtained by a third party claimant

pursuant to section 76 of the said Act?

b). If the answer to Question 1 is yes, save where a vehicle was stolen, can liability be avoided by the Vehicle Insurer on

the basis of a clause or provision in the contract of insurance which limits cover to persons who are either named or

indicated in the Policy of Insurance having regard to Article 3(1) of the Council Directive 76/166/EEC and to Article 2(1) of

the Second Council Directive 84/5/EEC?

The questions

8. The Court is asked to answer the second question only if it gives an affirmative answer to the first. The first question concerns the

interpretation of the expression “vehicle insurer,” which appears only in the introductory or first part of s. 56(1) and not in either

paragraph (a) or (b). For reasons, which will become apparent, no question is posed about either of those paragraphs.

9. Section 56(1) reproduces with minimal change the identically numbered section of the Road Traffic Act, 1933, the section which

first introduced compulsory insurance for motor vehicles. Perhaps for that historic reason, it is oddly constructed. Ostensibly, it

permits the driving of a motor car to be lawful either, firstly, where a vehicle insurer, a vehicle guarantor or an exempted person

would be liable for negligent use or, secondly, there is in force either an approved policy of insurance (paragraph (a))or an approved

guarantee (paragraph (b)). It is particularly to anomalous that s. 56(1)(b) is retained following the provision of s. 53 of the Road

Traffic Act, 1968 that the provisions “relating to an approved guarantee shall cease to have effect.” That provision must also have

the effect that the introductory words in s. 56(1) must be treated as providing only for a “vehicle insurer” and “an exempted person.”

It is also worthy of comment that several provisions in s. 56 have been amended by statutory instrument in order to give effect to

European directives. The result is a somewhat unsatisfactory patchwork of provisions, some of them clearly outdated.

10. At the outset of his argument, counsel for the appellant conceded that even a positive answer to the first question, particularly

the reference to s. 76, would not assist his client. That was because s. 76 proceeds on the assumption that there has been in force

an approved policy of insurance covering the driving which has given rise to a claim from an injured person.

11. The essential point was thus reduced to whether the reference to “vehicle insurer” includes a case such as the present where an

approved policy of insurance exists but it does not cover the driving of the person, such as the appellant, who is asked to produce his

insurance.

12. Counsel argued that s. 56 is a penal provision and must be construed strictly. Essentially the section prohibits the driving of a

vehicle in a public place unless one of a number of alternative conditions is met. There are two groups of conditions. The first is

where “either a vehicle insurer…………or an exempted person would be liable for injury caused by the negligent use of the vehicle…” I

omit the reference to a vehicle guarantor, as it no longer has effect. The second alternative condition is the normal one, i.e., where,

as provided in paragraph (a), and ignoring the now obsolete paragraph (b), there is in force an approved policy of insurance whereby

the liability of the user in respect of negligent use is insured against any claims.

13. The “vehicle insurer,” so the argument goes, includes an insurer, such as AXA Insurance Limited in this case which has issued an

approved policy of insurance, even though the terms of the policy exclude cover for the driving of the appellant. The appellant

proposes to overcome this latter difficulty by seeking a favourable answer to the second question. He cannot get to that point,

however, unless he first obtains a favourable answer to the first question.

14. Would the “vehicle insurer,” AXA Insurance Ltd in this case, have been “liable”—the word used in the section—for any personal

injury or other damage caused to a third party by negligent driving by the appellant on 27th January 2007, the day he was stopped?

If it would, the appellant can satisfy one of the requirements of the first set of conditions and he would not be guilty of the offence

of driving without insurance.

15. The appellant acknowledges that the liability of a “vehicle insurer” in the sense of the first part of s. 56(1) could relate to the

potential direct liability of the insurer for the negligent driving of the vehicles which it owns. Counsel describes this as a “narrow

concept.” He questions whether the reference to liability of a vehicle insurer is to be confined to that narrow meaning relating only to

liability of the “vehicle insurer” qua wrongdoer or is to be interpreted in the broader and, it is submitted, the more usual sense in

which the liability of an insurance company would arise, namely, liability on foot of a policy of insurance issued by that company.

Counsel argues that the provision is at least equally open to the latter construction. Thus, it would suffice if an insurance company

could be held liable, on foot of a policy of insurance, to pay or satisfy an award of damages in favour of a third party arising out of

the negligent use of a vehicle which is the subject of that policy of insurance.

16. The appellant draws attention to s. 68(1) of the Act of 1961, which provides:

“A vehicle insurer, a vehicle guarantor or an exempted person may at any time issue one or more certificates (each of which is in this

Act referred to as a certificate of exemption) in the prescribed form in respect of any mechanically propelled vehicle owned by him

certifying that the vehicle is owned by him and stating the prescribed particulars in respect of his liability for injury caused by the

negligent use of the vehicle.”

17. The appellant submits that s. 56(1) would have been clearer if it had expressly referred to a vehicle “owned” by a “vehicle

insurer.”

18. In essence the appellant submits that s. 56(1) is ambiguous. Being a penal provision, it should be construed strictly. It should be

literally interpreted. Reliance was placed on the following passage from Maxwell’s Interpretation of Statutes, 12th Edition, 1976, page

29;

“Where, by the use of clear and unequivocal language capable of one meaning, anything is enacted by the legislature, it must be

enforced however harsh or absurd or contrary to common sense as the result may be. The interpretation of the Statute is not to be

collected from any notions which may be entertained by the Court as to what is just and expedient; words are not to be construed,

contrary to their meaning as embracing or excluding cases merely because no good reason appears why they should not be embraced

or excluded. The duty of the Court is to expound the law as it stands, and to “leave the remedy (if one be resolved upon) to others”.

19. Counsel also cited Director of Public Prosecutions v Moorehouse [2006] 1 I.R. 421, in particular the judgment of Kearns J, (as he

then was); Director of Public Prosecutions (Ivers) v Murphy [1999] 1 I.R. 98, per Denham J (as she then was).

20. Counsel for the Director of Public Prosecutions submitted that the words of s. 56(1) cannot reasonably bear the meaning

contended for. In order to be able to rely on the cited passage from Maxwell, the appellant must show that the words are reasonably

open to the proposed meaning. He relies on what he says is the plain literal meaning of the words. The introductory words of s. 56(1)

refer to a situation where the “vehicle insurer” would be liable directly in tort to the injured party for the injury caused by the

negligent driving. The words must be read with s. 56(1)(a) and with s. 68. It was pointed out that s. 56(1)(a) envisages that limits

may placed on liability, whereas no such limits are provided in the case of the “vehicle insurer.”

Conclusion on the first question

21. The question is whether the “vehicle insurer,”—AXA Insurance Ltd on the facts of this case—would have been “liable,” in the

event that the appellant, or, indeed the named driver, had caused personal injury or other damage to a third party by negligent

driving on 27th January 2007.

22. I do not think it would. It would not, in the hypothetical circumstances I have posed, in my view, as a matter of law, have been,

to use the exact words of the section, “liable for [the] injury caused by the negligent use of the vehicle at that time…” The injury

envisaged here is the injury suffered by a third party as a result of negligent driving. The hypothetical negligent driving is that of the

appellant or, as I have noted, even the named driver. The “vehicle insurer” would certainly have been liable for his negligent driving, if

it had been the owner of the vehicle. That would, of course, have been vicarious liability, but, nonetheless, legal liability. It is

interesting to note that s.56 (1) of the Act of 1933 uses the expression “legally liable.”

23. A motor insurance policy is a policy of indemnity. The liability of an insurer, in the event of injury caused by the negligent driving

of an insured, is to indemnify the latter. The duty is owed to the insured, whose liability the insurer is bound to meet. It is not a

liability owed directly to the injured party. That liability remains the liability of the insured.

24. Section 68 puts the matter beyond doubt. It provides for a mechanism, similar to the issue by an insurer of an insurance

certificate, whereby a vehicle insurer can issue a certificate in prescribed form by reference to any particular mechanically propelled

vehicle “certifying that the vehicle is owned by him…” Furthermore that section makes clear reference to the insurer’s “liability for

injury caused by the negligent use of the vehicle,” an expression which reflects exactly the type of direct liability envisaged by s.56

(1).

25. The rationale for the provision is presumably that it would not make much sense if insurance companies had to issue approved

policies of insurance to themselves in respect of their own cars, when they would be directly liable, in any event, for the negligent

driving of their own employees.

26. I do not think that the appellant is assisted by the rule that penal statutes should be strictly construed. The passage cited form

Maxwell lays emphasis on the plain meaning of the words used. It refers to clear and unequivocal language. The particular passage

from the judgment of Kearns J in this Court on which the appellant relies is as follows:

“It is a well established presumption in law that penal statutes be construed strictly. This requirement manifests itself in various ways,

including the requirement to use express language for the creation of an offence and the further requirement to interpret strictly

words setting out the elements of an offence [Maxwell on The Interpretation of Statutes , (12th ed.) at pp. 239 and 240].

If there is any ambiguity in the words which set out the elements of an act or omission declared to be an offence, so that it is

doubtful whether the act or omission in question in the case falls within the statutory words, the ambiguity will be resolved in favour

of the person charged. A desired statutory objective must be achieved clearly and unambiguously, particularly where statutes of

strict liability, such as the Road Traffic Acts, are concerned. Thus, in construing a penal statute, the court should lean against the

creation or extension of penal liability by implication”.

27. The plain legal meaning of “liable” is that the “vehicle insurer” is liable as a matter of law to pay damages to an injured third party

for the consequences of its own acts, including acts of the drivers of vehicles which it owns for which it is vicariously liable. The

insurer is legally liable in that way only when it owns the vehicle. The language is, in my view, clear and without ambiguity and leads

inevitably to a negative answer to the first question.

28. The second question is posed only in circumstances where the first question is answered in the affirmative. It raises questions of

interpretation of the Insurance Directives. The Court was referred to a number of decisions of the Court of Justice. If the matter had

arisen, the Court would have been required to consider whether the fact that, in a number of situations, an insurer would not be

entitled to invoke limitations on its liability to indemnify, specifically when a motor car was being driven by a person other than the

named driver, could avail a person in the circumstances of the appellant, who is not advancing a civil claim for damages but resisting

his conviction for breach of the criminal law. These questions could possibly arise, if at all, in the context of s. 56(1)(a), where there

is an approved policy of insurance. Furthermore, they might require the Court to refer questions for preliminary ruling to the Court of

Justice. No question was asked of this Court relating to the interpretation of s. 56(1)(a). In those circumstances, I believe it is

preferable not to comment on these issues until the occasion arises.

29. It follows that the answer to the first question must be: “No.” The second question does not arise.