The Deep Pocket?

The 1998 Health Service Casualty Report states that there were 338,614 accidents on the road during 1998. Each year a proportion of accidents are caused by drivers who do not have any insurance or drivers who are not traced after the accident. This case study is about David who was injured by an uninsured driver.

The Facts

On 17th August 1990 David then 16 years old accepted a lift from an acquaintance. During the journey along the North Woolwich Road in London the driver attempted to overtake a lorry and collided with a traffic island in the centre of the road. The car turned over and came to rest on the forecourt of a petrol station. The driver left David injured in the wreckage. David suffered multiple injuries including a complete spinal cord lesion at T9.

Difficulties

Personal injury litigation should never be commenced unless there are good prospects of actually recovering a cash award. A piece of paper which says a Claimant is entitled to a monetary sum (a Judgment) is no substitute for cash unless it can be recovered. This is a particularly important consideration in spinal cord injury claims where damages frequently exceed £1 million.

In the majority of road traffic accidents the Defendants will have a policy of insurance which will satisfy any award of damages. However the position is more difficult where a Defendant without insurance causes the accident or where the driver leaves the scene of the accident and cannot be traced.

In David´s case it materialised that the Defendant was driving without a licence and without insurance. It appeared from the facts that the overtaking manoeuvre would amount to negligence but who would pay the damages awarded?

Overcoming the Difficulties

The Motor Insurance Bureau ("MIB") is an organisation funded by all insurers providing compulsory road insurance in Great Britain. With the support of those insurers the MIB have entered into two agreements with the Secretary of State for Transport, The Untraced Drivers Agreement and The Uninsured Drivers Agreement. The MIB have agreed to provide compensation to victims of both uninsured motorists and untraced motorists in certain cases and subject to strict conditions.

In David´s case the Defendant was traced but it emerged that he was uninsured. Therefore we followed The Uninsured Drivers Agreement. The MIB can refuse to pay damages under this agreement where the Claimant knew or ought to have known that the vehicle was stolen or that it was uninsured or that it was being used in furtherance of a crime or that it was being used as a means of escape from lawful apprehension. At an early stage the MIB refused to pay damages on the basis that David knew or ought to have known that the vehicle was being driven without insurance. The case proceeded to the High Court and we asked a Judge to determine firstly whether the Defendant´s driving amounted to negligence and secondly whether the MIB were liable to pay damages. The first point was straightforward, the Defendant was negligent. However the extent of the MIB´s liability to pay damages was unclear in view of David´s alleged knowledge that there was no policy of insurance covering the vehicle. This was a question of fact for the Judge to determine. Immediately prior to the hearing it was agreed by negotiation that the MIB would pay two thirds of any Judgment obtained against the Defendant.

The Outcome

Following the agreement reached, Judgment was entered against the Defendant on the issue of liability subject to the deduction of one third of any damages agreed or awarded. Thereafter we gathered evidence on David´s future needs and agreement was ultimately reached on the level of damages to be paid.

Conclusion

It is often the case that those injured by uninsured and untraced drivers do not think that they can bring a successful claim. The MIB may provide the “deep pocket” in cases where a Claimant would otherwise have no means of obtaining damages for his or her injuries.