Sharaz Sarfraz v (1) Shakeeb Akhtar (2) ERS Syndicate Management Limited
An insurer has unsuccessfully argued a personal injury claim for a traumatic brain injury should be struck out after submitting that the Claimant had allowed himself to be carried in his own car, after it had been stolen by his friend.
In dismissing the application to strike out the claim, the Court found the Claimant's car was not considered to have been 'taken' until it moved, by which point the Claimant could not have alighted. Further, in seeking to prevent his friend from taking the car, the Claimant had not allowed himself to be carried.
Background
The Claimant and First Defendant ("the driver") had been out drinking together, and afterwards, the First Defendant ended up driving the Claimant's vehicle. The Claimant was the front seat passenger. The vehicle collided with the central reservation, and after rolling several times, collided with a metal gate. The Claimant suffered a severe traumatic brain injury, and pursued a claim against the driver and his own insurer, as the Second Defendant.
The Claimant submitted that his insurer carried a contingent liability to satisfy any judgment that might be obtained against the driver. In response, the insurer issued an application to strike out the claim, or obtain summary judgment in its favour.
The insurer submitted that s151(4) of the Road Traffic Act 1988 applied and the Claimant "allowed himself to be carried in or upon the vehicle and knew or had reason to believe that the vehicle had been stolen or unlawfully taken", and as such the insurer did not have a duty to satisfy any judgment against the driver.
Decision
It was stressed in the insurer's application "at no point did the Claimant provide consent to the First Defendant driving the Vehicle."
It was accepted by the insurer the Claimant "had no reasonable opportunity to get out of the car" once it had moved off, and this was common ground between the parties
However, it was disputed that the Claimant:
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Did not know and had no reason to believe that the car had been taken until after commencement of the journey;
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Did not 'allow' himself to be carried in the car.
In respect of the first point, the insurer submitted the car was unlawfully taken when the driver took the keys from the Claimant's pocket. The Claimant countered that a vehicle cannot be taken until it has moved, further to section 12 of the Theft Act 1968.
Mr Justice Pepperall agreed with the Claimant, finding "the expression "unlawfully taken" in s.151(4) is, on its true construction, a reference to the vehicle having been taken without authority contrary to s.12 of the Theft Act 1968."
The Court was satisfied that the vehicle could not be said to have been unlawfully taken "until it was driven away, and that taking possession of the keys, sitting in the driver's seat and even turning the key are all acts that fall short of actually taking the car."
This alone would have been sufficient to ensure the dismissal of the application, however, the second point was still considered; whether the Claimant 'allowed' himself to be carried.
Ultimately, the Court concluded that whilst the Claimant's evidence that he had sought to stop the driver was "thin", he would establish at trial that the sole purpose of getting into the car was stopping the driver from taking the car. On that basis, it is not properly arguable that he 'allowed' himself to be carried in the car.
Outcome
The application to strike out the claim was dismissed.
The insurer "failed to establish that there is no arguable basis of claim." Mr Justice Pepperall continued that "it is properly arguable that the contingent liability imposed by s151 was not excluded"; the car was not unlawfully taken until it was driven off after which no reasonable opportunity arose for the Claimant to alight, and the Claimant had not allowed himself to be carried in the car, on the assumed facts.
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