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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Pickett v Motor Insurers' Bureau [2004] EWCA Civ 6 (22 January 2004)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/6.html
Cite as: [2004] 1 WLR 2450, [2004] 2 All ER 685, [2004] WLR 2450, [2004] EWCA Civ 6

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Neutral Citation Number: [2004] EWCA Civ 6
Case No: 2003/0605

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE RICHARDS)

Royal Courts of Justice
Strand,
London, WC2A 2LL
22 January 2004

B e f o r e :

LORD JUSTICE PILL
LORD JUSTICE CHADWICK
and
LORD JUSTICE MAY

____________________

CLAIRE MARIE PICKETT
Appellant
- and -

MOTOR INSURERS' BUREAU
Respondent

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr Brian Langstaff QC (instructed by Levenes Solicitors of South Gate House, Wood Street, Cardiff CF10 1EW) for the Appellant
Mr Daniel Pearce-Higgins QC (instructed by Weightman Vizards of India Buildings, Walter Street, Liverpool L2 0GA) for the Respondent

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Chadwick :

  1. This is an appeal from an order made on 27 February 2003 by Mr Justice Richards, sitting in Cardiff, in proceedings brought by the appellant, Miss Claire Pickett, against Mr Nathan Roberts and the Motor Insurers' Bureau ("MIB"). The appeal, for which the judge gave permission, raises an issue of some general importance as to the obligations of MIB under the Compensation of Uninsured Drivers agreements. Although, on the facts in this case, the relevant agreement is that made between the Department of Transport and MIB on 21 December 1988 ("the 1988 agreement"), the comparable provision in the current agreement (made with the Secretary of State for the Environment, Transport and the Regions on 13 August 1999) is in the same terms.
  2. The appellant's claim in these proceedings is for damages in respect of injuries which she suffered on 12 July 1999 when a passenger in a motor vehicle driven by Mr Roberts. Mr Roberts has taken no part in the proceedings. Judgment was awarded against him for 85 per cent of the claim, with damages to be assessed. The appellant accepted that a 15 per cent discount was appropriate on the basis of her own contributory negligence; in that she was not secured by a seat belt at the time that the accident occurred.
  3. The vehicle was uninsured. It is common ground that there is no prospect of recovering from Mr Roberts monies due under the judgment. In those circumstances MIB was added as a defendant to the proceedings by an order made on 18 January 2002.
  4. The appellant claimed against MIB under clause 2 of the 1988 agreement, which had remained in force under the transitional provisions contained in clause 23 of the 1999 agreement. Clause 2.1 of the 1988 agreement was in these terms, so far as material:
  5. "If judgment in respect of any relevant liability is obtained against any person . . . and any such judgment is not satisfied in full within seven days . . . then MIB will, subject to the provisions of paragraphs (2), (3), and (4) below and to clauses 4,5 and 6 hereof, pay or satisfy . . . any sum payable . . . in respect of the relevant liability . . . whatever may be the cause of the failure of the judgment debtor to satisfy the judgment."

    Relevant liability

  6. For the purposes of clause 2.1 of the 1988 agreement "relevant liability" means a liability in respect of which a policy of insurance must insure a person in order to comply with Part VI of the Road Traffic Act 1972 as amended by the Motor Vehicles (Compulsory Insurance) Regulations 1987 (SI 1987/2171) – clause 1 of the 1988 agreement. Part VI of the 1972 Act required insurance against third party risks arising from the use of a motor vehicle on a road. The obligation to have insurance in force was imposed by section 143(1) of that Act. The section was in these terms, so far as material:
  7. "Subject to the provisions of this Part of this Act, it shall not be lawful for a person to use, or to cause or permit any other person to use, a motor vehicle on a road unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, such a policy of insurance . . . in respect of third party risks as complies with the requirements of this Part of this Act; . . ."

    A person who used, or who caused or permitted another to use, a motor vehicle on a road in contravention of the section was guilty of an offence unless he proved that the vehicle did not belong to him, that he was using it in the course of his employment and that he neither knew, nor had reason to believe, that insurance was not in force – section 143(2) of the 1972 Act. Comparable obligations to insure are now found in Part VI of the Road Traffic Act 1988.

  8. The phrase "in respect of third party risks" is not defined in Part VI of the 1972 Act; but some indication as to its meaning is to found in section 145(1) and (3)(a) of that Act:
  9. "(1) In order to comply with the requirements of this Part of this Act, a policy of insurance must satisfy the following conditions.
    . . .
    (3) Subject to subsection (4) below, the policy –
    (a) must insure such person, persons or classes of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death or bodily injury to any person caused by, or arising out of, the use of the vehicle on a road."

    It was held by this Court, in Cooper v Motor Insurers' Bureau [1985] QB 575, that, read in conjunction with section 143(1) of the 1972 Act, section 145(3)(a) did not impose upon the owner of the vehicle an obligation to have in force a policy of insurance in respect of his liability to the person who was the driver of the vehicle at the time of the use of the vehicle which gave rise to that liability – (ibid, 581G-H) . The driver was not a "third party" vis a vis the owner. So, where the driver – who does not know that the vehicle is uninsured and who is not at fault in relation to the accident from which his own injuries arise – establishes liability on the part of the owner in respect of the defective condition of the vehicle, MIB cannot be required to pay an unsatisfied judgment.

  10. In the present case the appellant was, herself, the owner of the vehicle. She knew that the vehicle was not insured. It might, perhaps, have been contended by MIB that the reasoning of this Court in the Cooper case should lead to the conclusion that, in so far as the appellant (as a person causing or permitting the vehicle to be used) or Mr Roberts (as a person using the vehicle) were under obligations imposed by sections 143(1) and 145(3)(a) of the 1972 Act, those obligations did not require there to be in force a policy of insurance which insured Mr Roberts in respect of his liability in respect of injury which the appellant might suffer arising out of his use. But that point was not taken. It is unnecessary to decide (and I do not decide) whether it would have been an answer to the appellant's claim against MIB. It was not in dispute at the trial that the judgment which the appellant obtained against Mr Roberts was a judgment in respect of a "relevant liability" for the purposes of clause 2.1 of the 1988 agreement.
  11. The exception to liability provided by clause 6.1(e) of the 1988 agreement

  12. Clause 6 of the 1988 agreement sets out circumstances in which MIB shall be excepted from liability under clause 2.1. Clause 6.1(e) is in these terms:
  13. "6.1 MIB shall not incur any liability under Clause 2 of this Agreement in a case where:
    . . .
    (e) at the time of the use which gave rise to the liability the person suffering death or bodily injury or damage to property was allowing himself to be carried in or upon the vehicle and either before the commencement of his journey in the vehicle or after such commencement if he could reasonably be expected to have alighted from the vehicle he –
    (i) knew or ought to have known that the vehicle had been stolen or unlawfully taken, or
    (ii) knew or ought to have known that the vehicle was being used without there being in force in relation to its use such a contract of Insurance as would comply with Part VI of the Road Traffic Act 1972."

    Clause 6.3 provides that references to a person being carried in a vehicle include references to his being carried "in or upon or entering or getting onto or alighting from" the vehicle.

  14. It has been common ground on this appeal – as it was before the judge – that, unless MIB can rely on the exception from liability provided by clause 6.1(e) of the 1988 agreement, it has become subject to the obligation to pay to the claimant an amount equal to the amount of the unsatisfied judgment which she has obtained against Mr Roberts. It has been common ground, also, that before the commencement of the "journey" in the vehicle in the course of which she suffered injury – whatever meaning is to be given to "journey" in that context – the appellant knew that the vehicle was being used without insurance. The issue on this appeal is whether, at the time of the use which gave rise to Mr Roberts' liability to the appellant, the appellant was allowing herself to be carried in the vehicle which he was driving.
  15. The underlying facts

  16. As I have said, Mr Roberts took no part in the proceedings. In particular, he did not give evidence at the trial. The judge accepted the appellant's account of the circumstances in which she was injured. She had met Mr Roberts about five months before the accident on 12 July 1999. For the last month or so they had been living together in a flat in Merthyr Tydfil. Money was tight; but between them they had managed to find enough to buy a cheap car. The appellant applied for registration in her name; but there was no money to pay for insurance. The judge described the events leading to the accident at paragraphs 14 to 16 of his judgment:
  17. "14. On 12 July 1999 they managed to borrow £100 and '[w]e were so happy we just decided to put £5.00 of petrol in the car and go for a drive in order to have some fun'. The first defendant drove, she was in the front passenger seat and their dog was in the back. She had been with the first defendant in the car before and knew he could drive. She also knew that he did not have a driving licence.
    15. It was a warm, sunny day. They took the road to Fochriw, a village in the hills above Merthyr, and stopped at a pub, where they took the dog out of the car and each had a pint to drink. They went back down to Merthyr to buy some provisions, including some cans of lager which they intended to drink at home later. They did not drink any of the lager before the accident. She was cross-examined about her consumption of alcohol but I accept her evidence on the point.
    16. They went back up the mountainside, taking an old track which runs parallel with the road from Merthyr to Fochriw. The claimant's evidence is that they wanted to go back up the mountainside because the dog needed some more exercise. . . ."
  18. At paragraph 17 of his judgment the judge took up the account from the appellant's witness statement:
  19. "19. Nathan began to make handbrake turns. I had been in the car before with Nathan when he wanted to do handbrake turns but I and the dog got out of the car because I did not want to take part. On one occasion he was doing them on a gravelly bit near Cyfartha Park and I found that very scary because he could easily have driven into a wall in the middle of the car park. On that occasion I asked Nathan to stop the car and he did so when asked and myself and the dog got out.
    20 Now Nathan was doing handbrake turns again on the gravel path whilst we were driving. He would accelerate, then pull the handbrake up and then he would have to keep really good control of the steering wheel as the car spun round. The dog was flying about in the back seat.
    21. I did not like what Nathan was doing and I was telling him to stop it. I did not like the handbrake turns, they scared me, the dog was being flung about and I did not know how I was going to end up and whether there would be damage to ourselves as well as to the car. Despite me telling him to stop it, he carried on doing more handbrake turns.
    22. I became really fed-up and frightened and concerned for my safety and I got very agitated, I said words like: 'for God's sake stop the car'. Nathan knew I did not like the handbrake turns. He also knew I was concerned for the dog in the back seat. I was certain he was stopping to let me and the dog out. The car had slowed down. He had previously allowed me to get out. I unclipped my seat-belt in order to get the dog out as soon as possible. I was sure the dog needed to relieve itself. Suddenly and unexpectedly Nathan accelerated again, made another handbrake turn and lost control of the steering. He did not pull the steering wheel around quick enough. We were going too fast. I could not have got my seat-belt fastened in time even if I had tried. I do not recall whether or not I attempted this.
    23. The car carried on forward and went off the gravel track into a ditch, then overturned…."
  20. As a result of the accident the appellant suffered serious injuries. These included a fracture of the spine which has rendered her paraplegic.
  21. Was the appellant "allowing herself to be carried" at the relevant time?

  22. As the judge pointed out, at paragraph 35 of his judgment, there are two distinct conditions to be satisfied before MIB can rely on the exception provided by clause 6.1(e) of the 1988 agreement. The first – which the judge described as "consent" - is found in the opening words "the person . . . was allowing himself to be carried in or upon the vehicle." The second – which the judge described as "knowledge" – is found in the words "he knew or ought to have known" that the vehicle had been stolen, unlawfully taken or was being used without insurance (as the case may be). As the judge recognised (ibid) there is an apparent distinction, made in the language of clause 6.1(e) itself, as to the point in time at which each of those conditions is to be satisfied. The first of the two conditions (consent) is to be satisfied "at the time of the use which gave rise to the liability". The second (knowledge) is to be satisfied "either before the commencement of his journey in the vehicle or after such commencement if he could reasonably be expected to have alighted from the vehicle".
  23. The judge appreciated that, if the difference in language reflected a difference in intent as to the point of time at which each of the two conditions – consent on the one hand and knowledge on the other – was to be satisfied, then it was open to him to adopt what he described as "a narrow approach" to the meaning of the phrase "at the time of the use which gave rise to the liability" and to hold that "the question of consent is to be determined at the time of the accident . . . rather than at the commencement of the journey". He observed that:
  24. ". . . if one focuses on consent at the time of the accident, then it can be said with some force that, although the claimant originally consented to being carried in the car, she had on the evidence withdrawn her consent by the time of the accident. If that is right, the exclusion cannot be relied on against her."

    He described that as the strongest point in the appellant's favour.

  25. The judge rejected that approach. He reminded himself of the provisions of the Second Council Directive of European Economic Community on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles – directive 84/5/EEC of 30 December 1983 – and, in particular, of the permitted exception to the requirement in article 1(4) of that directive. The article, and the permitted exception, are in these terms, so far as material:
  26. "Each Member State shall set up and authorize a body with the task of providing compensation, at least up to the limits of the insurance obligation for . . . personal injuries caused by . . . a vehicle for which the insurance obligation . . . has not been satisfied. . . .
    However, Member States may exclude the payment of compensation by that body in respect of persons who voluntarily entered the vehicle which caused the damage or injury when the body can prove that they knew it was uninsured."

    At paragraph 36 of his judgment the judge expressed the view that to adopt the narrow approach urged on behalf of the appellant would be to give insufficient weight to the need to construe clause 6.1(e) of the 1988 agreement in accordance with that provision. He said this:

    "That provision focuses on whether the person voluntarily entered the vehicle. In order to adopt a consonant construction of the relevant part of clause 6(1)(e), 'at the time of the use which gave rise to the liability the person … was allowing himself to be carried in … the vehicle', one ought to give it the same focus. Thus in order to determine whether a person was allowing himself to be carried in the vehicle at the time of the relevant use of that vehicle, one should look at whether he entered the vehicle voluntarily. If he did, then for the purposes of clause 6(1)(e) he was allowing himself to be carried in the vehicle. It makes no difference if thereafter he objects to the driving or asks the driver to stop the vehicle. That is not sufficient to negative the effect of the voluntary entry into the vehicle so as to justify the conclusion that he was no longer allowing himself to be carried."
  27. The judge accepted that there might be circumstances – which he described as exceptional - in which, despite the fact that the person entered the vehicle voluntarily, the permitted exception could not have been intended to apply. He accepted that those circumstances would include a case where "the original voluntary entry into the vehicle would have been negatived by supervening duress". He adopted the submission of counsel for MIB that clause 6.1(e) of the 1988 agreement, taken as a whole, was directed "at voluntary acceptance of the risk of being driven in an uninsured vehicle". But, as he held (at paragraph 38 of his judgment):
  28. "A person who voluntarily enters a vehicle knowing of the lack of insurance must be taken to have accepted that risk and cannot negative such acceptance by objecting to the driving or even by asking the driver to stop the vehicle."
  29. The judge found support for his approach in the speech of Lord Nicholls of Birkenhead in White v White and the Motor Insurers' Bureau [2001] UKHL 9, [2001] 1WLR 481, [2001] 2 All ER 43. The question in that appeal was whether the phrase "knew or ought to have known" in clause 6.1(e) of the 1988 agreement was apt to include knowledge which the person injured would have acquired if he had made the inquiries which an ordinarily prudent person in his position would have made. Lord Nicholls (with whom three of the other members of the House agreed, Lord Scott of Foscote dissenting) held that it was not. That is not a point which arises in the present case. But, in explaining how the word "knew" was to be construed in the context of the permitted exception to article 1(4) of the directive 84/5/EEC of 30 December 1983, Lord Nicholls had said this, (ibid, at paragraph 14):
  30. "The context is an exception to a general rule. The Court of Justice has stressed repeatedly that exceptions are to be construed strictly. Here a strict and narrow interpretation of what constitutes knowledge for the purpose of article 1 is reinforced by the subject matter. The subject matter is compensation for damage to property or personal injuries caused by vehicles. The general rule is that victims of accidents should have the benefit of protection up to specified minimum amounts, whether or not the vehicle which caused the damage was insured. The exception, therefore, permits a member state, contrary to the general rule, to make no provision for compensation for a person who has suffered personal injury or damage to property. Proportionality requires that a high degree of personal fault must exist before it would be right for an injured passenger to be deprived of compensation. A narrow approach is further supported by the other prescribed limitation on the permissible ambit of any exclusion; the person claiming compensation must have entered the vehicle voluntarily. The need for the passenger to have entered the vehicle voluntarily serves to confirm that the exception is aimed at persons consciously colluding in the use of an uninsured vehicle. . . ."
  31. The judge placed emphasis on the final sentence of the passage just cited. This was, as he saw it, a plain case of "conscious collusion" in the use of an uninsured vehicle. As he put it, at paragraph 39 of his judgment:
  32. "It is abundantly clear that [the appellant] and the first defendant colluded in the use of the car without insurance. It was her car, she knew there was no insurance, she knew that he had no driving licence and that he was in the habit of doing handbrake turns, yet she embarked willingly upon the journey as his passenger in the car."

    The judge dismissed the claim against MIB.

  33. For my part, I think that the judge was right to accept the submission made on behalf of MIB that the object and intent of clause 6.1(e) of the 1988 agreement, taken as a whole, was to relieve MIB from the obligation imposed by clause 2.1 of that agreement in cases where the person injured had accepted the risk of being driven in the vehicle, knowing it to be uninsured. There are, of course, two elements to that risk. There is the risk that, while in the vehicle, the person will be injured; and there is the risk that the injury will be wholly or partly the fault of the driver. Voluntary acceptance of the risk of being driven in the uninsured vehicle, as it seems to me, requires both acceptance of the risk of being injured and acceptance of the risk that, if injured, compensation will not be recoverable from the uninsured driver whose fault has caused the injury.
  34. The two conditions which must be satisfied before MIB can rely on the exception provided by clause 6.1(e) of the 1988 agreement – consent and knowledge – are relevant to a voluntary acceptance of the two elements of the risk. Acceptance of the risk of being injured while in the vehicle requires that, "at the time of the use" which gave rise to the injury, the person injured consented to being in the vehicle – that is to say, "was allowing himself . . . to be carried in the vehicle". Acceptance of the risk that, if injured, compensation will not be recoverable from the uninsured driver of that vehicle requires that the person injured had knowledge that the driver was uninsured. It is that combination of consent and knowledge which, as it seems to me, led Lord Nicholls to refer, in White, to "persons consciously colluding in the use of an uninsured vehicle".
  35. I find it impossible to identify any reason in principle why the point of time at which the two conditions – consent and knowledge - fall to be satisfied should differ; nor any reason in principle why that point should not be "the time of the use which gave rise to the liability" – as, plainly, it is in relation to the first of the two conditions. I accept that there is an apparent distinction in the language of clause 6.1(e) as to the point in time relevant to each condition. But, as it seems to me, that apparent distinction is no more than a reflection of the difference, in practice, between the circumstances in which consent may be given and the circumstances in which knowledge may be acquired; and the difference between the circumstances in which consent, once given, may be withdrawn and those in which knowledge, once acquired, may be lost. Different language is required to meet the different problems which will arise in practice. In my view, the apparent distinction in language does not reflect a difference of substance as to the point of time at which the parties to the 1988 agreement intended that each of the two conditions – consent on the one hand and knowledge on the other – is to be satisfied,
  36. It is difficult (but not impossible) to conceive of circumstances in which consent to being carried in the vehicle will be given, for the first time, after the relevant journey has begun. But, in practice, consent will given (if at all) before the person giving the consent enters the vehicle or (at the latest) before the vehicle moves off. The issue, in relation to consent, is likely to be whether, once given, the consent has been withdrawn before "the time of the use which gave rise to the liability". By contrast, it is not at all difficult to conceive of circumstances in which knowledge that there is no policy of insurance in force is acquired after the relevant journey has commenced. An obvious example of such a case would be where the absence of insurance is revealed in response to the passenger's inquiry during the course of the journey. What is difficult is to conceive of circumstances in which a person who, before the relevant journey has commenced, knows that the vehicle is uninsured does not continue to have that knowledge throughout the journey. The issue, in relation to knowledge, is likely to be whether (and, if so, when) it was first acquired; not whether knowledge which the passenger is shown to have had at the commencement of the journey has been lost thereafter.
  37. Voluntary acceptance of the risk that compensation will not be recoverable from the uninsured driver requires that, before the commencement of the relevant journey or (at the latest) no later than the last reasonable opportunity to alight, the person injured had knowledge that the vehicle in which he is allowing himself to be carried is not insured. A person who discovers, in the course of a journey which he cannot reasonably be expected to bring to an end by alighting from the vehicle, that the vehicle is not insured cannot sensibly be said to have accepted the risk of inability to recover compensation from the uninsured driver. But, a person who has accepted that risk by entering the vehicle with the relevant knowledge – or by failing to alight when, having acquired that knowledge in the course of the journey, he could reasonably have been expected to do so – and who allows and continues to allow himself to be carried in the vehicle up to and including the time of the use which gave rise to the uninsured driver's liability, can sensibly be said to have accepted the risk of being driven in the vehicle, knowing it to be uninsured, at the time of that use.
  38. The question whether the person has accepted the risk of being carried in the vehicle, knowing it to be uninsured, has to be answered by reference to the use which gives rise to the uninsured driver's liability and to facts as they are at the time when that liability arises. But, as I have said, there are two elements to that risk; and in relation to the second element, the answer to that question is provided by the circumstances in which (and the time at which) knowledge that the vehicle was uninsured was first acquired. There is, inherent in clause 6.1(e), a presumption that, once acquired, knowledge that the vehicle is uninsured persists throughout the journey. But there is no presumption that consent, once given, cannot be withdrawn. That depends on the facts in each case.
  39. To my mind, therefore, the judge would have been wrong to hold, without qualification, that:
  40. ". . . in order to determine whether a person was allowing himself to be carried in the vehicle at the time of the relevant use of that vehicle, one should look at whether he entered the vehicle voluntarily. If he did, then for the purposes of clause 6(1)(e) he was allowing himself to be carried in the vehicle."

    The judge did not hold that that test was to be applied without qualification. He accepted that there might be:

    ". . . exceptional circumstances in which, despite the fact that the person entered the vehicle voluntarily, the exclusion cannot be intended to apply . . ."

    He was correct, I think, to hold that a person who had entered the vehicle voluntarily – and so had allowed himself to carried in it – did not withdraw consent to being carried by voicing an objection to the manner in which the vehicle was driven. Something more than that is required; the protest must go beyond an objection to the manner of driving. As it seems to me, the protest must amount to an unequivocal repudiation of the common venture to which consent was given when the protestor entered the vehicle.

  41. In my view the judge was correct to hold that "an express request to the driver to stop the vehicle" would not, of itself, be sufficient to withdraw consent to being carried. But he would not have been correct to hold (if he did) that an unequivocal request to allow the protestor to alight from the vehicle – coupled, as it might have to be if the vehicle was moving, with a request to stop the car for that purpose – was insufficient to withdraw consent. Thereafter, save for the limited purpose of enabling the driver to comply with that request, the protestor cannot be said to be "allowing himself to be carried in . . . the vehicle" for the purposes of clause 6.1(e) of the 1988 agreement.
  42. I find it impossible to be confident that the judge appreciated the significance of the distinction between a request to stop the vehicle – so bringing to an end, at least temporarily, the manner of driving to which the appellant was objecting – and an unequivocal request to stop so that she could get out, sufficient to repudiate the common venture on which they had together embarked when they agreed "to go for a drive in order to have some fun". I think it is necessary, therefore, to approach this appeal on the basis that the judge may well have applied the wrong test.
  43. In other circumstances a conclusion that the judge may well have applied the wrong test to the facts would lead the Court to allow the appeal and remit the case, either to the judge with a direction that he reconsider his decision in the light of the test which ought to be applied to the facts which he found, or (if the findings of fact are insufficient for that purpose) for a retrial by that or another judge. In the particular circumstances of this case I am persuaded that remission would not be the appropriate course. The only evidence given at trial was that of the appellant herself; her evidence was substantially unchallenged; and where there was challenge to her evidence, the judge decided the issue of fact in her favour. In my view the proper course for this Court – in the light of the overriding objective set out in CPR 1.1 – is to reach its own conclusion on the basis that the evidence on which the appellant is entitled to rely is that contained in her witness statement of 16 June 2002.
  44. The material paragraphs of that witness statement are set out earlier in this judgment. It is, I think, impossible to find anything in paragraphs 19, 20 or 21 of that statement which (taking those paragraphs alone) provides support for a finding of an unequivocal request by the appellant that the car be stopped so that she could get out – as distinct from a request that Mr Roberts stop executing handbrake turns. For that finding the appellant must rely on the first eight sentences of paragraph 22, which (for convenience) I set out again:
  45. "I became really fed-up and frightened and concerned for my safety and I got very agitated, I said words like: 'for God's sake stop the car'. Nathan knew I did not like the handbrake turns. He also knew I was concerned for the dog in the back seat. I was certain he was stopping to let me and the dog out. The car had slowed down. He had previously allowed me to get out. I unclipped my seat-belt in order to get the dog out as soon as possible. I was sure the dog needed to relieve itself. . . ."
  46. I accept that, had Mr Roberts stopped the car, the appellant would have alighted; if only for the comfort and benefit of the dog. But I do not find in that passage of her evidence an assertion that she made an unequivocal request to Mr Roberts that the car be stopped so that she could get out; in terms sufficient to bring it home to him that she was repudiating the common venture on which they had together embarked when they left Merthyr Tydfil on 12 July 1999 for a drive in her car. It is, I think, significant that – in executing handbrake turns - Mr Roberts was doing what he had done on a previous occasion. It seems reasonably plain that executing handbrake turns on a gravel surface came within his understanding of "a drive in order to have some fun"; and reasonably plain that the appellant must have appreciated that. There was nothing unusual, in the context of their common experience, in what he was doing. If, as I think, the true test for withdrawal by the appellant of her consent to being carried in the vehicle at the time of the use which gave rise to Mr Roberts' liability required that she do something to bring home to him her unequivocal repudiation of the common venture, I am unable to hold that the appellant has met that test.
  47. Conclusion

  48. I would dismiss this appeal.
  49. Lord Justice May:

  50. I agree that this appeal should be dismissed for the reasons given by Chadwick LJ, whose account of the facts and circumstances I gratefully adopt. I shall not repeat all the statutory material to which he has referred nor cite at length from the opinion of Lord Nicholls of Birkenhead in the case of White v White and the Motor Insurers Bureau [2001] UKHL 9.
  51. Article 1 of the Second EEC Motor Insurance Directive 84/5/EEC of 30th December 1983 requires each member state to have compulsory motor insurance covering third party liability for both personal injury and damage to property. Article 1(4) is concerned with unidentified and uninsured vehicles. It provides:
  52. "Each Member State shall set up or authorise a body with the task of providing compensation, at least up to the limits of the insurance obligation, for damage to property or personal injuries caused by an unidentified vehicle or a vehicle for which the insurance obligation provided for in paragraph 1 has not been satisfied."
  53. There is, however, a permitted exception to this as follows:
  54. "However, Member States may exclude the payment of compensation by that body in respect of persons who voluntarily entered the vehicle which caused the damage or injury when the body can prove that they knew it was uninsured."
  55. The body established to comply with this part of the Directive in Great Britain is the Motor Insurers Bureau. For the purposes of the present proceedings, compliance was achieved by an agreement dated 21st December 1988 between the Secretary of State for Transport and the MIB. Clause 2.1 of this Agreement obliges the MIB to satisfy a judgment in respect of any relevant liability, if the judgment is not satisfied in full within 7 days from the date on which the person or persons in whose favour the judgment was given became entitled to enforce it. Clause 6 contains exceptions. The exception relevant to the present appeal is in Clause 6.1(e), which provides:
  56. "MIB shall not incur any liability under clause 2 of this Agreement in a case where:
    (e) at the time of the use which gave rise to the liability the person suffering death or bodily injury or damage to property was allowing himself to be carried in or upon the vehicle and either before the commencement of his journey in the vehicle or after such commencement if he could reasonably be expected to have alighted from the vehicle he –
    (i) knew or ought to have known that the vehicle has been stolen or unlawfully taken, or
    (ii) knew or ought to have known that the vehicle was being used without there being in force in relation to its use such a contract of insurance as would comply with Part VI of the Road Traffic Act 1972."
  57. The word "use" also appears in sub-clauses (a), (b) and (d) of clause 6.1. As Mr Pearce-Higgins explained, expressions with the word "use" mirror the terms of section 143 of the Road Traffic Act 1972. The expression in sub-clause (d) "the use giving rise to the damage" is parallel with the expression in sub-clause (e) "the use which gave rise to the liability". The liability in that sub-clause is that which the MIB undertakes in clause 2, that is "relevant liability" as defined in clause 1 of the Agreement incurred under a judgment which remains unsatisfied for more than 7 days.
  58. The issue in White concerned the construction in the MIB agreement of the words "knew or ought to have known" that the vehicle was uninsured. Lord Nicholls emphasised that it was always important to identify, if possible, the purpose the provision was intended to achieve. Reference to the Directive showed that the permitted exception was "when the body can prove that they knew it was uninsured". The context was an exception to the general rule, and the European Court of Justice had stressed repeatedly that exceptions are to be construed strictly. Proportionality required that a high degree of personal fault must exist before it would be right for an injured passenger to be deprived of compensation. The person claiming compensation must have entered the vehicle voluntarily. This served to confirm that the exception is aimed at persons who were "consciously colluding in the use of an uninsured vehicle". A passenger who was careless in the matter of the existence of obligatory insurance did not collude in the use of an uninsured vehicle. The judge only made a finding of carelessness. The accident in question fell outside the circumstances in which the Directive permits a Member State to exclude payment of compensation. The MIB agreement was to be interpreted against this background. The words "ought to have known" were intended to bear the same meaning as "knew" in the Directive. The exception spelled out in clause 6(1)(e)(ii) of the Agreement was intended by the parties to carry it through the provisions of the Directive.
  59. The words were to be interpreted restrictively. "Ought to have known" was apt to include knowledge which an honest person who enters the vehicle voluntarily would have. It includes the case of a passenger who deliberately refrains from asking questions. It is not apt to include mere carelessness or negligence. The crucial question in the present appeal is whether "at the time of the use which gave rise to the liability …[the claimant] … was allowing [herself] to be carried in … the vehicle". There is no doubt but that at all times she knew that the vehicle was uninsured. The answer to the question is firstly a matter of construction, and then a matter of applying the facts as found by the judge to that construction.
  60. The judge set out the claimant's essential case in paragraph 35 of his judgment as follows:
  61. "The need for a restrictive construction gives rise to what I regard as the strongest point in the claimant's favour. Clause 6(1)(e), so far as material, lays down two separate conditions for the exclusion to apply. The first may be described as consent to being carried ("allowing himself to be carried") and the second is knowledge of the lack of insurance ("knew or ought to have known"). On a narrow approach the question of consent is to be determined at the time of the accident ("at the time of the use which gave rise to the liability") rather than at the commencement of the journey: it is the question of knowledge that is linked in to the commencement of the journey("either before the commencement of his journey …"); and if one focuses on consent at the time of the accident, then it can be said with some force that, although the claimant originally consented to being carried in the car, she had on the evidence withdrawn her consent by the time of the accident. If that is right, the exclusion cannot be relied on against her."
  62. The judge gave his reasons for rejecting that submission in paragraph 36 of his judgment as follows:
  63. "In my view, however, that is to adopt an unduly restrictive construction and to give insufficient weight to the need to construe clause 6(1)(e) in accordance with the relevant provision of the Directive. That provision focuses on whether the person voluntarily entered the vehicle. In order to adopt a consonant construction of the relevant part of clause 6(1)(e), "at the time of the use which gave rise to the liability the person … was allowing himself to be carried in … the vehicle", one ought to give it the same focus. Thus in order to determine whether a person was allowing himself to be carried in the vehicle at the time of the relevant use of that vehicle, one should look at whether he entered the vehicle voluntarily. If he did, then for the purposes of clause 6(1)(e) he was allowing himself to be carried in the vehicle. It makes no difference if thereafter he objects to the driving or asks the driver to stop the vehicle. That is not sufficient to negative the effect of the voluntary entry into the vehicle so as to justify the conclusion that he was no longer allowing himself to be carried."
  64. The judge acknowledged that there might be exceptional circumstances in which, despite the fact that the person entered the vehicle voluntarily, the exclusion cannot be intended to apply. He gave as an example a case where someone gets into a vehicle voluntarily but is subsequently prevented at knifepoint from getting out when the vehicle comes temporarily to a halt. He was prepared to accept that the exclusion did not apply to the continuation of the journey in those circumstances. The original voluntary entry into the vehicle would have been negatived by supervening duress. But he considered that such exceptional circumstances did not include a case of objection to the driving or even an express request to the driver to stop the vehicle.
  65. As may be seen, the judge's essential decision was that, in order to determine whether a person was allowing himself to be carried in the vehicle at the time of the relevant use of that vehicle, it was necessary to look at whether he entered the vehicle voluntarily. He derived this from the terms of the Directive, considering that it was necessary to adopt a consonant construction of the relevant part of clause 6(1)(e) of the MIB Agreement. In my judgment, this was wrong. I agree with Mr Langstaff's submission that there is no intrinsic reason why a Member State should not put in place provisions in compliance with the Directive which are more generous to passengers in uninsured motor vehicles than those which the Directive require as a minimum. Construing the exception restrictively means construing it so as only to bring within it those persons and circumstances which a strict construction requires. If on its proper construction the Agreement excludes even fewer people and circumstances than this, there is no principle which requires the construction to be pulled back to be consonant with the Directive.
  66. The judge recognised that there may be circumstances in which a person at the start of a journey in a motor vehicle was allowing himself to be carried in the vehicle knowing it to be uninsured within the terms of the exception; but that circumstances occurred later in the journey in which the person withdrew their consent to this so that the exception ceased to apply. The judge's example was one of duress. Another example would be if a person, who knew the vehicle was uninsured, allowed himself to be carried in it on an intended short trip to the local supermarket, but the driver suddenly announced that he was going to drive at great speed to a place 100 miles away. If the passenger made it clear that he did not consent to this long distance drive in an uninsured car and demanded to be let out at the next lay-by, but the driver drove on regardless, I do not consider that the exception would apply once the first lay-by had been passed. The passenger would not thereafter be allowing himself to be carried in the vehicle. He would in all probability be technically falsely imprisoned. If he were then injured in an accident and established liability for the accident against the driver, the exception would not apply. The example also incidentally in my view indicates that the words "at the time of the use which gave rise to the liability" refer to the use at the time of the accident. This accords with the other instances where the word "use" appears in clause 6.1.
  67. In my judgment, therefore, clause 6(1)(e) of the Agreement is to be construed so that, if a person is voluntarily travelling in a vehicle which he knows to be uninsured, there may be circumstances in which he withdraws his consent to being carried in the vehicle and demands to be let out of the vehicle; and that, if despite this the driver passes the next reasonable opportunity to let the passenger out, the passenger is no longer allowing himself to be carried in the vehicle. He is, as I have indicated, technically imprisoned. Circumstances in which this will arise will necessarily be very rare. The court will examine the facts against the general background that the exception in both the Directive and the Agreement is aimed at persons who consciously collude in the use of an uninsured vehicle.
  68. Since, for the reasons which I have given, I consider that the judge misconstrued clause 6.1(e) of the Agreement, it is not surprising that he did not, as I think, make a specific finding whether the claimant sufficiently withdrew her consent so that she was no longer allowing herself to be carried in the vehicle. Such a finding is not a finding of primary fact, but an inference from the primary facts. This court is invited to supply the inferential conclusion which the judge himself did not clearly reach. I would accede to that invitation, since I believe that the other possibility, a further first instance hearing or a retrial, would not be satisfactory. This court is as well placed as any other to consider what inference should be drawn from the primary facts found by the judge.
  69. The relevant factual material to be derived from the judge's judgment is as follows:
  70. "15. It was a warm, sunny day. They took the road to Fochriw, a village in the hills above Merthyr, and stopped at a pub, where they took the dog out of the car and each had a pint to drink. They went back down to Merthyr to buy some provisions, including some cans of lager which they intended to drink at home later. They did not drink any of the lager before the accident. …
    16. They went back up the mountainside, taking an old track which runs parallel with the road from Merthyr to Fochriw. The claimant's evidence is that they wanted to go back up the mountainside because the dog needed some more exercise. …
    17. What happened next is described as follows in the claimant's witness statement:
    "19. Nathan began to make handbrake turns. I had been in the car before with Nathan when he wanted to do handbrake turns but I and the dog got out of the car because I did not want to take part. On one previous occasion he was doing them on a gravely bit near Cyfartha Park and I found that very scary because he could easily have driven into a wall in the middle of the car park. On that occasion I asked Nathan to stop the car and he did so when asked and myself and the dog got out.
    20. Now Nathan was doing handbrake turns again on the gravel path whilst we were driving. He would accelerate, then pull the handbrake up and then he would have to keep really good control of the steering wheel as the car spun round. The dog was flying about in the back seat.
    21. I did not like what Nathan was doing and I was telling him to stop it. I did not like the handbrake turns, they scared me, the dog was being flung about and I did not know how I was going to end up and whether there would be damage to ourselves as well as to the car. Despite me telling him to stop it, he carried on doing more handbrake turns.
    22. I became really fed-up and frightened and concerned for my safety and I got very agitated, I said words like: 'for God's sake stop the car'. Nathan knew I did not like the handbrake turns. He also knew I was concerned for the dog in the back seat. I was certain he was stopping to let me and the dog out. The car had slowed down. He had previously allowed me to get out. I unclipped my seat-belt in order to get the dog out as soon as possible. I was sure the dog needed to relieve itself. Suddenly and unexpectedly Nathan accelerated again, made another handbrake turn and lost control of the steering. He did not pull the steering wheel around quick enough. We were going too fast. I could not have got my seat-belt fastened in time even if I had tried. I do not recall whether or not I attempted this.
    23. The car carried on forward and went of the gravel track into a ditch, then overturned …"
    19. In cross-examination the claimant accepted that she knew that the first defendant had a habit of making handbrake turns when he was out driving.
    20. More importantly, she did not accept that in her evidence to the court she had exaggerated her concerns about the first defendant's driving and in particular about telling the first defendant to stop the car because she was frightened. The suggestion put to her was that she had only asked him to stop so as to let the dog out to go to the toilet. This was based on the following passage from a statement she had given to the police on 20 January 2000, which was suggested to be more accurate than the account she had given to the court:
    "8. We parked up on the grass verge but then Nathan moved off and started making handbrake turns on the grass. Nathan had a habit of making handbrake turns when he was out driving. (This sentence is not in the judgment, but supplied from the statement).
    9. We continued along and I then became aware that we were on a gravel track. He would continually accelerate away from stop, apply the handbrake, turn the steering wheel and swing the car around on the track.
    I quickly became fed-up of this conduct because I felt he was wearing the car out prematurely and I felt uncomfortable and concerned for my safety.
    I can recall that the dog was being thrown about in the back of the car.
    10. I said something to Nathan along the lines of, 'could the dog be let out to go to the toilet?'
    I kept asking him to stop but he continued. He would rive along the track for a few yards then do a handbrake turn to turn around and then go down and do the same again, going back and fore.
    As I told him to stop to leave the dog out I can remember taking my seatbelt off. I thought he was agreeing to stop.
    I can then remember him saying he was going to do one more or something similar.
    21. I have given careful consideration to the suggestion that the claimant has exaggerated or amplified her account as a result of being made aware of the issue under clause 6(1)(e) through questioning by her solicitor. Both in her statement to the police and in her evidence to the court she admitted in effect that the first defendant had at first made handbrake turns without objection from her. As to the point when she asked the first defendant to stop, although her police statement appeared to link the request to stop with the dog being let out to go to the toilet, it also contained the wider elements of concern for her own safety and concern for the dog which were spelled out in her evidence; and although the police statement did not mention the actual words described in her evidence ("for God's sake stop the car") or the manner in which those words were uttered (shouted, as she described in cross-examination), it did refer to repeated requests to the first defendant to stop. There is in my view no fundamental inconsistency between the two versions. It is understandable that she should give greater detail than in her police statement when questioned later by her solicitor. Further, I have no reason to reject her evidence that she was unaware of the MIB agreement when questioned by her solicitor. Most importantly, I saw the claimant give evidence, including in particular her cross-examination on these issues, and in my judgment she was a witness of truth. For all those reasons I accept her evidence and in particular the account given in her witness statement concerning the events immediately prior to the accident. "
  71. Counsel had submitted on behalf of the claimant that she had expressly instructed the first defendant to stop the car but he had driven on in disregard of her instructions. She had withdrawn her consent to being carried in the vehicle and was therefore no longer allowing herself to be carried in it. The judge rehearsed the submission again in paragraph 35 of his judgment, which I have already quoted. He said that he saw some force in the submission. The judge then on four occasions in later paragraphs of his judgment refers to a person objecting to the driving and even asking the driver to stop the vehicle – see paragraphs 36, 37, 38 and 40. Although the first three of these were in form impersonal references during the judge's consideration of the construction of the clause, they clearly in the context amount to a summary of the findings of fact which he had made. He said in paragraph 40 of his judgment:
  72. "In any event she was in my view allowing herself to be carried in the car at the time of the use which gave rise to the liability. Although I have accepted her account of her concern for her own safety and her requests to the first defendant to stop the car, for the reasons I have given, that is not a sufficient basis for concluding that she was not allowing herself to be carried in the car at the time of such use."

    I do not consider that this paragraph may be regarded as an inferential finding of fact on the question which in my judgment needed to be decided in this case. The paragraph admittedly begins with the words "in any event". But the shortly expressed finding was "for the reasons I have given", which did not address the critical question.

  73. Finally, the judge's findings in paragraph 39 of his judgment, although not directed to the question which I regard as critical, are nevertheless distinctly unhelpful to the claimant. He said this:
  74. "If one looks at the present case in terms of conscious collusion in the use of an uninsured vehicle, then it must clearly be decided against the claimant. It is abundantly clear that she and the first defendant colluded in the use of the car without insurance. It was her car, she knew there was no insurance, she knew that he had no driving licence and that he was in the habit of doing handbrake turns, yet she embarked willingly upon the journey as his passenger in the car."
  75. The question, as I have indicated is whether the court should conclude from this material that the claimant withdrew her consent to being driven in her own motor car with sufficient clarity and determination so that, at the time of the accident, she was not allowing herself to be carried in the vehicle. I do not consider that the court can or should reach that conclusion. Mr Langstaff accepted that she did not withdraw her consent by telling Nathan to stop what he was doing. In other circumstances, it would not be sufficient for a passenger in a car being driven on a motorway to tell the driver he knew to be uninsured to stop driving at 100 mph and reduce his speed. That is not demanding to be let out of the car. Mr Langstaff accepted that the material in the passages from the claimant's statement to the police which the judge quoted were not evidence of a sufficient withdrawal of consent. She was asking Nathan to stop mainly so that the dog could leave the car to relieve itself. Insofar as she was asking him to stop making handbrake turns, this did not extend to a demand that she herself should be let out of the car. Her written evidence also included wanting to enable the dog to relieve itself and she unclipped her seatbelt for that purpose. The high point of her evidence was the sentence in her written statement in which she said that she became really fed-up and frightened and concerned for her safety; that she got very agitated and said words like "For God's sake stop the car".
  76. The judge accepted the claimant as a witness of truth. He said that in his view there was no fundamental inconsistency between her statement to the police and her written evidence. In my view, the thrust of the evidence was that the claimant told Nathan to stop doing handbrake turns; that she told him to stop the car out of concern for her own safety, but also to enable the dog to relieve itself. As between the two, the emphasis in the police statement was on the dog. What she did not do was to demand to be let out of the car so as to dissociate herself from its use.
  77. This evidence in my view has to be seen against a background unfavourable to the claimant. It was her car. She knew that it was uninsured. She knew that Nathan was not licensed to drive it. She knew that Nathan had a habit of making handbrake turns when he was out driving. They drove up the mountainside to the old track which was, no doubt, a place where Nathan was likely to do his handbrake turns. He did indeed make handbrake turns there at first without objection from her. She did not clearly demand to be let out of the car so as to dissociate herself from Nathan's driving. She did not, as she would have been entitled to, forbid him from driving her car. If she had got out of the car to enable the dog to relieve itself, she would no doubt have got back into it and continued the uninsured journey.
  78. In my judgment, the proper inferential finding on this evidence is that the claimant was allowing herself to be carried in this car at the time of the accident when she knew that it was uninsured. She was throughout aiding and abetting the unlawful use of a motor car. She was consciously colluding in the use of her own uninsured vehicle. There was a high degree of personal fault. I do not consider that the facts come anywhere near false imprisonment on any burden or standard of proof. I entirely acknowledge that the relevant question under the exception on the facts of this case may well not be identical with the question whether the claimant was falsely imprisoned. I also acknowledge that to allude to false imprisonment is to introduce somewhat emotive terms. But I do consider that something akin to false imprisonment would be necessary on facts such as these for a conclusion that the claimant was not allowing herself to be carried in the vehicle at the relevant time.
  79. For these reasons, I too would dismiss this appeal.
  80. Lord Justice Pill:

  81. The issue is whether Miss Claire Pickett, "at the time of the use [of the vehicle] which gave rise to the liability" was allowing herself to be carried in the vehicle within the meaning of those expressions in Clause 6.1(e) of the 1988 MIB agreement.
  82. Chadwick LJ has set out the facts. The vehicle was driven on the mountain track from Merthyr to Fochriw, with Miss Pickett as passenger. The accident happened when the driver, Mr Nathan Roberts, was doing handbrake turns on an area of gravel on or alongside the track. He lost control of the vehicle which went into a ditch and overturned.
  83. I respectfully agree with the propositions Chadwick LJ has stated at paragraphs 22, 24 and 26 of his judgment:
  84. a) The issue, in relation to consent, is likely to be whether, once given, the consent has been withdrawn before "the use which gave rise to the liability".
    b) The question whether the person has accepted the risk of being carried in the vehicle, knowing it to be uninsured, has to be answered by reference to the use which gives rise to the uninsured driver's liability and to the facts as they are at the time when the liability arises.
    c) There is no presumption that consent, once given, cannot be withdrawn. That depends on the facts in each case.
    d) The judge would not have been correct to hold (if he did) that an unequivocal request to allow the protestor to alight from the vehicle – coupled as it might have to be if the vehicle was moving, with a request to stop the car for that purpose – was insufficient to withdraw consent.
  85. I agree with Chadwick LJ that the judge did not apply the correct test when holding that, save possibly in exceptional circumstances, consent should be judged at the moment of entry to the vehicle (paragraphs 36 and 38 of his judgment). Moreover, if the judge held, as he appears to have done at paragraph 36 of his judgment, that consistency with Directive 84/5/EEC required that approach, he was in my respectful view, in error. The relevant part of Article 1(4) of the Directive is set out by Chadwick LJ at paragraph 15 of his judgment. Member States may exclude liability in a body such as the MIB "in respect of persons who voluntary entered the vehicle". That is a permitted exception to a general insurance obligation. Member States may, however, place limits on that exception, if they see fit, as recognised by Chadwick LJ and May LJ and the exception is limited in the MIB agreement by the concept of consent to the use. There is a public as well as a private interest in a passenger having the opportunity to disassociate himself from a use to which he objects or in which he does not wish to participate.
  86. The relevance of the speech of Lord Nicholls of Birkenhead in White v White and the Motor Insurers' Bureau [2001] UKHL9, [2001] 1WLR 481, in the present context, is the statement, at paragraph 14, that such exceptions are to be construed strictly. "A strict and narrow interpretation of what constitutes knowledge [of lack of insurance] for the purpose of Article 1 is reinforced by the subject matter". That approach to the exception applies equally to the issue of consent, as defined in the United Kingdom document, the MIB agreement, with its reference to use. Lord Nicholls stated that the exception in Article 1(4) "is aimed at persons consciously colluding in the use of an uninsured vehicle". However, Lord Nicholls stated:
  87. "Proportionality requires that a high degree of personal fault must exist before it would be right for an injured passenger to be deprived of compensation".
  88. Upon the wording of the MIB agreement, that applies to the use at the time as it does to knowledge. The judge not having applied the correct test, the case must either be remitted or the Court must make its own judgment on the evidence.
  89. I accept that a good deal of the background to this accident is unhelpful to Miss Pickett. It was her car, she know it was uninsured and colluded in its being driven on the day. She entered it voluntarily knowing that Roberts had done handbrake turns on previous occasions.
  90. The question is, however, whether Miss Pickett was consenting at the time of the relevant use. The use at the time of the accident must be construed specifically in relation to the time and circumstance of the accident, as Chadwick LJ accepts. Giving the word "use" the required narrow construction, it should be taken as a use for handbrake turns on gravelly ground and not the more general use at the start; a journey from Fochriw to Merthyr and back.
  91. On the evidence, in my judgment, Miss Pickett made sufficiently clear her objections to the specific use; her wish to have no part in the handbrake turns and to get out of the car so that she cannot be said to have been consenting as contemplated in Clause 6.1(e). The driver had embarked upon a much higher-risk use than that to which she had consented. Whether or not she is a religious person, the exhortation: "For God's sake stop the car" is a plain indication of her lack of consent, whether her concern was for her safety or that of the dog, or of both. Plainly, because she unclipped her seat belt, she was confident that her lack of consent had been acknowledged and that the driver was going to stop. Equally plainly, she acted as she did so that she could get out of the car.
  92. By her conduct, Miss Pickett was not merely objecting to a bad piece of driving, such as a dangerous overtake, but had withdrawn her consent to the use to which the vehicle was being put. While not as extreme a case, it is in the same category as that of a passenger who believes she is to be driven to a destination but finds herself instead being driven on a race track or a skid-pan. It appears to me, moreover, that, applying the "unequivocal request" test stated by Chadwick LJ, Miss Pickett succeeds on the present facts.
  93. I would allow the appeal and find the MIB liable under the agreement. Failing that, I would remit to allow further consideration of the evidence, applying the correct test and would not find against Miss Pickett on what appears to me, with respect, to be unacceptable inferences from her evidence.
  94. Chadwick LJ's conclusion that Miss Pickett's claim must fail is based on her failure to repudiate unequivocally the common venture, which is defined as "going for drive in order to have some fun", fun apparently including handbrake turns. The Court has not been referred to evidence as to what she meant by "fun". Placed as she was, a drive, a drink at a public house, shopping in Merthyr and a walk on the mountain with the dog is likely to have been the fun anticipated without contemplating handbrake turns, to which she immediately objected, as she had on a previous occasion. Moreover, whatever her initial intention, she made plain before the accident that she did not regard handbrake turns as fun.
  95. In my judgment the concept of common venture as defined by Chadwick LJ and applied to the facts of this case has insufficient regard to the need to identify the use at the time and, in any event, requires an inference not justified by the evidence and indeed contrary to Miss Pickett's conduct as accepted in evidence.
  96. May LJ's conclusion, at paragraphs 51 and 52, is also based on an inference. It arises from a claimed distinction between Miss Pickett's request in strong terms to stop the car and a demand to be let out of the car so as to disassociate herself from Roberts' use. I can think of no reason for her conduct other than a firm desire to get out of the car when it stopped. The demand to be let out is implicit in the demand to stop, confirmed, if necessary, by the unclipping of the seat belt.
  97. The distinction is, in my respectful view, too subtle. As to whether, and on what terms, she might have got back in, would depend on the evidence and was not explored before the judge, nor need it have been, on the test the judge applied.
  98. Inferences adverse to the claimant have been drawn from the evidence which, applying Lord Nicholls' test, should not in my view have been drawn and at least a remission is required. I do not find the analogy with false imprisonment helpful.


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