Motor: Insurer Fails To Establish Injured Claimant Was Carried In His Own 'Stolen' Vehicle

• Published date: 04 May 2020
• Author: Mr Mark Hemsted
• Subject Matter: Insurance, Litigation, Mediation & Arbitration, Transport, Rail, Road & Cycling, Insurance Laws and Products, Personal Injury
• Law Firm: Clyde & Co

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:

1. Did not know and had no reason to believe that the car had been taken until after commencement of the journey;

2. 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...