[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bretton v Hancock [2005] EWCA Civ 404 (13 April 2005) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2005/404.html Cite as: [2005] EWCA Civ 404

[New search] [Printable RTF version] [Help]

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The QUEEN'S BENCH DIVISION,
NOTTINGHAM DISTRICT REGISTRY
MR JUSTICE BEATSON

		Royal Courts of Justice Strand, London, WC2A 2LL
		13 April 2005

Lord Justice Rix:

Introduction

1. Helen Bretton, the claimant in these proceedings, was injured while travelling as a passenger in a Rover car driven by her fiancé, Mark Bryant-Powell, when it was involved in a fatal car collision with another vehicle, a Peugeot van, driven by the defendant, John Hancock. Mr Bryant-Powell was killed in the accident, as was another passenger in the Rover, Michelle McKinnon. Mr Hancock, and his wife who was a passenger in the Peugeot, were injured, but have brought no claim or counter claim in these proceedings in respect of their injuries. It is Miss Bretton who seeks damages for her injuries from Mr Hancock. Mr Hancock was insured, but Mr Bryant-Powell was not.
2. At trial the judge, Mr Justice Beatson, found that both Mr Hancock and Mr Bryant-Powell were responsible for Miss Bretton's injuries, although the main blame attached to Mr Hancock, in the ratio of 75% to 25%.
3. Mr Hancock was insured to drive the Peugeot, but Mr Bryant-Powell was not insured to drive the Rover. Miss Bretton had insured the Rover, but only for her own driving. The Rover car had been bought by Mr Bryant-Powell with his own money, but in Miss Bretton's name. In her proposal form, Miss Bretton said that she was the Rover's owner. The judge found that she had an interest in the Rover, even if he could not say precisely what it was. He also found that she was a "user" of the Rover at the time of the accident, in that she not only had an interest in it, but also sufficient control over its use on the relevant occasion. Both those findings were disputed at trial and remain so on this appeal, but it was common ground before the judge that on that basis she was in breach of her duty under section 143(1)(a) of the Road Traffic Act 1988 ("RTA") not to use a motor vehicle on the road without the compulsory insurance in respect of third party risks required by the statute. As Mr Bryant-Powell was impecunious, the judge found in favour of Mr Hancock's counter-claim against Miss Bretton for damages for breach of her statutory duty, in that as a result of her breach Mr Hancock was unable to recover from Mr Bryant-Powell's estate in respect of the latter's liability to contribute 25% of the damages due to Miss Bretton. Her liability on that counterclaim was argued on behalf of Mr Hancock and accepted by the judge as an application of what has come to be known as a Monk v. Warbey claim: see Monk v. Warbey [1935] 1 KB 75.
4. On this appeal, in which Miss Bretton is the appellant and Mr Hancock is the respondent, the main issue has been whether the judge was right to apply the Monk v. Warbey rationale in this way. However, in the course of the hearing the court extended Miss Bretton's limited permission to appeal so as to cover two additional issues. One was whether Mr Bryant-Powell's driving had contributed in any way to the accident and to Miss Bretton's injuries; and the other was whether the judge had been right to find that Miss Bretton was a user of the Rover. Without those findings of causation and use, the Monk v. Warbey point would never have been reached. It may be doubted, however, whether permission would have been so extended to what are essentially issues of fact, if the parties had not already been before the court on an appeal in respect of the Monk v. Warbey claim.

The judge's order

5. The judge gave effect to his conclusions by the means of the following opening paragraphs of his order:

"1. That judgment is entered for the Claimant against the Defendant for damages for an amount to be assessed by the court, limited to 75% of the sum so assessed.

2. That judgment is entered for the Defendant against the Claimant upon the Defendant's counterclaim in this claim, limited to 25% of the sum claimed by the Claimant in this claim."

6. It is not clear how the order came to be drawn up in this way. The effect of it appears to give Miss Bretton 75% of her claim, and in addition to give to Mr Hancock 25% of his counterclaim. The judge found that although Mr Bryant-Powell's negligence was 25% responsible for the accident and its consequences, so that that percentage identified the level of Miss Bretton's liability on the counterclaim, she was not contributorily negligent herself. It is accepted by Mr Dermod O'Brien QC on behalf of Mr Hancock that he had never pleaded a case of contributory negligence by reference to Miss Bretton's breach of statutory duty, as distinct from a counterclaim to be valued by reference to Mr Hancock's contributory negligence and/or Miss Bretton's participation in Mr Bryant-Powell's bad driving. In the latter respect the judge found against any contributory negligence on the part of Miss Bretton herself. Moreover, even if a plea of contributory negligence had been made by reference to her breach of statutory duty, Mr O'Brien would have been in difficulties because of the judge's findings that he accepted her evidence that she had been told by Mr Bryant-Powell that he had insured himself to drive the Rover (against third party risks) and neither knew nor suspected that he had failed to do so.
7. In these circumstances, Mr O'Brien accepts that the form of order is in error, and that even if he otherwise successfully resists Miss Bretton's appeal in full his remedy in respect of the Monk v. Warbey counterclaim is to be found in the order's paragraph 2, rather than in the present terms of paragraph 1. If Ms Bretton needs a further extension of permission to appeal to cover this aspect of the case, she is entitled to it.

The facts of the accident

8. The accident occurred on 30 June 2000 just after 10pm at the junction of Valley Road and Ventnor Rise in Nottingham. Valley Road is a dual carriageway with two lanes running in either direction. It runs through a residential area and is subject to a 40 mph speed restriction. Its central reservation is some 3 metres wide. There are cut-throughs in the central reservation to allow traffic to turn right on leaving and entering Valley Road into and out of its side roads. One such side road is Ventnor Drive.
9. Mr Hancock in his Peugeot was driving westwards along Valley Road and made a right turn through the central reservation, intending to enter Ventnor Drive. He had consumed excess alcohol. He came directly into the path of the Rover being driven by Mr Bryant-Powell along Valley Road in the opposite eastwards direction. Mr Bryant-Powell was killed in the collision. His backseat passenger, his aunt Mrs McKinnon, died subsequently. Miss Bretton, who was sitting in the front passenger seat, was injured. Mr Hancock pleaded guilty to two counts of causing death by careless driving under the influence of drink and was sentenced to two years in prison. He said that he was driving at 10-20 mph and had misjudged the speed of the advancing traffic which he had seen some 70 yards away.
10. Mr Bryant-Powell was travelling at 60 mph at the point of impact, despite the 40 mph speed restriction. He was racing a Vauxhall driven by Mr Stuart McKinnon, Mrs McKinnon's husband. The Rover was in the inside lane, and the Vauxhall in the outside lane. The Rover had had to slow down because of another car in front of it which was turning left, but even so it had accelerated so fast that it had overtaken the Vauxhall on the inside of it and was in the lead when the accident occurred. The Vauxhall escaped impact.
11. The judge did not think it necessary to go into further details of the accident, but, on behalf of Miss Bretton, Mr William Stevenson QC observes that, at the respective speeds of the two cars which collided and making allowance for a reaction time of 1 1/2 seconds, the Rover could not have avoided a collision. He therefore submits that the judge was wrong to have found that Mr Bryant-Powell's driving was in any way causative of the accident.

Causation

12. It is convenient to take this ground of appeal at this point. Mr Stevenson supports his submission by reference to the judge's findings at trial on the opposite submission there made on behalf of Mr Hancock that his driving was in no way causative because the fault lay entirely with Mr Bryant-Powell's excessive speed. The judge said:

"Although, had Mr Bryant-Powell been driving at 40 miles an hour, he would have been further away from the junction of Valley Road and Ventnor Rise as the Defendant's car turned, I am not satisfied that, allowing for thinking and reaction time, he would have avoided a violent frontal impact with the Peugeot van driven by the Defendant. Accordingly, I reject Mr Goldstaub's [Mr Hancock's leading counsel at trial, now HHJ Goldstaub QC] submission and conclude that the Defendant's negligence was a cause of the accident and the Claimant's injuries.

Third, was Mr Bryant-Powell's driving negligent and did it contribute to the Claimant's injuries? While Mr Bryant-Powell's driving was not [wholly] causative, it is clear that his excessive speed, described as motorway speed, and the manner of his driving closely alongside Mr McKinnon's car was grossly negligent. Mr Bryant-Powell's negligence thus contributed to the accident and to the Claimant's injuries.

13. I have put the word "wholly" in the second paragraph of that citation in square brackets because, although it does not appear in the judge's judgment as transcribed on 15 March 2004, nevertheless when he received submissions on 26 May 2004 concerning Miss Bretton's application for permission to appeal he remarked that it would have been more felicitous to have included that word "and that in fact is what I meant".
14. Even without that observation on the part of the judge, it seems to me to be perfectly obvious that he was drawing a distinction between sole and concurrent or contributing causes. In these circumstances the instant ground of appeal is in my judgment without any ultimate merit. The judge rejected the submission that the sole cause of the accident was Mr Bryant-Powell's speed: but he plainly was not saying that Mr Hancock's negligence was the sole cause either. Moreover, it would be wholly counter-intuitive to come to that conclusion. A 40 mph speed restriction does not mean that one can safely drive at the maximum speed limit in all circumstances, especially when there are cars approaching a right-hand turn cut-through. The impact speed of 60 mph allows for even higher speeds and acceleration forces prior to the moments leading up to impact, at which time the Rover had begun to brake: a witness spoke of "motorway speed", and Mr Bryant-Powell had been accelerating strongly at that earlier time. His speed must have played a material part in the causation of the accident and in the severity of its consequences.

"User"

15. Two interlinked issues of fact arose under this heading at trial. Did Miss Bretton have an ownership interest in the Rover? And if so, was she using the car at the time of the accident? The judge answered both these questions against Miss Bretton. They both depended on the evidence at trial, which turned in large part on the judge's assessment of Miss Bretton's credibility as a witness. This court would be reluctant to depart from the judge's findings in such circumstances: but in any event our task has been simplified in that Mr Stevenson has conceded that he cannot succeed on this ground if the judge was right to find an ownership interest, and Mr O'Brien has conceded that he cannot resist this appeal if the judge was wrong to find an ownership interest. Therefore I can concentrate exclusively on the first of the two questions above.
16. Certain facts in this respect are dependent not so much on the judge's findings as on the documents, and I shall begin with explaining what they show.
17. On 16 June 2000 Mr Bryant-Powell bought the Rover from its previous owner for a cash price of £4,950. He paid with his own money, as his bank statement shows. However, the name for the buyer entered on the "Used Car Invoice" which records the sale is that of Miss Bretton. Her evidence was that she was not present, but the judge did not make a positive finding about this other than to say that there was no evidence that she was. Mr Bryant-Powell appears to have signed the invoice ("M. Powell") under the words "I declare that I am the buyer of the car described above".
18. On 22 June 2000 Miss Bretton made a proposal for the comprehensive insurance of the Rover on a "Highway Motor Policies" form ("Highway") issued by her insurance brokers Hyperformance. The proposal form was filled up by the brokers during a telephone conversation with Miss Bretton. In answer to the question: "Are you the registered owner/keeper of the car?" Miss Bretton answered "Yes". In answer to the question: "How many vehicle(s) are owned or used by you and members of your household including Company Cars?" Miss Bretton replied "None", which in context appears to mean "None, other than the car for which proposal is being made." In fact, Miss Bretton owned her own Nissan Micra car. Against the heading "Use", Miss Bretton replied: "Social domestic and pleasure, including use by the insured and spouse…". Against "Driving Restrictions", Miss Bretton replied "Insured only", and the space for insured drivers below ("yourself and any other driver who may drive") was filled in with only her own details. The form was sent to her, presumably on the same day or shortly thereafter, for her to sign and return, together with a 30 day cover note stating that only she, as the proposer, was entitled to drive.
19. The accident intervened on 30 June 2000 before she had dealt with the proposal form. She only did so on 15 July 2000, when she dated and returned it. Responding to the question "Are you the registered owner/keeper of the car?" she crossed out the word "owner", wrote in "not known", but left the previously entered answer "Yes". In response to the question "How many vehicle(s) are owned or used by you and members of your household including Company Cars?", she crossed out the previous answer "None" and wrote "Two", presumably thinking both of the Rover and her Nissan. She remained entered as the sole driver. She signed the form after a declaration inter alia that "the Car described is my/our property".
20. In her witness statement Miss Bretton did not explain these answers other than to say that she proposed only herself as an insured driver because her fiancé had told her that he had third party cover for himself. In her evidence at trial, as recorded in the judge's judgment, she said that she had changed the answer regarding owner/keeper because she had been told that the log book remained in the name of the previous owner.
21. The judge concluded as follows:

"Of more importance is the Claimant's evidence as to the ownership of the car and the reasons for which she insured the car. I do not find this credible. While there is no evidence that she was present when the car was bought and, indeed, some evidence that she was at work at the time, I do not accept her account of the communications between Mr Bryant-Powell and herself and her account of the way in which the insurance was arranged. In particular I do not accept that she had not discussed insurance and the details of the car with Mr Bryant-Powell before taking out the insurance, especially since in her witness statement she states that he had suggested she insure the car. The Claimant's evidence as to her knowledge of how much he had paid for the car was contradictory. Her denial that she had given the information on the proposal form, in particular the household was a two car household, and her explanation for stating that she did not know whether she was the registered owner, are not credible. With regard to the latter, in cross-examination she said that this was because she had been told that the previously registered name in the logbook had not been transferred at the DVLA. But her primary evidence was that she was not the owner and was not to be the owner. On this account whether the registration had been transferred was irrelevant. Whether the registration had been transferred or not she would not be the registered owner. Her explanation for the lack of knowledge is, however, consistent with an expectation that the registration was to be transferred to her name. So too is her decision to take out insurance on the Rover. The reason she gave for doing that was equally applicable to Mr Bryant-Powell's previous car but the Claimant had not taken out insurance for that car.

These factors lead me to the conclude that although money from Mr Bryant-Powell's account was used to pay for the Rover, and even if she was not present when it was bought, the Claimant and Mr Bryant-Powell had agreed that she was to have some interest in it."

22. Mr Stevenson submitted that the judge's conclusion was wrong because he missed two points: first, that Miss Bretton already had her own car, the Nissan; and secondly, that he was mistaken in saying that in her evidence at trial she said she had not discussed insurance with her fiancé. However, as to the first of these points, the judge had in mind that she owned her own car and had separate insurance for that (at page 6C of the transcript), hence the two car household (at 7B and 16B). As for the second point, the judge may be mistaken or he may be distinguishing between a detailed discussion and a mere conversation that Mr Bryant-Powell had third party cover for himself. In either event, I do not consider that this goes in any degree at all to undermine the judge's conclusion as a whole. Mr Stevenson also submitted that the finding that Miss Bretton had some, unquantified, interest in the car was unsatisfactory and demonstrated the weakness of his conclusion. I disagree: the documentary evidence, some of it under her own signature, was consistent only with the car being intended to be her property, or at least her joint property. Without her having an interest in the car, she would not have been able to insure it comprehensively. Seeing that she and her fiancé were living together in her house, and that she paid all the household outgoings, there is nothing surprising in the conclusion that the two of them were at least to share in the ownership of the Rover.
23. In my judgment, therefore, the judge's finding as to her interest cannot be said to be wrong. It follows that his conclusion as to user on the occasion in question is not further challenged. It also follows that the factual basis admittedly necessary (but the sufficiency of which remains disputed) for Mr Hancock's Monk v. Warbey counterclaim has been established.

The Monk v. Warbey counterclaim

24. Mr Hancock pleaded his counterclaim for damages for breach of statutory duty as follows:

"[Mr Hancock is] herein entitled to recover indemnity and/or contribution from [Mr Bryant-Powell]. To the extent that [Mr Bryant-Powell], by reason of the lack of an insurance policy and lack of means is unable to discharge his liability to [Mr Hancock], [Mr Hancock] thereby suffer[s] a loss. Such loss is attributable to [Miss Bretton's] breach of duty and/or negligence in using the vehicle without ensuring that there was adequate and proper insurance…"

25. It will be observed that the loss pleaded is entirely economic, namely the impossibility of recovering an indemnity or contribution from Mr Bryant-Powell or any insurer. Although Mr Hancock was injured in the accident, he made no claim in these proceedings in respect of his injuries.
26. Mr Bryant-Powell's impecuniosity was not perhaps formally proved at trial, but it was inferred and there is no appeal from that finding. It was however submitted to Mr Justice Beatson that, even though Mr Bryant-Powell was himself uninsured, and even though Miss Bretton's insurance did not extend by contract to cover his driving, nevertheless the Monk v. Warbey duty did not extend to an insured tortfeasor. It seems that reliance was made on Mr Hancock having his own insurance (see para 42 of Mr Stevenson's skeleton argument below). However, as the judge pointed out (at 32D of the transcript), the question in this case is whether the uninsured Mr Bryant-Powell was able to satisfy any part of Mr Hancock's claim for contribution. On this appeal Mr Stevenson has therefore addressed an alternative point, namely that the effect of section 151 of the RTA (see below) and/or the effect of the Motor Insurers Bureau ("MIB") Agreement was to ensure that Mr Bryant-Powell's share of responsibility was still met by Miss Bretton's insurers, Highway. In any event, the judge appears to have proceeded on the basis that such considerations were irrelevant.
27. On this appeal, however, Mr Stevenson has also taken a wholly different point on behalf of Miss Bretton, not so far as I can detect taken, or at any rate explicitly taken, below, and that is that, whether or not Mr Bryant-Powell's liability to Mr Hancock can be met other than from his own impecunious pocket, the Monk v. Warbey claim only protects a claimant who has himself suffered personal injury (or some other third party risk for which the RTA requires compulsory insurance, such as property damage or of course death) and has never before been extended to pure economic loss as in the present case. Mr O'Brien concedes that this case marks an extension in the reach of the Monk v. Warbey jurisprudence but submits that such an extension falls within the rationale of the principle.
28. To understand the parties' submissions it is necessary to set out certain of the RTA's provisions and then to consider the nature of the Monk v. Warbey claim.

The Road Traffic Act 1988

29. Section 143 provides:

"(1) Subject to the provisions of this Part of this Act –

(a) a person must not use a motor vehicle on a road or other public place unless there is in force in relation to the use of the vehicle by that person such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part of this Act, and

(b) a person must not cause or permit any other person to use a motor vehicle on a road or other public place unless there is in force in relation to the use of the vehicle by that other person such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part of this Act."

30. Section 145(3)(a) sets out the statutory requirements in respect of policies of insurance:

"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 of or bodily injury to any person or damage to property caused by, or arising out of, the use of the vehicle on a road or other public place in Great Britain…"

31. It will be observed that whereas section 143(1)(a) is concerned with personal use of a motor vehicle, subsection (1)(b) is concerned with causing or permitting another's use of a motor vehicle. In the present case, Mr Hancock's counterclaim charges Miss Bretton only with her own use of the Rover, not with causing or permitting Mr Bryant-Powell's use.
32. The jurisprudence of the RTA (and its earlier predecessors) has demonstrated that the user principle is itself very broad and can impose liability on a passenger, but only if there is some element of controlling, managing or operating the vehicle at the relevant time: see Brown v. Roberts [1965] 1 QB 1, O'Mahoney v. Joliffe [1999] PIQR 149.
33. It will also be observed that section 145(3)(a) sets out the limits of the compulsory insurance required by statute, namely liability in respect of death, personal injury and damage to property ("third party loss").
34. Section 151 is concerned with the duty of insurers to satisfy judgments against their insureds. That duty is triggered in the first place by the issue of a certificate of insurance (section 151(1)) and in the second place by a judgment in respect of the insured's third party liability (section 151(2) and (5)). For these purposes, and with certain exceptions, the section 151 duty is imposed as if the policy covered not only the persons actually insured but "all persons" (section 151(2)(b)). Nor does it matter that the insurer might be entitled to or have already avoided or cancelled the policy. However, where the insurer is forced by these statutory provisions to satisfy a liability which he was not contractually bound to meet, section 151(8) enables him to recover the amount from the insured provided the latter "caused or permitted the use of the vehicle which gave rise to the liability". The latter appears to be a reference to section 143(1)(b) as distinct from subsection (1)(a).

The Monk v. Warbey jurisprudence

35. In Monk v. Warbey [1935] 1 KB 75 the plaintiff had been injured in a collision with a car belonging to the defendant who had permitted it to be used by an uninsured driver, in breach of the defendant's statutory duty under what was then section 35(1) of the Road Traffic Act 1930. It was held that breach of the statutory duty carried with it a right to recover damages in tort from the defendant where the uninsured driver was without means. Greer LJ pointed out (at 80) that one of the purposes of that Act was to make provision for third parties who had been injured by the negligent driving of uninsured persons to whom the insured owner had lent his vehicle. He said (at 82/83):

"What therefore has to be considered here is, taking the whole of this Act, is there anything in it to show that an injured person is outside its scope? I am satisfied that there is not; and a person who suffers injury by reason of a breach of s. 35 can maintain an action for its breach...That involves the question whether the quantification of the damage is an essential part of the cause of action. I think it is not. All that has to be shown is that the person primarily liable is in such a financial position that nothing is obtainable from him, and that nothing can be effected by bankruptcy proceedings against him, as, being an uninsured person, there can be no recourse against an insurance company."

36. In Corfield v. Groves [1950] 1 All ER 488 the plaintiff's husband had been killed by the negligent driving of the uninsured first defendant in a car which the second defendant owner had permitted the driver to use. It was argued that the Monk v. Warbey claim against the owner failed because, although the driver was impecunious, the plaintiff would recover the damages awarded against him from the MIB. Hilberry J held that the Monk v. Warbey cause of action against the owner was complete at the time of the accident, even if the damage had not yet been quantified, and that the damages due to the plaintiff could be awarded against both defendants, even though it could only be recovered once.
37. In Martin v. Dean [1971] 2 QB 208 the injured plaintiff again sued both uninsured driver and the owner who had lent the vehicle to the driver. Damages were again awarded against both, even though the driver was not entirely impecunious. John Stephenson J rejected the submission that damages for breach of the owner's statutory duty were proved without more: if the driver were a millionaire, there would be no loss. However, on the facts the driver could only afford a small instalment each week, and so the plaintiff had lost the opportunity of prompt payment.
38. Richardson v. Pitt-Stanley [1995] 1 All ER 460 was concerned with a breach of statutory duty in the employment context: it was held that there the statute had not created a civil remedy as well as a criminal liability on the part of the employer, and Monk v. Warbey was distinguished. Stuart-Smith LJ said that a civil remedy would be more readily found where the provision relates to safety and health rather than where they have suffered economic loss, but added (at 467):

"This point clearly cannot be taken too far because Monk v. Warbey itself is a case of protecting the injured claimant against economic loss."

39. In Norman v. Aziz [2000] PIQR 72 the claim was brought against the owner who allowed the car to be borrowed by an uninsured driver more than three years before, but within six years of, the accident. The question was whether the Monk v. Warbey claim was governed by a limitation period of three or six years, and that depended on whether, for the purposes of section 11 of the Limitation Act 1980, the claim was one "where the damages claimed…consist of or include damages in respect of personal injuries"; for if so, the limitation period was three years. This court held that the correct period was three years and so the claim was time barred. The judge below had come to the opposite conclusion on the ground that a Monk v. Warbey defendant does not cause the personal injury but creates a situation in which the injured person cannot obtain damages. The court of appeal disagreed. Otton LJ said:

"The whole purpose of compulsory insurance is the need to provide proper compensation for those who suffer death or personal injury. Thus not only is the Monk v. Warbey action "all about" personal injuries, but so is the Act of Parliament on which it is based" (at 78)…"In a Monk v. Warbey case the breach of duty by the owner towards the person injured arises only when the person is in fact injured, viz in the accident itself" (at 79)…"This [submission] is based on a proposition that a Monk v. Warbey action is not in respect of personal injury loss and damage and that [the owner] is only liable for economic loss. This argument has already been dealt with and rejected" (at 81).

40. Otton LJ also went on to consider, as a separate matter, whether the impecuniosity of the uninsured driver is a condition precedent of the cause of action against the owner. He said (at 80):

"It appears that the English courts have yet to decide authoritatively whether the impecuniosity of the driver is a necessary ingredient of the cause of action against the owner. In the Scottish case of Fleming v. McGillivray, Lord Mackintosh in the Outer House concluded that an action under Monk v. Warbey is not competent against the owner of the car until it is known that the wrongdoer cannot pay and there is no effective policy. It must be established not only that the driver cannot pay but also that the insurers cannot be made to pay. This decision is not binding in this court and this issue might not be so decided in England today. It is not necessary for the purpose of this appeal for this Court to determine it. Greer L.J. in Monk v. Warbey said, at 83:

"All that has to be shown is that the person primarily liable is in such a financial position that nothing is obtainable from him, and that nothing can be effected by bankruptcy proceedings against him, as, being an uninsured person, there can be no recourse against an insurance company."

This observation, in my view, was obiter and did not form part of the ratio decidendi of the Court of Appeal's decision. Even if impecuniosity is a necessary ingredient of a Monk v. Warbey claim, then it suggests that the owner and driver are separate tortfeasors liable in respect of different damage. I venture to suggest that the correct analysis is that the owner and driver are separate tortfeasors liable in respect of the same damage and their rights between themselves are governed by the Civil Liability (Contribution) Act 1978."

41. Schiemann LJ and the President did not opine on this separate issue.

Damages for personal injury, or for economic loss?

42. It will be seen from the cases cited above, and it is common ground, that a Monk v. Warbey claim has hitherto operated only in circumstances where the victim of what I have called the third party loss is the claimant. Whether or not the impecuniosity of the negligent driver is an ingredient in the claim, or only assists to measure the loss, the fact remains that what is compensated is a third party's death, personal injury or loss arising from damage to his property. On this appeal Mr Stevenson focuses for what appears to be the first time on this aspect of the matter. Before the judge the submission was made, it seems, that the statutory duty of which Miss Bretton was in breach was not owed to Mr Hancock qua insured tortfeasor: and it may be that implicit or inchoate within that submission was the concept that Mr Hancock's counterclaim was qua tortfeasor (measuring his loss by reference to his failure to recover a contribution under the Civil Liability (Contribution) Act 1978) rather than as victim (for his third party loss). However, emphasis seems to have been placed on the role of Mr Hancock as being insured, or as tortfeasor, and not as having no claim as a third party victim. The judge rightly said that the Monk v. Warbey duty was owed to the public at large, but the issue on this appeal can now for the first time be clearly seen to be inherent in the judge's observations in this passage (at 30D/E) of his judgment:

"[In Monk v. Warbey] Lords Justices Greer and Maugham refer to and rely on Atkin LJ's statement in Phillips v. Brittania Hygiene Laundry Co [1923] 2 KB 832, 841 that the duty may be of such paramount importance that it is owed by the owner or user to anyone injured or damaged by the negligence of the [uninsured] driver. That includes not only the uninsured driver's primary victim but his joint tortfeasor."

43. Mr Stevenson now submits, in effect, that the final sentence of those observations go too far. There is, he says, an essential difference between the claim of the primary victim and the joint tortfeasor who claims not in respect of his own injuries but only in respect of his tortfeasor's right of indemnity or contribution.
44. Thus extricated, Mr Stevenson's primary point on this appeal is a short one, and, it seems to me, a correct one. The RTA is only concerned with third party loss as there defined. Section 143, which imposes the Monk v. Warbey duty on users of motor vehicles, refers expressly to insurance in respect of "third party risks" in accordance with the statutory requirements. The insurance policy requirements set out in section 145(3) are limited to "any liability…in respect of the death of or bodily injury to any person or damage to property". In Monk v. Warbey itself, emphasis was placed on the duty owed to "an injured person" (for instance at 82). The only such loss in play in the present case is the personal injury suffered by Miss Bretton, but hers is not a third party loss. Miss Bretton owed a duty to insure her use of the Rover and her duty was owed to the public as a whole; but not to herself. This remains the case despite the fact that if an insured owner permits his car to be used by an insured driver and the latter's negligence injures the owner as passenger, the driver can recover contractually under the policy, a conclusion fortified by the consideration that for these purposes the policyholder is to be treated as though he was a third person: Digby v. General Accident Fire and Life Assurance Corporation Ltd [1943] AC 121, a case relied on by Mr O'Brien but which it seems to me throws no light on the present issue, which is whether a person can be said to owe a duty to himself. In Digby, the owner was a third person vis a vis the negligent driver.
45. Mr Hancock, on the other hand, is a third party vis a vis Miss Bretton (whose Monk v. Warbey breach of duty is in issue) as well as vis a vis Mr Bryant-Powell (whose negligent driving has been established). However, even though he was injured in the accident, Mr Hancock's counterclaim is not premised on those injuries but upon a claim for a contribution from Mr Bryant-Powell under the 1978 Act in respect of his own liability to Miss Bretton. That is a claim to be indemnified against a liability and is in respect of a pure economic loss. Although, in a sense, a Monk v. Warbey claim is itself in respect of economic loss (see the observation of Lord Justice Stuart-Smith in Richardson v. Pitt-Stanley), that is not really so. In truth it is in respect of third party loss within the meaning of the statute, as Norman v. Aziz demonstrates. It is simply that, because of the requirements of compulsory insurance, a user (or one who causes or permits the use) of a motor vehicle who fails to insure that use is himself put in the position of being required directly to compensate the third party loss.
46. The distinction between the obligation to compensate a victim's personal injury and a tortfeasor's obligation to contribute to the liability of another tortfeasor in the context of compulsory insurance is illustrated by the Northern Ireland case of Campbell v. McFarland and Omagh Urban District Council [1972] NILR 32. A driver is bound to insure in respect of third party loss such as personal injury, but he is not bound to insure against his liability as a tortfeasor to contribute to the liability of another tortfeasor.
47. The conclusion that a user is not bound to insure against the liability of one tortfeasor to contribute with another tortfeasor in respect of their joint liability to the user is in my judgment supported and illustrated by the following considerations put before the court by Mr Stevenson, even if they are not directly relevant in an analytical way to the solution of the issue in this appeal. Thus, if Miss Bretton had sued either Mr Bryant-Powell or Mr Hancock separately in respect of her injuries, they would each of them have been liable to indemnify her in full. It seems counter-intuitive therefore to suppose that her recovery should be reduced because the former is bound to contribute to the latter's liability. Moreover, it would be undesirable if a wife who could in some sense be said to be the user of the household car could lose 90% of her recovery because her husband, who told her he was insured, was not insured and was found 90% responsible for a collision involving another driver and tortfeasor.
48. These latter considerations would perhaps have less force if the wife would have been without any source of compensation where her injuries would have been entirely due to her uninsured husband's negligent driving. In such circumstances, however, Mr O'Brien himself accepted that the wife in Miss Bretton's position would still have been able to recover under section 151(5) from her own insurers following a judgment against her husband. Mr O'Brien's answer was to point to section 151(8) as providing the insurer with a counter-recovery against the wife. However, that only appears to operate where the wife is more than a user and rather causes or permits the use of the vehicle which gave rise to the liability. As it is, the Monk v. Warbey jurisprudence considered above all concern cases of causing or permitting.
49. I am not unhappy to have come to the conclusion that the Monk v. Warbey claim does not extend to the present case. As is said by Stanton, Skidmore, Harris and Wright in their Statutory Torts, a work consulted by the judge below, at para 10.002:

"The logic behind this result [in Monk v. Warbey] is that the whole scheme of the Act is to make third party insurance compulsory so as to protect accident victims. If the car is being driven by an uninsured driver, as would happen if the owner's own policy does not extend to cover the particular driver, the victim will have no policy to protect him. The victim thus obtains additional protection as a result of the tort remedy making the owner liable personally."

50. The present case is not within that logic. I see no need as a matter of statutory construction, precedent or principle to extend the Monk v. Warbey duty so as to validate Mr Hancock's counterclaim.
51. In the circumstances it is unnecessary to address certain questions which arose in the course of submissions before the court as to the precise way in which the requirements of section 145(3) are to be read into section 143(1).

The cross-appeal

52. It is also unnecessary to determine the issue of discretion which is the subject-matter of Mr Hancock's cross-appeal. This cross-appeal arose because the parallel dependency action which was brought by Mr McKinnon against Mr Hancock in respect of the death of his wife ended in a settlement before trial. In that action, Mr Hancock had brought Part 20 proceedings against Miss Bretton, the equivalent of his counterclaim in Miss Bretton's action against him. The settlement between Mr McKinnon and Mr Hancock, which did not involve Miss Bretton, left those Part 20 proceedings unresolved. They were not referred to again during the trial of Miss Bretton's action. Immediately following judgment in Miss Bretton's action, however, it was submitted on behalf of Mr Hancock that the equivalent Monk v Warbey claim in the McKinnon action should similarly succeed for 25% of the settlement amount. Mr Hancock's pre-trial skeleton argument (entitled in both actions) had made that point, but it had not been adverted to in oral submissions prior to judgment and it was not considered in the judgment.
53. It appears from the terms in which the judge declined to reopen the question following his judgment that it may have been put to him as a matter of the quantum of Mr Hancock's counterclaim against Miss Bretton. The judge said that Miss Bretton "has been deprived of the ability to make submissions about this part of the counterclaim". On the cross-appeal, it was reformulated as an outstanding issue deriving from the Part 20 proceedings in the McKinnon dependency claim. Moreover Mr Stevenson concedes that Miss Bretton was not prejudiced in any way by the absence of explicit reference to the McKinnon Part 20 proceedings at trial. In the circumstances, it may have been appropriate to revisit the judge's decision on this aspect of the case. As it is, however, the question does not arise.

Conclusion

54. In sum, Miss Bretton's appeal succeeds, and Mr Hancock's cross-appeal fails. It may be necessary to hear further submissions as to the precise terms in which the order should be drawn up, but my provisional view is that the effect of it is that judgment should simply be entered for Miss Bretton against Mr Hancock for damages to be assessed.

Lord Justice Maurice Kay:

55. I agree.

Lord Justice Ward:

56. I also agree.