Miller v Hales, QBE International Insurance and MIB - Policemen, employees, and getting into a car
Miller v Hales, QBE International Insurance and MIB - Policemen, employees, and getting into a car
Miller v Hales, QBE International Insurance and MIB [2006] EWHC 1529 (QB)The basic principle behind the compulsory insurance provisions of the Road Traffic Act 1988 is simple enough: if you drive a vehicle, you must have insurance to cover liabilities to third parties in case you have an accident. Putting the basic principle into legislative language and dealing with exceptions to the principle (and, as we will see, with exceptions to the exceptions to the principle) means that the task of seeking to understand the legislation is not for the faint-hearted. Miller v Hales addresses two knotty corners of the Act that, it seems, had not been the subject of judicial determination before. The costs argument that follows is instructive too.
The facts
M, a police constable with the Kent Constabulary, pursued and cornered H, a motor cyclist who had failed to stop. M put a handcuff on H, but H broke free and got into M’s police car, locking the doors. M tried to get back into the car to stop H escaping, but H reversed over him, causing M serious injuries. H was later convicted of attempted murder. M sued H for his injuries and joined the second defendant (QBE), motor insurers of the Kent Constabulary. Were QBE liable under s.151 of the 1988 Act to pay any damages awarded against H?
Whilst vehicles owned by a police authority or being driven for police purposes by or under the direction of “a constable or employee of a police authority” (s.144(2)(b) – note the distinction drawn by the Act between the two) are not required to have motor insurance, Kent Constabulary chose not to be self-insured but to take out a policy with QBE. It was a term of QBE’s policy that it was provided solely to meet statutory requirements.
The issues for the court
(1) s.145(4)(a) provides that a policy is not required to cover liability for death or injury to a person “arising out of and in the course of his employment” by the insured. Was M to be treated as “acting in the course of his employment” by Kent Constabulary? If M was not to be treated as acting in the course of employment, then the 1988 Act would require cover against this liability and so QBE would be liable to M. If M was to be treated as acting in the course of employment, then the 1988 Act would not require cover against this liability and so QBE would not be liable to M (subject to the second point).
(2) s.145(4A) provides that sub-section (4)(a) does not apply to a person carried in or upon a vehicle, or entering / alighting from a vehicle, unless compulsory EL insurance is in fact provided for that liability. (The aim being to make sure that victims do not fall into a gap between compulsory RTA insurance and compulsory EL insurance). Kent Constabulary was exempt from having to have EL insurance. Given this, could M bring himself within subsection (4A)?
The first issue
The starting point was that a constable is not an employee and has no contract of employment. Nevertheless, in various common-law contexts, the courts have said that it would be artificial to draw a distinction between constables and other employees, and the chief constable has been referred to as a “quasi-employer” of a constable. Here, it would (said QBE) anomalous to exclude “quasi-employees” from this non-requirement of liability, otherwise police officers would be placed in a more favourable position than other employees without good reason.
The judge referred to various statutes where the position of a constable has required special provision (e.g. the statutory system of vicarious liability found in the Police Act 1996, and specific provisions about constables in employment legislation). He said that the draftsman of the 1988 Act had born in mind that a constable was not an employee in s.144(2)(b), as noted above. The draftsman could have made a provision for constables in s.145(4)(a) but did not. It was not for the court to construe employment as covering quasi-employment, effectively putting in a provision that the draftsman could have inserted but had not. Therefore, M was not to be treated as acting in the course of employment, and the liability to him as a constable was required to be covered by the 1988 Act. Therefore, QBE were liable to pay any damages awarded against H.
The point is unlikely to be one that arises often, but we have (it is suggested) the correct answer to it now. When Parliament remembers the distinction between employees and constables in s.144 of the Act, it would be disingenuous to interpret s.145 of the Act on the basis that there was no such distinction or that Parliament had meant to treat the two categories in the same way.
The second issue
Given the judge’s decision on the first issue, this did not arise but he made his findings in any event. He did not consider that in any ordinary sense was M entering or attempting to enter the vehicle. Whilst he wanted to get the doors open, he did not want to get inside. Alternatively, M did not have the intention of entering to be a passenger, which the judge ruled was the requisite intention to fall within the subsection in the light of its legislative history and the European legislation that the subsection was implementing (which specifically referred to “passengers”). The submission that M was being “carried” when H reversed over him and dragged him was rejected. This was not the kind of being carried to which the provision was directed (being carried in the normal way as a passenger).
The second issue may arise often than the first, but it will need unusual facts. Again, the decision seems correct. When the aim of the provision is to deal with passengers, it is an excessive strain of language to say that someone being dragged along involuntarily, or someone trying to get in to eject a thief, should be treated as in an analogous position.
Costs
The point on which M won was one that had only been raised very late in the day, first being floated 20 days before trial when trial bundles were being put together and formally raised 1 week before trial. Up until that time, the only issue was between the parties was the point on which M lost at trial. M argued that he was the winner and should have his costs; in any event, QBE would still have disputed the winning point even if it had been raised earlier, as in fact they did. QBE said that it was impossible to say what would have happened if it had been raised earlier and that they should have all their costs up until trial as they won on the only point being run up until then.
The judge said that both sides had overlooked the point, but it was a point for M to raise. Up until 1 week before trial, the only issue (save for one point earlier on which QBE had abandoned and for which they agreed to pay costs) was the point on which QBE won. M would therefore pay all of QBE’s other costs until 1 week before trial, and thereafter QBE would pay half of M’s costs (to reflect the fact that both issues were argued at trial and M only won on one of them). If briefs were delivered more than one week before trial, then the brief fee was to be apportioned one-third on delivery and two-thirds for work at trial and during the week before trial.
So M won at considerable cost, and we have another example of a costs order reflecting that, beneath the final order of “Judgment for the Claimant”, there were a number of battles with each party having mixed success.