In the case of Whyatt v MIB [2017] the High Court confirmed that a passenger can claim compensation subject to certain provisions being satisfied.

Background
Three passengers aged 15, 16 and 23 brought claims against the uninsured driver of the car in which they were travelling following an accident caused by him on 15 April 2013. The driver was convicted of a road traffic offence and disqualified from driving. The Motor Insurers’ Bureau (MIB) would normally be liable to meet claims under the terms of the MIB uninsured drivers agreement, but in this case the MIB defended the claim relying on an exception under the MIB Agreement that they were not obliged to compensate a person where that person knew or ought to have known that the vehicle was being used without relevant insurance. They contended that the passengers knew that the driver was uninsured.

The passengers were all friends with the driver and had all been socialising before the accident. The MIB argued that the passengers must have been aware that the driver had only recently obtained the motor vehicle that they were travelling in and that he had previous driving disqualifications for driving offences. Alternatively, the MIB argued that the passengers deliberately turned a blind eye as to whether the driver was insured. The driver had owned so many cars over a short period at a time when insurance would have been expensive and he had no obvious means of paying for the vehicles and the insurance.

The three passengers denied that they were aware of any past driving offences of the driver and that it did not occur to them that he might not have any insurance. They just thought he was insured.

The MIB relied on the presumption that the passengers had information from which they could draw the conclusion that the driver might well not be insured but they deliberately refrained from asking the question.

At a County Court hearing on liability the judge concluded that it was probable that all three passengers knew of previous driving convictions and that even though the driver did not have a job he had had a number of cars without any apparent means of obtaining insurance. The judge said that they all knew more than enough to put them in the category of persons who “ought to have known” that there was no insurance and each of their claims were therefore dismissed.

The three passengers appealed to the High Court.

The High Court Decision
The law states that the phrase “knew or ought to have known” is to be given a narrow interpretation. A mere failure to make enquiries as to insurance, however negligent in the circumstances, is not enough. A passenger had to have actual knowledge of the lack of insurance or information from which he realised that the driver might not be insured but he deliberately refrained from asking the question, preferring not to know.

The High Court considered the evidence that had been produced to the County Court at the liability hearing. There had not been any evidence presented to the Court that the driver had been to prison for driving offences and a simple failing by the passengers to make enquiries as to the lack of insurance was not enough for the MIB’s defence to succeed. The issue had not been sufficiently explored at the County Court hearing and further evidence and consideration was required. The High Court decided that the dismissal of the claims should be set aside and that the case should be sent back to the County Court for a redetermination and reconsideration of the preliminary issue as to whether each passenger ought to have known that the vehicle was being used without insurance being in force.