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Insured or not insured? That is the question!

Your vehicle is hit by a third-party vehicle, which does not stop. By chance you have CCTV which identifies the registration of the offending vehicle. The police cannot identify the driver, it could be any one of several people and no one is owning up. The registered keeper is found, but they could not have been the driver. The vehicle was however covered under a valid policy of insurance.

The difficulty where the driver cannot be identified, and the journey is a private journey, is that it is not clear who can be sued for the negligent driving leading to the damage that you have suffered.

You wish to recover the cost of repairs to your vehicle. Traditionally you could claim off the MIB Untraced Drivers Agreement; an agreement meaning in circumstances like this (untraced driver) you can claim off the MIB scheme for your damages. This, in the UK, is the normal way an untraced driver claim is recovered.

It now appears you have another option; in the recent case of Cameron v Hussain [2017]. The Court of Appeal decided, as the vehicle had a policy of insurance related to it, which complied with the Road Traffic Act 1988 S151 obligation to carry insurance against 3rd Party risk, implementing the EC directive 2009/103 which requires the U.K. to impose such an obligation on its vehicle users (i.e. they cannot avoid their insured liability for third party loss), then you can claim against the insurance company providing that cover, in spite of the fact that the actual driver cannot be identified. The EU directive sets out the requirements of a mandatory third party motor insurance policy and with other EU regulatory law significantly limits the circumstances in which an insurer can refuse to pay out.

In the Cameron v Hussain case the judgement allowed the claimant to sue: ‘The person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZIZ on 26 May 2013’. The person unknown could, obviously, not contend the allegations of their negligence so once the court allowed the amendment then the claimant would normally obtain judgement and damages.  That judgement (providing the required notice had been given to the insurer under s 151 RTA 1988) could then be enforced against the insurance company direct.

In the U.K. it is often the individual who takes out a policy of insurance, not for the vehicle in general, but for the individual when he or she is driving the vehicle and perhaps other named drivers. This is not necessarily the same across Europe where often the vehicle is insured no matter who is driving it. This European approach is more similar to the way that the European regulatory obligation is structured.

The Court of Appeal essentially are allowing, in these specific circumstances, a claimant to sue an unknown person simply to enable the enforcement of that judgement against the road traffic insurer in line with that insurer’s obligations under the EU directive.

Of interesting here is, what the position would be if the vehicle was stolen? In such circumstances, it would appear that the insurer could, on the face of it, be liable regardless of the fact the journey was never authorised by whoever insured the vehicle. They or their insurer could of course claim off the thief, assuming the thief was found and could afford to pay which is doubtful. This was not decided in this judgement but is a potential application of the outcome.

In the Cameron v Hussain case above there appears to be no suggestion that the use of the vehicle was outside the control of the insured, just that the driver was not able to be identified, and in those circumstances the court has allowed a mechanism to require the insurance company to pay the judgement as they should do under the EU regulations.

The ability to plead a case against an unknown person is a significant shift, albeit in a highly restricted area like s 151 RTA, and it is not known whether there will be an appeal to the Supreme Court.

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