Miller v Hales & Ors [2006] EWHC 1529 (QB)

Case No HQ06X01096[2006] EWHC 1529 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 06 th July 2006
Before
MR JUSTICE JACK
Between
GUY MILLERClaimant[3] THE MOTOR INSURERS BUREAUDefendant
Mr Andrew Ritchie and Miss Perrin Gibbons (instructed by Russell Jones & Walker) for ClaimantMr Michael de Navarro QC (instructed by Berrymans Lace Mawer) for Second DefendantHearing Hearing dates: 21 & 22 June 2006
Judgment

Introduction

[1]On 10 December 2003 Police Constable Guy Miller was on duty at the M25/M20 Swanley interchange as the driver of a Volvo estate police car. His crew member was out of the vehicle. A motorcycle with a pillion passenger drove past another officer ignoring signs to stop. Mr Miller pursued it. After a long pursuit, much of it at very high speeds, the rider turned into a dead end road on an estate, where building works were taking place. He stopped and after a short chase caught the driver and put one hand cuff on him. The man then escaped from him and ran back to the police car which had been left with the keys in it and the engine running. He got into the driver’s seat and the other man got in on the passenger side. They locked the doors. Mr Miller tried to open the doors. He shouted and banged on the windows. He tried the tail gate. While he was at the rear of the car it reversed violently. He fell beneath it and was dragged for some 20 metres before he came free. The wheels passed over him and he sustained very serious injuries. Fortunately he has made a substantial recovery – though it is as yet some way from complete. The Kent Constabulary had a motor vehicle policy with the second defendant, QBE International Insurance Limited, which trades as Ensign Motor Policies at Lloyds. In these proceedings Mr Miller seeks to establish that the insurers are liable pursuant to section 151 of the Road Traffic Act 1988 to pay him whatever the first defendant, the driver of the motor cycle, Ricky Hales, is liable to pay under the judgment that was entered against him at the start of the trial for failing to file an acknowledgment of service.

The issues

[2]Section 143 of the Road Traffic Act 1988 provides that a person may not use a motor vehicle on a road unless there is in force in relation to that use a policy of insurance in respect of third party risks complying with the requirements of the Act. (The section also refers to the provision of a security as an alternative to a policy: I will ignore all references to a security in my review of the relevant provisions). Section 145 sets out the conditions which a policy must satisfy. By section 144(2)(b) section 143 does not apply to vehicles owned by a police authority and driven under the owner’s control or to vehicles “being driven for police purposes by or under the direction of a constable or an employee of a police authority”. However the Kent Constabulary evidently decided that it would not be its own insurer and took out the policy with the insurers. It was a term of the policy that it was provided ‘solely as necessary to meet the requirements of the Road Traffic Acts.’ The driving by Mr Hales which caused Mr Miller’s injuries was not, of course, covered by the policy because he was not permitted to drive the vehicle. Section 151 of the 1988 Act provides for a judgment to be honoured by the insurer as if the policy insured all persons. The outcome is that Mr Miller is entitled against the insurers to the benefit of his judgment against Mr Hales provided that, on the basis that Mr Hales was an insured driver, cover was required to meet the requirements of 1988 Act. That turns upon the application of section 145 to the facts of the case.[3]Section 145(3)(a) provides :
“Subject to subsection (4) below, the policy- 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 in Great Britain ….. .”
Section 145(4)(a) provides :
“(4) The policy shall not, by virtue of subsection (3)(a) above, be required- (a) to cover liability in respect of the death, arising out of and in the course of his employment, of a person in the employment of a person insured by the policy or of bodily injury sustained by such a person arising out of and in the course of his employment …”
Section 145(4A) provides :
“(4A) In the case of a person - (a) carried in or upon a vehicle, or (b) entering or getting on to, or alighting from a vehicle, the provisions of paragraph (a) of subsection (4) above do not apply unless cover in respect of the liability referred to in that paragraph is in fact provided pursuant to a requirement of the Employers’ Liability (Compulsory Insurance) Act 1969.”
[4]Two points arise on the application of section 145. First, does section 145(4)(a) have the effect that no cover was required and therefore was not provided, because Mr Miller is to be treated as acting in the course of employment when he was injured? Second, if he was, can he avoid the effect of that by bringing himself within section 145(4A), it being accepted that cover was not ‘provided pursuant to a requirement of the Employers’ Liability (Compulsory Insurance) Act 1969.’ The first point was only raised recently, and at the start of the trial I allowed an amendment to permit it to be taken, reserving the question of costs.

The employment point

[5]A constable is not an employee and has no contract of employment. Thus in White v Chief Constable of South Yorkshire [1999] 2 A.C. 455 Lord Goff stated in the course of his judgment at page 481 :
“An employee (I will for present purposes include in this category a “quasi-employee” such as a police officer who, although he holds an office and is strictly not an employee is owed the same duty by his employer – here the Chief Constable of the South Yorkshire Police) ……”
Lord Steyn stated at page 495 “It is true there is no contract between police officers and a chief constable. But it would be artificial to rest a judgment on this point : the relationship between police officers and the chief constable is closely analogous to a contract of employment.” These passages were cited in Mullaney v Chief Constable of West Midlands Police [2001] EWCA Civ 700 where the Court of Appeal considered the duties owed to a constable. In paragraph 44 of his judgment Clarke LJ stated the argument for the claimant as follows :
“Although the defendant as chief constable was not the claimant’s employer, because there was no employment relationship properly so called between them, he was in much the same position as an employer and as such owed the claimant the same duty as an employer would owe to his employers.”
He held that this was correct and moved to consider the next point under the heading ‘breach of duty owed as quasi-employer’.[6]The position of police officers as office holders rather than employees has resulted in specific statutory provisions being made. Section 88 of the Police Act 1996 provides that the chief officers for a police area are liable for the torts of their officers. Vicarious liability would otherwise be lacking. Section 51A of the Health & Safety Act 1974 provides that ‘For the purposes of this Part, a person who, otherwise than under a contract of employment, holds the office of constable or an appointment as police cadet shall be treated as an employee of the relevant officer.’ Equivalent provisions are contained in the Employment Rights Act 1996 (sections 49A and 134A), the Sex Discrimination Act 1975 (section 17) and the Race Relations Act 1977 (section 76A) and in the Working Time Regulations 1998 (regulation 4).[7]Mr Michael de Navarro QC submitted on behalf of the insurers that section 145(4)(a) should be construed to include injuries sustained by a police constable acting in the course of his duties as injuries sustained ‘arising out of and in the course of his employment’: it should cover ‘quasi-employees’ as well as employees as strictly defined. He submitted that the position would otherwise be anomalous and would put police officers in a more favourable position than other employees for no good reason.[8]Employees have been excluded from insurance under the Road Traffic Acts since at least the Road Traffic Act 1930. The probable reason is that suggested by section 145(4A) of the 1998 Act, namely than in most situations the accident will be covered by employer’s liability insurance and there is no need for double cover. A police authority will have persons working for it apart from constables but it is not required to insure under the Employers’ Liability (Compulsory Insurance) Act 1969. This is presumably on the same basis that it is not required to take out Road Traffic Act insurance, namely that it will be good for the money. It thus appears that Parliament has proceeded on the basis that for that reason injuries to police officers do not need to be covered by road traffic insurance or employer’s liability insurance. The feature of the present case is that nonetheless the Kent Constabulary did take out road traffic liability insurance.[9]Section 144(2)(b) – quoted in paragraph 2, shows that the draftsman of the 1988 Act had in mind that a constable was not an employee. The draftsman could have made a provision in section 145(4)(a) equivalent to those referred to in paragraph 6 but he no doubt saw no need. The question for me is whether I should in effect do that for him by construing employment as covering the ‘quasi-employment’ of a constable. I do not consider that I should. My task is to construe the statute as it stands. I should only give the words a meaning different to their natural meaning if there is a cogent reason to do so. I do not find one here.[10]I conclude that section 145(4)(a) does not assist the insurers, and that, if, as section 151 requires, Mr Hale is treated as an insured, they are liable under the policy.

The point on section 145(4A)

[11]In view of my conclusion on the employment issue it is unnecessary for me to determine this issue. But I heard evidence from Mr Miller relating to it and was asked to consider the witness statements of other witnesses and their evidence at the trial of Mr Hales (he was convicted of attempted murder),and I heard submissions. I should determine the issue.[12]I have first to make some finding of fact. It is accepted that Mr Miller went up to the car after the two men had got into it and had locked the doors, that he tried the driver’s door and another door on the passenger side, and that he was shouting and banging on the windows. I am satisfied that his primary concern was that the car, his patrol vehicle, would be driven away. He was understandably extremely concerned, desperate, he said, at that possibility. Mr Harrild was a JCB driver. He had a close view of what happened. He heard the car and the motor bike engines and the siren and saw the car with its flasher on, siren going and driver’s door open. He walked towards it while Mr Miller was away from it trying to arrest Hales. He saw Hales and the other come back and get into the car. Mr Miller was about 10 metres behind Hales. He saw him try the driver’s door. He then tried the passenger door. He was shouting things like “Stop, get out of the car, leave the car.” He tried lifting the tailgate and puts his hand on the rear window, shouting “Stop the car.” The car then accelerated backwards. Mr Meadows had been working on a digger. He saw Mr Miller come round to the back of the car and try to get into the boot. He was beating on the back of the car. He heard him shouting “Stop”. He saw the car move back slowly at first and then at speed. He was about 40 metres away. Mr Mcdowell was working on a digger. When Mr Miller was trying to get into the car he was about 10 metres away. He said he saw Mr Miller banging on the driver’s window and to get the two men out of the car. He saw him move round and he finished at the rear. He was hitting the rear window. He looked as if he was trying to put his weight on the vehicle to stop it. Mr Clabon saw it from 100 yards away. He saw Mr Miller try the driver’s door and the passenger door before going to the rear of the car. Mr Miller’s evidence to me was that his reason for being at the rear of the car was to try and get in and not for any other purpose. He had not said that until his statement of 17 November 2005, but he said bits were still coming back into his memory. I think I have to be cautious in considering Mr Miller’s evidence because of his partial memory loss, his long period of unconsciousness and the injuries which he suffered. I should be mainly guided by the witnesses who made statements on the day of the incident.[13]I find that Mr Miller tried the driver’s door of the car. His intention was to get it open so he could get Hales out, or at least prevent him driving away. His intention was not then to get into the car. His intention in trying the passenger door was to get it open and to get the passenger out. He would then have tried to get Hales out, possibly perhaps by climbing through. But that would have been secondary. I make those conclusions because in my view they are a matter of common sense in the circumstances. Having failed thus far the probability is that Mr Miller went to the rear of the car to try the tailgate because all else had failed. He was understandably desperate. He could not have got through to the main part of the vehicle because of a grill like a dog grill sealing off the luggage compartment. But if he had got the tailgate open, it would have been something. I do not think that he wanted to get into the rear compartment. That would have got him nowhere, and would have been foolish. I find that the probability is that he did so to try and stop the car reversing away. He was banging on the rear window and probably pushed on it when the car started to move.[14]Mr Andrew Ritchie submitted on behalf of Mr Miller that Mr Miller’s actions came within the words in section 145 (4A) ‘entering or getting on’ the car. He submitted alternatively that when Mr Miller was under the car he was being ‘carried in or upon’ it. Mr de Navarro submitted that the words in subsection (4A) were synonymous with ‘passenger’, and that although an attempt to get into a vehicle to be a passenger in it could be covered, Mr Miller’s actions could not.[15]Subsection (4A) was inserted into the 1988 Act by the Motor Vehicles (Compulsory Insurance) Regulations 1992, S.I. 1992 3036. These were made to implement the Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles. The Directive included the following :
‘Whereas there are, in particular, gaps in the compulsory insurance cover of motor vehicle passengers in certain Member States; whereas, to protect this particularly vulnerable category of potential victims, such gaps should be filled; …… Article 1 Without prejudice to the second subparagraph of Article 2(1) of Directive 84/5/EEC, the insurance referred to in Article 3(1) of Directive 72/166/EEC shall cover liability for personal injuries for all passengers, other than the driver, arising out of the use of a vehicle.’
The Article 3(1) referred to in Article 1 provides the primary obligation to ensure that civil liability in respect of the use of motor vehicles is covered by insurance. The second subparagraph of the Article 2(1) referred to in Article 1 excludes from cover those who voluntarily entered the vehicle knowing it was stolen.

Article 1

[16]In the light of the Third Directive it may be asked why the draftsman of the new subsection (4A) did not use the word ‘passenger’. The reason is that he adopted the words used in previous legislation. The history is traced in part in the judgment of Popplewell J. in R v Secretary of State for Transport ex parte Nation Insurance Guarantee Corporation, 8 May 1996, unreported. The first Act which I have been able to find relating to compulsory third party insurance in respect of the use of motor vehicles is the Road Traffic Act 1930. Section 35 required the insurance. Section 36(1) contained a proviso excepting death or injury arising in the course of employment, and ‘except in the case of a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, liability in respect of the death of or bodily injury to persons being carried in or upon or entering or getting out of or alighting from the vehicle at the time of the occurrence of the event out of which the claims arise.’ [My italics] The proviso to section 36(1) of the 1930 Act was re-enacted with minor changes in section 203(4) of the Road Traffic Act 1960. Under the provisions of the Road Traffic Act 1972 passengers were not excluded from cover, but employees were excluded. That position was unchanged under the provisions of the Road Traffic Act 1988. The reason for the insertion of subsection (4A) to section 145 is evidently that it was felt that the exclusion of employees by section 145(4)(a) could exclude from cover an employee who was a passenger, which would be contrary to the Third Directive. The last part of the new subsection relating to cover pursuant to the 1969 Act must have been included to avoid a need for double cover. The draftsman of the 1930 Act referred first to passengers and then to persons being carried etc. The likely reason is that he wished to avoid uncertainty as to whether persons entering, getting on or alighting were passengers. The draftsman of the 1992 Regulations appears to have taken the same view. In the National Insurance Guarantee case Popplewell J. held that the words of subsection (4A) were not apt to include the driver of the vehicle because the intended reference was to persons who were passengers. There are two firm grounds for that conclusion. The first is the legislative history of the words of the subsection, in particular the occurrence of the word ‘passengers’ in section 36 of the Road Traffic Act 1930 and in section 203(4) of the Road Traffic Act 1960. The second is the Third Directive. As to it being appropriate to rely on the latter I refer to Litster v Forth Dry Dock & Engineering Co 1 AC 546 at 576 per Lord Oliver.[17]Turning back to the facts of the present case and my findings in paragraph 13, I do not consider that in any ordinary sense what Mr Miller was doing can be described as entering the vehicle or attempting to enter the vehicle. He wanted to get the doors open but he did not want to get inside it. But if I am wrong on that, he did not have any intention of entering the vehicle to be a passenger in it, that is, someone who would be carried by it. Intention may be properly relevant as is shown by a case dealing with another aspect of vehicle insurance: Dunthorne v Bentley & Hume [1996] PIQR 323. In my view an attempt to enter must be an attempt to enter to be a passenger if it is to come within the subsection.[18]Mr Ritchie’s alternative submission was that Mr Miller was being carried upon the vehicle when it reversed taking him with it. The precise manner in which Mr Miller was taken back with the car is unclear. He may have become tangled with the under part of the car so that it bore some of his weight and in that sense carried him. Or he may have been simply dragged back. But I do not consider that, even if the former is right, that it would come within the meaning of subsection (4A). It is simply not the kind of being carried to which the subsection is directed. It is directed to being carried in the normal way and as a passenger.[19]It was submitted by Mr Ritchie on behalf of Mr Miller that section 145 (4A) was to be construed purposively, namely so all injuries arising from the use of a car were covered. That, he submitted, was the purpose as shown by the First and Second Directives, and he referred to the opinion of Lord Nicholls in White v White [2001] 1 WLR 481 at paragraph 14. But section 145 does not adopt a “cover-all” approach. It takes the approach of excluding employees and then excluding from the exclusion employee passengers. I have to construe the provisions which have been enacted.[20]I would therefore hold that Mr Miller cannot rely on section 145(4A) if, contrary to my view, his claim is within section 145(4)(a).

Conclusion

[21]I conclude that for the purpose of section 151 Mr Miller’s injuries were required to be covered by insurance pursuant to section 145. Mr Miller is entitled to a declaration that the second defendant insurers are obliged to pay whatever the first defendant, Ricky Hales, is bound to pay under the judgment entered against him.