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Lethal weapon

Lethal weapon

Vehicles used as weapons against the innocent

The High Court has issued judgment in what will surely come to be regarded as a seminal case involving motor vehicle insurance law in Ireland.

The case of Gerard Mongan v Martin Mongan and the Motor Insurers Bureau of Ireland considered the interplay between domestic legislative provisions (section 56 of the Road Traffic 1961), the Motor Insurers Bureau of Ireland Agreement, and the EU Motor Insurance Directives.

The Circuit Appeal Court decision in Mongan (29 May 2020) was in respect of a case in which the Motor Insurers Bureau of Ireland (MIBI) asserted that it was not liable for the injuries caused by an uninsured driver in circumstances where those injuries were caused, not by the negligent driving of the vehicle, but rather as a result of an assault and battery where the vehicle was used as a weapon.

Lethal weapon

Lethal weapon

The case can therefore be seen to have serious and far-reaching implications. One only needs to briefly pause in order to recognise that we live in a sometimes-scary world, with a modern history of vehicles being used as weapons against the innocent.

We can all remember the events of Bastille Day 2016, when a driver deliberately drove a vehicle into a crowd, killing 84 people and injuring 200 more. We remember the news from Charlottesville, USA, in August 2017, when a car rammed protestors, killing one and injuring 19 others. We saw similar scenes play out in Britain, Spain and Germany in the recent past. 

Extraordinary incident

Mongan involved an extraordinary incident in which the drunken and estranged son-in-law of the plaintiff drove his vehicle (while uninsured) toward the injured party (who was standing at the entrance gate of his home), hitting him head-on and knocking him to the ground, inflicting injury to the plaintiff’s left knee.

The matter came before Mr Justice Denis McDonald by way of an appeal from the Circuit Court, whereby the trial judge (Judge Karen Fergus) had rejected the MIBI’s contention and arguments, and found in favour of the plaintiff.

The MIBI relied upon clause 4.1.1 of the Motor Insurers Bureau of Ireland Agreement, dated 29 January 2009, which provides the obligation to indemnify an insured person in respect of injury or death, which is required to be covered by an approved policy of insurance under section 56 of the Road Traffic Act 1961.

Nub of the issue

The nub of the issue was the MIBI’s view that section 56 only extends to liability for negligent use of a vehicle and does not extend to use with intent to injure (such as had occurred in this case).

In terms of the material facts, McDonald J stated: “I believe and so find, on the balance of probability, that, at the moment the vehicle struck the plaintiff on 16 June 2013, it was driven by the first-named defendant in a manner that demonstrates that his object was to hit the plaintiff. In that sense, the MIBI is correct in submitting that the vehicle was being used, at that moment, as a weapon with which to attack the plaintiff.”

The judge went on to state: “Accordingly, I find that, at the moment of impact, the first-named defendant drove his car towards the plaintiff with a view to striking the plaintiff as the latter stood on the footpath outside his home.”

In that regard, the record states that the first-named defendant was convicted of various road-traffic offences on 29 January 2014 in Galway District Court, including driving without insurance contrary to section 56(1) and 56(3) of the 1961 act (as amended).

Negligent use

The court looked to the act and, in particular, section 56, and noted that there was no definition of ‘negligent use’ provided. In the circumstances, the court felt it therefore necessary to consider what was intended by the Oireachtas by use of the words ‘negligent use’ and, in particular, what was intended by the use of the word ‘negligent’.

The MIBI’s submission was that the intentional driving or use of a vehicle as a weapon to injure a person does not fall within the ambit of section 56(1) of the act.

The court was, therefore, faced with the task of considering section 56(1) and clause 4.1.1 of the MIBI Agreement in light of the provisions and object of the EU Motor Insurance Directives.

In that regard, the court noted that, as a starting point, EU law requires that member states must put in place appropriate measures to ensure that the use of vehicles normally based in their territory are covered by insurance.

First, Second and Third Directives

That obligation, which is designed to protect the victims of road-traffic accidents, was imposed under the provisions of what are known, in a motor insurance context, as the First, Second and Third Directives (Council Directives 72/166/EEC, 84/5/EEC and 90/232/EEC respectively), which were subsequently amended on a number of occasions and which have now been replaced by the Sixth Directive (Directive 2009/103/EC – the 2009 directive).

The court noted the considerable number of judgments delivered by the CJEU in relation to the motor insurance directives. In this case, the MIBI sought to rely upon two decisions, namely Case C-348/98 (Ferreira) and Case C-514/16 (Rodrigues de Andrade).

Andrade concerned a tragic occurrence whereby a tractor engine was being used to power a herbicide-spraying device in a vineyard. Crucially, the tractor was not being used as a means of transport at the material time. Ultimately, something went awry, and the tractor overturned and rolled down a hillside, with the result that several vineyard workers were killed.

Use of vehicles

At paragraph 42, the CJEU concluded that the concept of the ‘use of vehicles’ in article 3 does not cover a situation in which a tractor has been involved in an accident at a time when its principal function was not to serve as a means of transport but to “generate, as a machine for carrying out work, the motive power necessary to drive the pump of a herbicide sprayer”.

In taking that approach, the CJEU pointed out, at paragraph 37, that motor vehicles referred to in the definitions contained in article 1(1) of the First Directive “are, irrespective of their characteristics, intended normally to serve as means of transport”.

Ferreira established that the directives do not go so far as to prescribe the types of civil liability that are required to be covered by insurance. Accordingly, the MIBI argued that the member states (including Ireland) retained the discretion to define what kinds of civil liability must be covered.

In the circumstances, the MIBI placed significant emphasis upon the wording of section 56 of the act and, in particular, ‘negligent use’.

Duty of care

In Mongan, the plaintiff argued that the words ‘negligent use’ in section 56(1) of the act should be construed as extending to any use of a vehicle that falls within the tort of negligence.

Counsel for the plaintiff submitted that the behaviour of the first-named defendant on the night in question represented a very obvious breach of his duty of care as a driver of a motor vehicle, and that it did not matter, in this context, that he may have acted intentionally. Counsel asked rhetorically: how could it be suggested that the first-named defendant did not breach his duty of care to the plaintiff?

The court found the submission of counsel for the plaintiff helpful as regards understanding and interpreting the Oireachtas’s intention in drafting section 56. Counsel referred the court to the now struck-down and unconstitutional provisions of section 57 of the act (Cullen v Attorney General).

The court stated that “the two sections are clearly designed to be read together. Section 57 … purported to empower the District Court, on conviction of a person under section 56 for failure to have insurance, to impose a fine equivalent in amount to the damages that might be awarded to a person injured by the accused’s ‘negligent’ use of the vehicle.

“In my view, there is considerable merit in the argument made by counsel for the plaintiff that the Oireachtas was unlikely to have intended to give the District Court such a significant power in cases of careless driving, but not in the case of driving with intent to hit or injure such as might occur, for example, in a road rage incident.”

Central finding

After a considerable and detailed assessment of various cases, McDonald J made a central finding at p63 of his judgment: “In these circumstances – and having regard to the very clear guidance given by the CJEU – it seems to me that the word ‘accident’ should be read broadly to cover not only unintended incidents, but also cases where a driver has acted intentionally in striking an innocent third party.”

The court gave consideration as to whether a reference should have been made to the CJEU for a preliminary ruling on the interpretation of the 2009 directive; however, given the very clear line of authorities from the CJEU, the court found that it had sufficient guidance as to the meaning and object of the 2009 directive.

The court went on to make a further key finding, that “the 2009 directive requires that the injury suffered by a person in the position of the plaintiff as a consequence of an incident of the type which occurred on 16 June 2013 … must be covered by a policy of motor insurance.

I am of the view that, under the 2009 directive, the fact that the first-named defendant, in his inebriated state, at the moment of impact, had the object of injuring the plaintiff, does not mean that liability for the injury was not required to be covered under a policy of insurance of the kind required by the directive.”

Mr Justice McDonald thereby clearly and unequivocally rejected the contention and argument of the MIBI.

Assault and battery

The court has now established as settled law that the MIBI is liable for the injuries caused by an uninsured driver, in circumstances where those injuries were caused as a result of an assault and battery where the vehicle was used as a weapon.

The certainty provided by Mr Justice Denis McDonald in this decision is to be very much welcomed. The court has clearly established that people should be, and will be protected, should they find themselves victim to an assault and battery where a motor vehicle is used as a weapon. 

Colin Lynch is a partner in McInerney Solicitors and a part-time member of the International Protection Appeals Tribunal