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Whodunnit? Failure to prove the identity of driver denies Pursuer remedy

16 May 2019

The recent All Scotland Sheriff Personal Injury Court case, Smillie v Zenith Insurance, serves as a cautionary tale for individuals involved in road traffic accidents where there is any doubt about the identity of the other driver.

One evening in July 2016, the Pursuer, a cyclist, left his home to travel the fifteen miles or so to his cycling club. At about 7pm, he claimed he was passed by a red Seat car travelling very close to him at speed. He directed a “rude gesture” towards the vehicle, and the driver responded in kind before disappearing out of view. The Pursuer claimed that shortly thereafter, he rounded a corner and noticed the same car travelling towards him. He claimed it crossed onto his side of the road and “drove at him”, knocking him to the ground. He was able to recall the make, model and colour of the car, but had only managed to note part of the registration number before it drove off. When reporting the accident to police, he described a male driver.

Calum Sweeney
Calum Sweeney
Associate

The Police database searches indicated a likely match for the vehicle at a nearby address, with a female registered keeper and a male named driver.  The Police attended the address, where the female keeper of the vehicle admitted passing the locus daily on her way home from work. She was required by the Police, in terms of section 172 of the Road Traffic Act 1988 (the Act), to name the driver of the vehicle at 7.00pm on the date of the accident. She confirmed that it could have been her, but denied knowledge of any accident. She was subsequently charged with dangerous driving under section 2 of the Act, although apparently not before the suggestion was put to her by police that she was “covering up” for her male partner. The criminal charges did not proceed, but were dropped before trial.

In the civil claim, the pursuer directed his action against the vehicle’s RTA insurers, naming the female keeper as the driver. The keeper gave evidence and was held by the Sheriff to be credible and reliable. It was accepted that she had arrived home from work by 6.45pm, having passed the locus at around 6.35pm. The pursuer’s evidence, however, was inconsistent. His position was that he “did not get a look at the driver”, despite him having initially reported to police that the driver was male, before subsequently naming the female in his court action. Moreover, under cross-examination, the pursuer changed the timing of when he left home from 6.00pm to 6.30pm, a difference the Sheriff considered to be significant.

The judgement turned on the Sheriff’s findings of fact. He found on the balance of probabilities that the pursuer was involved in an accident with a car as he claimed. He also found that the car involved was the red Seat owned by the female keeper, and that the car had been driven in a reckless and dangerous manner. However he made a finding in fact that the keeper was not the driver at the material time. The pursuer, therefore, having failed to prove any fault by the keeper at common law, also failed in the case against her insurers.

This point of principle was also addressed in the recent Supreme Court decision of Cameron v Liverpool Victoria, 2019, in which the claimant sought to trigger an insurer’s liability under section 151 of the Road Traffic Act 1988 by seeking judgment against “an unknown person” who had been driving an identified vehicle.  The court reaffirmed that in such circumstances, there is no remedy against insurers under the 1988 Act and the appropriate recourse is to the Motor Insurance Bureau.

In our view, the Sheriff’s decision was well-founded given the obvious requirement to identify the party said to be at fault, not simply the vehicle involved. The decision in Smillie is therefore likely to be a welcome one for insurers.

 Contact: Calum Sweeney, Associate csw@bto.co.uk T. 0141 221 8012

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