HILBERY J. On 26 August 1938, about 9.30 pm, the plaintiff's husband was knocked down and very seriously injured by a Ford van, then driven and controlled by the defendant William Edward Buck.
The claim is put against the defendant Henry Albert Buck, in this way. It is alleged that Henry Albert Buck was in truth the owner of the van, and that he caused or permitted the user of that van on the road on the occasion in question when there was not in force in relation to the user of that vehicle, by him or by his brother who was using it, such a policy of insurance in respect of third party risks as complied with the requirements of the Road Traffic Act 1930. In the alternative, if it was not his vehicle, if he was not the owner, none the less he was the person who caused or permitted the user of that vehicle on the road on the occasion in question when there was not in force in relation to that user such a policy of insurance. It is said that William Edward Buck had signed a proposal for an insurance of this vehicle, putting in the name of Henry Albert Buck as the proposer and as the registered owner of the vehicle, and had obtained a policy on the vehicle on the
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basis that Henry Albert Buck was the proposer and the person insured in respect of the vehicle, the vehicle to be driven by the driver named in the proposal, namely, William Edward Buck.
It is proved that in an action which was instituted by the insurance company who issued the policy based upon that proposal, Branson J, on 12 May 1939, declared that that policy was avoided at the suit of the insurance company; and it is said that, as the policy was avoided in law at the suit of the insurance company, the parties were for all purposes in the position of there never having been an insurance in respect of this vehicle, either at the time when it was being driven and the accident occurred, or since it was acquired. Then it is said that Henry Albert Buck, in the circumstances, even whether he became the owner or did not become the owner, by what he did and is shown to have done, caused or permitted the user of this vehicle on the road by his brother, when there was not in force in relation to it and its user, either by him or by his brother, a policy of insurance complying with the requirements of the Road Traffic Act 1930.
Now first of all as to whether the vehicle, on the facts shown before me, was the property or not of Henry Albert Buck, I had better say what I find as a matter of fact in that connection. William Edward Buck, was impecunious-there is no doubt about that. He had not a van for the purposes of his business. Henry Albert Buck was apparently in a better financial position than his brother. I have not any reason to doubt that his brother, William Edward Buck, went to Henry Albert Buck and asked for a loan to enable him to buy a van, and he got it. Loose phrases are used in a statement that was taken and signed by Henry Albert Buck, in which he said: "I bought the van, and it is registered in my name"; but be it observed that he says: "My own vehicles are insured by the Motor Union" two lines after saying that very thing, and drawing a distinction, I think, between what were his own vehicles, and this van, which he realised was not his own vehicle. These brothers were quite ready to act together, I think unscrupulously, so as to prevent this van being available in the case of an execution put in by the creditors of William Edward Buck and so as, if possible, to safeguard it as some sort of security for Henry Albert Buck for the loan which he had made. I think that is the common-sense inference to be drawn from what they did.
In the suit brought by the insurance company, Branson J, found as a fact:
Again, I have not the least hesitation in saying that I come to the same conclusion of fact. H A Buck was not in fact the owner of the van
Now how does that affect the situation? Of course, when the owner of a motor vehicle which, if it is to be used on the road, has to be covered by an insurance which will satisfy the requirements of the Road Traffic Act, allows it to be used on the road (he being the person having the right to prevent it from being used) by another person who is not insured, he breaks one of the statutory duties imposed upon him under the Road Traffic Act 1930, s 35(1), and it has been held in
Monk v Warbey that where an owner causes or permits a motor car to be driven uninsured, and the person allowed to drive it, in the course of the driving which is permitted by the owner, tortiously causes damage to another person so that that person suffers damages, and it is then shown that because the tortfeasor was allowed to drive and was uninsured, those damages are lost to and irrecoverable by the sufferer from the tort, then the sufferer can recover a like sum as the measure of what he has been unable to recover, as a result of the breach of the statutory duty which the owner of the car was under not to allow its user uninsured.
Here, the first point to observe is that in fact it is clear that Henry Albert Buck was never the owner, and it was not, therefore, for him to prevent William Edward Buck, to whom he had advanced money to enable him to buy the van, from driving the vehicle. I find nothing on the facts to show that he could, once he had lent the money and William Edward Buck had bought the vehicle, prevent William Edward Buck from driving it on the road. To say that he had lent him the money to buy it and therefore caused him to drive it, seems to me to give an entirely false meaning to the word "caused." To lend the money and thus enable a person to have a vehicle which he may or may not insure is one thing. It is quite another thing to say that by enabling him to have a vehicle which he might not insure he caused him to drive it uninsured when he did so drive it. There is in that, to my mind, a complete
non sequitur. An act which merely enables a person to be in a position to do something which is illegal is not an act which of itself causes a person to do the illegal act. I should have thought that was too plain for words. It was not, therefore, as in
Monk v Warbey, as an owner that he was causing or permitting this van to be driven on the occasion in question.
It is, however, said that he none the less caused or permitted it to be driven on that occasion without a valid insurance satisfying the requirements of the Road Traffic Act, because he himself, on the statement that he has made, is shown to have lent himself to an attempt by his brother to insure it in his name, and he must have known that the result of allowing his brother to do that, when it was not really his car, was to
110 enable his brother to take out a policy which, it is said, was void. I am not satisfied at all that either of these brothers thought that they were obtaining a policy which was invalid. I think they thought they could validly do what they were doing. Even if I assume that they must be taken to have known that what they did in entering these answers on the proposal would produce only a policy which was a voidable policy, that seems to me to be a wholly different thing from saying that what they were doing was to bring about a state of affairs where there was a policy which the company would avoid and which would mean that they were driving the car from the start uninsured. It appears to me first of all that this policy, from the time when the proposal form was filled up, and incorrectly filled up, was voidable; but that does not mean the same thing as void. If the insurance company never elected to avoid it, it was a valid and subsisting policy. The insurance company was not bound to come to the court and elect to avoid it. I gave the example, in the course of the argument, of the set of circumstances where one might quite rightly suppose that an insurance company, with a policy which it saw it could avoid, and which a court would have to declare void if it came to the court, might still elect to pay the claim rather than go to the expense and bother of a law suit in order to get a declaration that they were entitled to avoid the policy-a small claim in the last week of the year of life of the policy. The result is that the car was being driven with a valid insurance upon it at the time of the accident, notwithstanding that it was a voidable one; and the answer here seems to be that this was a voidable policy but not a void one. As between the immediate parties to it, and in considering the rights and liabilities which it purported to create, when once there has been a declaration of avoidance by the court it is, of course, as though the risk had not been written between the parties. None the less, although that is the situation created with regard to the rights and liabilities as between the parties to what purported to be that contract, it does not necessarily mean that, as regards the Road Traffic Act 1930, s 35(1), that policy must be regarded as never having been in existence at all.
The question that has to be determined under the section is whether, at the time when the accident happened, and the motor vehicle in question was being used, some person caused the user by another person of that motor vehicle on the road when there was not in force in relation to the user of the vehicle by that person or that other person, such a policy of insurance or such a security in respect of third party risks as complied with the requirements of this part of the Act. Well, first of all, it is to be observed that the words are "unless there is in force in relation to the user of the vehicle, a policy which satisfies the requirements of the Act." Therefore, what has to be looked at is this: was there at the time of the user of the vehicle a policy which was then in force? The fact that the rights which were created by that contract of insurance
111 were subsequently successfully avoided so far as the immediate parties to it were concerned, does not, it seems to me, prevent there having been a policy in force at the time of the user of the vehicle which is in question, when, as I have said, one remembers that, at that time, there had been no avoidance of it, and might never have been any avoidance at all if the insurance company had chosen to abide by it.
Therefore, looking at the time when the tortious act and the user in question occurred, it seems to me that it follows that there was in fact at that time a policy in respect of the car which was a policy which complied then with the terms of the Act in question, and indeed I think that to hold otherwise would have a very far-reaching effect. For example, this man, I suppose, would be liable and would have no answer to a summons in respect of every day on which it could be shown that he had driven that vehicle, when he had a certificate of insurance of the vehicle which was issued to him because of this voidable policy being in existence; and he would have no answer to a conviction in respect of every day. Moreover, I suppose the result would be, if that contention of the plaintiff here were right, that any owner to-day, who has a policy and has not the least conception that there is any ground on which the company might avoid it but none the less there exists a ground on which the company might avoid it, would find himself in the situation that equally he would, when the company did avoid it, be liable to prosecution in respect of every day that he drove the car, with that certificate in his pocket which appeared to comply with the requirements of the Act. He would be liable as well to pay out of his own pocket the damages of some third party if he quite properly had delegated the driving or let the car be driven by another person with his authority.
I am satisfied that for these reasons the claim fails as against Henry Albert Buck. It is not contended that he had any liability as the superior of William Edward :Buck; it is only contended that his liability arises by reason of the fact that William Edward Buck had no valid insurance under the Act because it had been declared void, and he is impecunious, and, it is said, was caused or permitted by Henry Albert Buck to drive on this occasion. As I have said, I do not think Henry Albert Buck was the owner. I do not think that he, as owner, had caused or permitted the driving of the vehicle. I do not think he caused or permitted the driving of the vehicle because I do not think he was in any position, in relation to the vehicle, which gave him any power or right to prevent the driving of the vehicle, and the vehicle was not being driven because he had given any necessary permission, nor, in my view, can he be sensibly or logically said to have caused the user of the vehicle by William Edward Buck.
