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Report No. 51

22. Position in England.-

We may first discuss the position in England. England has, for some time past, a scheme where under the Motor Insurance Bureau accepts liability to compensate for automobile accidents, in certain cases of unsatisfied judgment. The English scheme is non-statutory, but still of interest. The scheme originated in an agreement. On June 17, 1946, the Motor Insurance Bureau1 entered into an agreement with the Minister of Transport to give effect to the principle recommended in July, 1937, by a departmental committee under the chairmanship of the late Sir Fellix Cassel-

"to secure compensation to third party victims of Road accidents in cases where, notwithstanding the provisions of the Road Traffic Acts relating to compulsory insurance, the victim is deprived of compensation by the absence of insurance, or effective insurance.".

1. See Fire Insurance Co. v. Greene, (1964) 2 All ER 761 (764) (Stephenson, J.).

23. The English scheme is described in a white paper as a memorandum or agreement made on June 17, 1946, between the Minister and Motor Insurance Bureau, supplemental to the principal agreement made on December 31, 1945, between the Minister of War Transport and the insurers. Its principal provision, clause 1, is thus:-

"If judgment in respect of any liability which is required to be covered by a policy of insurance or a security under Part 2 of the Road Traffic Act, 1930 is obtained against any person or persons in any court in Great Britain whether or not such person or persons be in fact covered by a contract of insurance and any such judgment is not satisfied in full within seven days from the date on which the person or persons in whose favour the judgement was given became entitled to enforce it, then Motor Insurance Bureau will, subject to the provisions of clause 5 and clause 6 of these presents, pay or satisfy or cause to be paid or satisfied to or to the satisfaction of the person or persons in whose favour the judgment was given any sum payable or remaining payable thereunder in respect of the aforesaid liability including taxed costs whatever may be the cause of the failure of the judgement debtor to satisfy the judgement."

24. The English scheme does not cover injury caused by an unidentified, or "hit- and-run" driver, because an unsatisfied judgment is a pre-condition of the Motor Insurance Bureau's liability under the scheme.

25. The question of untraced drivers was considered in detail in England, and we quote from a fairly recent study1-

'It sometimes happens that a road victim is injured by 'a motorist who cannot be traced. There is no question of any individual insurer being liable, so all that the victim can hope for is that the Motor Insurers' Bureau will compensate him.

Whether he should be given a right to compensation was considered as long ago as 1937 by the Cassel Committee, which stated in their report that "we have not found it possible to deal with the case of a third party injured by a motorist who cannot be traced. In such a case it is impossible to establish a claim against anyone and, in our opinion, the grant of a right against the Central Fund would be calculated to lead to such abuses as to render such a course totally unsuitable.'

In 1946, the Central Fund referred to in the Report became the Fund voluntarily contributed to by those individual insurance companies which are members of the Motor Insurers' Bureau. This Fund is used solely to further the objects of the Bureau, and to satisfy in satisfied judgments in favour of third parties, without profit to its members.

The explanatory notes to the Motor Insurers' Bureau Agreement state that "the liability of the Bureau does not extend to the compensation of any person who may suffer personal damage resulting from the use on a road of a vehicle, the owner or driver of which cannot be traced. The Bureau will not however, necessarily refuse to act in these cases. Where in its view, there is reasonable certainty that a Motor-vehicle was involved and that except for the fact that the vehicle, owner or driver cannot be traced, a claim would lie, the Bureau will give sympathetic consideration to the making of an ex gratia payment to the victim, or his dependents".

This absolute discretion was strongly criticised by Sachs J., in Adams v. Andrews, where the negligence of an untraced motor-cyclist caused the driver of a car, in which the plaintiff was travelling as a passenger, to serve and overturn. His Lordship said that the situation was as illogical as it was unjust. In cases where the liability of a driver was under the Road Traffic Acts "required to be covered by a policy of insurance", either the driver of the hit-and-run car was insured as by law required-in which case one of the member companies of the Bureau would normally have to pay any damages awarded by the Court-or else he was not insured-in which case the Bureau would likewise have to pay, if he had been found and judgment entered against him.

That the injured person could not recover as of right merely because he could not secure a judgment as the driver had successfully evaded identification was lamentable. It only provided for insurance companies as a whole a potential avenue of escape from liabilities which in principle they had accepted. He who had to go cap-in-hand for an ex gratia payment was always at a disadvantage.

The learned judge then went on to say that whatever might be the Bureau's practice, it was important that it ought not to be in a position wholly to decline liability simply because some other motorist or some other person, who was under no duty to insure against the particular risk, was also partly to blame. Moreover, if there were cases which were to be left to the discretion of the Bureau, it was worthy of consideration whether it was right for claims important to the individual claimant to be turned down by unnamed administrators against whose decision no appeal would lie.

Compensation for Injuries caused by Automobiles in hit-and-run Cases Back

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