The Court of Appeal recently reaffirmed the position in Tumusbeyezu v Muresan and the Motor Insurers Bureau of Ireland  IECA 191 that with the correct evidential proof the MIBI, or any insurer who is standing in their shoes, can avoid liability where they have good evidence to demonstrate that the Plaintiff knew that they were travelling in a vehicle without a valid policy of insurance.
This decision serves as a timely reminder to those insurers and practitioners involved in defending claims of this nature that with thorough investigation and good evidence it is possible to successfully avoid liability on behalf of your client.
In this case the Plaintiff/Appellant was a back seat passenger in a vehicle that was involved in a single vehicle road traffic accident on 26 June 2017 resulting in him sustaining serious injuries. The Plaintiff sued the driver of the vehicle and the MIBI as there was no valid policy of insurance in place at the time of the accident.
Whilst primary liability was not an issue as regards the driver the MIBI argued that they were not required to satisfy the judgement as they could rely on Article 5.2 of the 2009 MIBI Agreement which states that:
"Where at the time of the accident the person injured or killed or who sustained damage to property voluntarily entered the vehicle which caused the damage or injury and MIBI can prove they knew that there was not in force an approved policy of insurance in respect of the use of the vehicle, the liability of the MIBI shall not extend to any judgement or claim either in respect of injury or death of such person while the person injured or killed was by his consent in or on such vehicle on in respect of damage to property while the owner of the property was by his consent in or on the vehicle."
In the High Court the MIBI relied on the evidence of the driver who stated that he had told the Plaintiff, and other passengers of the vehicle, that he had no insurance, driving licence or road tax. This was denied by the Plaintiff and two other passengers in the vehicle. The defendants also relied on the evidence of the Garda officer regarding the demeanour of the occupants of the vehicle in the aftermath of the accident.
The Judge having heard the totality of the evidence was satisfied that the MIBI has discharged the burden of proof in proving that the Plaintiff knew the driver was uninsured. The effect of this being that MIBI would not have to satisfy any judgement.
The Plaintiff appealed on the basis that they considered the Judge should not have been satisfied that the burden of proof had been discharged.
The Court of Appeal undertook a detailed analysis of the factors that the Court should consider when dealing with a conflict of evidence but considered that the Judge had not erred in the way he analyse the evidence and dismissed the Appeal.
This is a welcome decision for the MIBI and Insurers as it shows that it is possible to successfully avoid liability where they are able to obtain the requisite evidence and that a conflict of evidence is not fatal.
Written by Neil Cahill.
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