Use of a Motor Vehicle Criminal Intent

AXN & ORS v (1) JOHN WORBOYS (2) INCEPTUM INSURANCE CO LTD (FORMERLY HSBC INSURANCE (UK) LTD) (2012) Queens Bench Division (Silber J) 25 June 2012

The victims of a taxi driver, who lured women into his taxi, sedated and sexually assaulted or attempted to assault them, could not claim against the driver's motor insurer. Their injuries did not "arise out of the use of a vehicle on a road" within the Road Traffic Act 1988 s.145(3)(a), his deliberate acts were not required to be and were not covered by the insurance and his use of the vehicle at the time was not an insured use.

The Court was required to determine preliminary issues in a claim against the motor insurer of a taxi driver (W) who had been convicted of a number of offences against women.

W committed his offences after finishing his legitimate work as a taxi driver. He targeted women who were alone at night and who needed transport home. During their journeys home, W persuaded them with lies to accept alcoholic drinks, which he had previously laced with sedatives. He then carried out sexual assaults on his sedated victims. W's victims had brought claims against W for damages alleging assault by poisoning, sexual assault and false imprisonment. The preliminary issues were concerned with whether and to what extent, the claimants (C) had, in addition to their claims against W, valid causes of action against the defendant Insurer (D) as the provider of the compulsory motor insurance required by the Road Traffic Act 1988. W's insurance policy provided cover for "social, domestic and pleasure purposes and for use for public hire". The preliminary issues were whether (i) the bodily injuries suffered by C "arose out of the use of W's vehicle on a road or other public place" within the meaning of s.145(3)(a) of the Act; (ii) liability in respect of W's acts of poisoning and sexual assault was required by s.145(3)(a) to be covered by a policy of insurance, and was covered by the policy issued by D; (iii) W's use of the vehicle at the material times was a use insured by the policy; (iv) D was liable pursuant to s.151 to pay to C any sum payable pursuant to a judgment obtained against W.

HELD: (1) The concept of "arising out of" was wider than "caused by" and contemplated more remote consequences. It was necessary to consider whether the injuries of the claimant were matters "arising out of the use of the car" and to analyze the activities of the driver to see what he was doing at the time when the injuries were suffered in order to ascertain if they were "arising out of the use of the car", Dunthorne v Bentley [1996] R.T.R. 428 followed, Beazley Underwriting Ltd v Travelers Companies Inc [2011] EWHC 1520 (Comm), [2012] 1 All E.R. (Comm) 1241 considered. Following Dunthorne, C's injuries were caused by the criminal acts of W in administering sedatives and then in attempting to or actually assaulting C, and did not arise out of the use of the taxi on a road (see paras 58-65 of judgment). (2) The injuries sustained by C did not arise out of W's use of a vehicle on a road and so they were not required by s.145(3)(a) to be covered by insurance, Charlton v Fisher [2001] EWCA Civ 112, [2002] Q.B. 578 considered. The decision in Charlton assumed that the provisions of s.145(3)(a) related solely to injuries caused by or in relation to criminal driving and not extraneous conduct such as poisoning and carrying out or attempting to carry out sexual assaults. The wording in W's insurance policy covered "accidents involving your vehicle" and that could not be interpreted as covering deliberate poisoning and sexual assaults. Those words showed that there was a requirement for W's taxi to be involved in an accident, and the deliberate acts of poisoning and of committing sexual assaults could not be regarded as satisfying that requirement even if they occurred in the taxi (paras 79-84). (3) To determine if a use was permitted under a policy, the Court had to ask what was the primary purpose or essential character of the journey in the course of which the particular incident occurred, Seddon v Binions [1978] 1 Lloyd's Rep. 381 and Caple v Sewell [2001] EWCA Civ 1848, [2002] Lloyd's Rep. I.R. 627 followed. The purpose had to be determined at the time when the incident occurred and not at the start of the journey, Keeley v Pashen [2004] EWCA Civ 1491, [2005] 1 W.L.R. 1226 followed. The critical factor was the driver's intention, Caple followed. If the essential character of the journey consisted of use for a criminal purpose, then the vehicle would not be covered, Keeley followed. By the time that C were sedated and assaulted or the subject of attempted assaults, the essential character or purpose of the journey was criminal and the use was not covered by the insurance (paras 105-108). (4) Having regard to the answers to the first three issues, D was not liable, pursuant to s.151, to pay C any sum payable pursuant to a judgment obtained against W (para.109).

Preliminary issues determined in favour of defendant.