Judge Defines Third-party Liability
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I N the King's Bench Division on Monday last, Mr Justice Atkinson gave judgment in an action brought by Mrs. Theresa Mary Sutch, of Distillery Road, Brentford, suing, as administratrix of the estate of her husband, who died aftei being thrown off a lorry owned by Convoys, Ltd.
The lorry had delivered reels of paper to Mono Containers, Ltd., at Park Royal, and, at the request of the yard foreman, John Henry Welling, driver of the lorry, agreed to take further reels of paper to other premises of Mono -Containers, Ltd., on the opposite side of the road. Sutch, who was employed by Mono Containers, Ltd., was riding on the lorry when Welling turned it in the road, and he and a reel of paper fell at the same time and was killed.
Mrs. Sutch brought an action in the King's Bench Division against Convoys, Ltd., and Welling.
The judge, Mr. Justice Wrottesley, held that Convoys, Ltd„ was not liable, but that Welling, who was driving outside the scope of his authority, was liable. He awarded Mrs. Sutch £1,650 in au, with costs, against Welling. The judgment was not satisfied, and Mrs. Sutch now sued Mr. Arthur Buins, of Hutton, Essex, who, with 10 other Lloyd's underwriters, had issued to Convoys, Ltd., a policy of insurance against third-party risks,
Mrs. Sutch claimed that Welling was covered by the insurance policy and that under Section 10 of the Road Traffic Act, 1934, she was entitled to proceed direct against the insurers. Defendant denied liability or that Welling was covered by the policy in the circumstances.
Giving judgment, Mr. Justice Atkinson said that Mr. Burns was defending the action on behalf of himself and all other underwriters who subscribed to the policy. On March 1, 1937, the defendant issued to Convoys, Ltd., a policy of insurance which was supposed to indemnify it against air third-party risks
Mrs. Sutch brought successful proceedings against Welling, the judge, Mr. Justice Wrottesley, finding in favour of Convoys, Ltd. Welling, having no financial status, did not pay. Mrs. Sutch, therefore, now claimed against the underwriters, supposing, of course, that Convoys, Ltd., would have a policy which complied with Section 35 of the Road Traffic Act, 1930, and under which 'Welling would be covered, so tbat under Section 10 of the Road Traffic Act of 1934 Mrs. Sutch would have the right to recover directly from the insurers.
The provisions of Section 35 of the Act were that " it shall not be lawful for any person to use, or permit any other person to use, a motor vehicle on a road unless there is in force .in relation to the user of the vehicle by that person, or other person, as the case may be, such a policy of insurance, or such security in respect of third-party risks as complies with the requirements of this part of the Act."
The defendant said that, even if a policy had been given which, in 'terms, . . covered. Welling, the driver, as a person who was being permitted to use the vehicle, it would cover him only if .he were driving in circumstances which made his employers liable.
If the defendant was right, then Section 35 of the Act meant nothing at all. What was the point of insisting upon the insurance of a third person to drive a vehicle if the insurance was only to cover him if he were driving in such circumstances that his employers would be liable? His Lordship did not think such a limited interpretation was intended by the legislature. It was clear that Welling was a person "permitted' to drive"; the policy must be one in relation to the user of the 'vehicle by that person Welling, and there was no limitation on the word " user " to limit it to use in accordance with the authority given by the employers. __ The policy must insure Welling in respect of any liability incurred by him in respect of the death or injury of any person, caused by, or arising out of, the use of the vehicle on a road.
It seemed to his Lordship that the meaning of the Section was beyond doubt, and Mrs. Sutch was,entitled to recover. Even assuming that the plaintiff was bound by the decision that only Welling was liable, she was still • entitled to recover against the insurers, and, therefore, he gave Mrs. Sutch judgment against the defendant for one-eleventh—Mr. Burns's share—of the amount of the judgment.
A stay of execution was granted in respect of proceedings against the remaining underwriters, bound by the present decision.