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 Who is liable for an accident – car owner or driver?
Personal injury claims

Who is liable for an accident – car owner or driver?

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In most road traffic accident claims, the at-fault driver can be identified and a claim for damages will be directed towards them and/or their insurer. However, what happens when the driver cannot be identified? Are there any circumstances in which a claim can be directed against the owner of the vehicle?

The general rule is that a driver is responsible for their own driving but there are circumstances that will lead to the owner of the vehicle being held jointly liable for the negligent driving of another person. The important consideration is the level of control exercised by the owner over the driver at the time of the incident giving rise to the liability.

The courts have held that the owner of a vehicle was jointly liable for the actions of a negligent driver if the driver was acting on the specific instruction of the owner, as the servant or agent of the owner; in circumstances where the owner was a passenger in the vehicle and retained a right and a duty to control the manner in which the vehicle was driven; and in circumstances where the driver of an uninsured vehicle fails to report an accident, the owner is presumed to be the driver or to have permitted another person to drive without insurance. Conversely, when the owner of a car lends it to someone else and the driver is driving solely for their own purposes, the courts have held that the owner was not liable for the driver’s negligence in those circumstances.

Whether a claim can be directed against the owner of the car rather than the driver will depend on the specific circumstances and the evidence in each case.

This issue was considered in the Court of Session recently in the case of Aviva Insurance Limited v Alistair McCoist and Another [2023] CSOH 62. The case arose following a road traffic accident in which a pedestrian was injured as he crossed a road. The driver of the vehicle who collided with the pedestrian was driving without insurance. However, there was a policy of insurance over the vehicle held by the driver’s father. After paying substantial damages and legal expenses to the pedestrian, the insurer of the vehicle raised an action to recover their loss from their policy holder (the vehicle owner) and the driver on a joint and several basis.

The insurer raised an action against their insured, M, and his son, X, under s.151(8) of the Road Traffic Act 1988. The insurer sought to recover £244,000.  M’s position was that he had told X that he was not permitted to drive the vehicle. The court held that M could not be held jointly and severally liable for repayment of the sum paid by the insurer to the injured pedestrian.

Section 151(8) of the 1988 Act provides a mechanism for an insurer to recover their loss from their insured in circumstances where their insured caused or permitted an uninsured driver to use the vehicle. The insurer failed to establish that M caused or permitted his son to use the vehicle. Lord Menzies highlighted that liability does not arise if the insured simply failed to ensure that another person did not drive the vehicle, or even if the insured failed to take all reasonable steps to prevent another person driving the vehicle.

It would be fair to say that establishing liability against the owner of a vehicle for a driver’s negligence is not the usual route to recovery but could provide an alternative route of recovery in some cases.

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