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predecessor, the 1934 RTA. However, it is clear from recent cases, that the exclusion clause provisions within current legislation are the ongoing subject of debate. The list of prohibited exclusion clauses in Section 148 RTA 1988 is identical to those found in Section 12 of the 1934 Act, although an additional list of prohibited exclusion clauses can be found in Section 151 RTA.
It is, however, questioned in the absence of an exhaustive list from the legislature, whether these lists of prohibited exclusion clauses are exhaustive, and the extent to which other exclusion clauses are permitted under the RTA 1988. This subject has only been dealt with on few occasions due to the role of the UK MIB, who frequently pay third party claims when an exclusion clause is breached.190
In Part I, this Chapter will examine the interpretation of each of the prohibited exclusion clauses contained within the RTA 1988. Part II of this Chapter will then examine whether the exclusion clauses in Sections 148 and 151 are exhaustive. This will be through examining lines of case law which have examined both the
RTA itself but also the conflicting policies behind the Act. Finally, Part III of this
Chapter will assess potentially permitted exclusion clauses by examining dictum which have permitted certain exclusion clauses.
Part I: Prohibited Exclusion clauses under the Road Traffic Act
1988
As stated above on this page the prohibited exclusion clauses contained within the original RTA 1934 have not changed, and are currently contained within the RTA
1988. These are: the age or physical or mental condition of persons driving the
vehicle,191 the condition of the vehicle,192 the number of persons that the vehicle carries,193 the weight or physical characteristics of the goods that the vehicle carries,194 the time at which or the areas within which the vehicle is used,195 the horsepower or cylinder capacity or value of the vehicle,196 the carrying on the vehicle of any particular apparatus,197 or the carrying on the vehicle of any particular means of identification, other than any means of identification required to be carried by or under the Vehicle Excise and Registration Act 1994.198
In addition, exclusion clauses relating to liability due to action that the insured should or should not have taken after the happening of the accident, which were restricted under the 1930 RTA,199 remain invalid under Section 148 (5) RTA.200 Moreover, the insurer can continue to recover from the insured for any damages paid due to breach of an exclusion under Section 151 (8) RTA.201 Prohibited clauses within Section 148 have rarely been examined by the courts or academics because of the MIB acting as last resort. Consequently, in interpreting these exclusion clauses, early case law will be relied upon alongside the Shawcross ‘Law of Motor Insurance’ editions, Hughes’ 1937 Book,202 and Professor Merkin’s recent ‘Law of Motor Insurance’ edition.
Section 148
The Age, Physical or Mental Condition of Persons Driving
Insurers must not utilise clauses relating to the age of the person driving the vehicle, even if the driver is below the legal age to drive. The age prohibition was introduced since it was one of the most criticised exclusion clauses, especially when used in relation to drivers under the age of 21, who were often restricted from driving within policies due to concerns about their level of skill or experience.203
191 Section 148 (2) (a) RTA. 192 Section 148 (2) (b) RTA. 193 Section 148 (2) (c) RTA. 194 Section 148 (2) (d) RTA. 195 Section 148 (2) (e) RTA. 196 Section 148 (2) (f) RTA. 197 Section 148 (2) (g) RTA. 198 Section 148 (2) (h) RTA. 199 Section 38.
200 A discussion of these can be found in the previous Chapter on pages 37-39.
201 This interpretation of this clause can be found in the next Chapter on pages 139-140. 202 See Hughes H (n 100).
Consequently, the provision prohibits the insurer from using this clause and restrictions where the driver incorrectly states their age on a proposal form.204 Attempts have been made to extend this condition to all drivers irrespective of their age, physical or mental condition, however this was rejected recently in Sahin v
Harvard205 (henceforth ‘Sahin’) by Longmore LJ who stated that this was ‘obviously wrong’.206
Although it has not been interpreted as all encompassing, the courts have interpreted the phrase ‘mental condition’ widely. It is apparent that this would almost certainly involve clauses in relation to the driver being intoxicated through either drink or drugs. In Louden v British Merchants Insurance Co,207 when examining whether an intoxication clause could be used against a first party, the Court reaffirmed previous case law208 that intoxication ‘disturbs the balance of a man's mind’.209 This was relied upon in the Singaporean case of Tan Ryan v Lua
Ming Feng Alvin (henceforth ‘Tan Ryan’).210 This is highly persuasive authority, as the Singaporean Motor Vehicles (Third Party Risks and Compensation) Act
1960 is based on the English RTA 1988 with the same prohibited exclusion
clauses. The Court in Tan Ryan held that intoxication would clearly affect the drivers ‘mental condition’ and comparably that the, ‘contamination of a person’s bloodstream by a foreign substance (such as alcohol) seemed …to be eminently a matter of that person’s “physical… condition”’.211 The Court further held that the driver’s intoxication falls alongside the other exclusion clauses most commonly used by insurers and therefore were intended to fall within the prohibited exclusion clauses.212
An argument reinforcing the restriction of driving in relation to intoxicated drivers is that they are expressly prohibited in EU Law under Article 13 of the Sixth
204 See Merchants and Manufacturers v Hunt and Thorne [1941] K.B. 295. 205 Sahin v Harvard [2016] EWCA Civ 1202.
206 Ibid, [22].
207 [1961] 1 W.L.R. 798.
208 Mair v Railway Passengers Assurance Company Ltd (1877) 37 LT 356. 209 Louden (n 210), 157.
210 Tan Ryan v Lua Ming Feng Alvin [2011] SGHC 151. 211 Ibid, [41].
Directive,213 due to their consistent use against third parties throughout the EU.214 The UK have used Section 148 (2) to show compliance with that provision. Consequently, there is little doubt that exclusion clauses relating to intoxicated drivers are prohibited.
However, in National Farmers’ Union Mutual Insurance Society Ltd v
Dawson,215 the High Court held that this provision does not extend to a condition requiring the insured to employ only steady and sober drivers. Viscount Caldecote C.J. noted that, at most, the exclusion clause relating to employing drivers who are sober purports to restrict the insurance from applying to cases where the insured has not used all care and diligence, to do the things specified in the condition. His Lordship stated that is very different from a restriction which refers to the physical or mental condition of persons driving the vehicle.
Moreover, mental condition would also include clauses involving those who are mentally incapable, such as clauses highlighted in the Cassel Committee consultation, involving those who had entered an ‘insane asylum’. Although it would be improbable that this clause would ever be utilised today. Similarly, with those who are physically unable or impaired to drive due to a disability.
The Condition of the Vehicle
As stated in the previous Chapter on page 44, significant concerns were raised about the use of exclusion clauses involving the condition of the vehicle, especially when vehicle condition had not contributed to the accident. Consequently, Section
148 (3) RTA 1988 prohibits exclusion clauses in relation to vehicle condition and
roadworthiness, even where poor vehicle condition was partially or wholly responsible for the accident. Generally, the exclusion clause used is that, ‘the vehicle should be maintained in a roadworthy condition’ but the prohibition also extends to clauses involving maintaining the vehicle in an ‘efficient’ or ‘safe’ condition. This, however, does not extend to clauses in relation to the age, make,
213 Also see Bernáldez [1996] 2 C.M.L.R. 889 from the ECJ which will be discussed on pages 118- 124.
214 Further see the case of Candolin v VahinkovakuutuMoTakeyhtio Pohjola (C-537/03) [2005] E.C.R. I-5745 where compensation in Finland was denied to the passengers due to intoxication.
type or carrying capacity of the vehicle as this would clearly go beyond the intention of the provision.216
Moreover, clauses relating to the roadworthiness of the user of the vehicle, such as through inexperience, do not fall within this prohibition.217 Likewise, use of the vehicle without lights at night, due to the fault of the road user, is also not prohibited, as well as clauses relating to the weight of the vehicle.218 It is unclear whether overloading of a vehicle would fall under the condition of the vehicle. For example,
Clarke v National Insurance and Guarantee Corp,219 held that carrying too many passengers made the vehicle unroadworthy. In contrast, A P Salmon Contractors
Ltd v Monksfield220 (henceforth ‘Salmon’) held that faulty loading did not make the vehicle unroadworthy, the vehicle itself was not faulty. This it is submitted, is a clear distinction to be made.
Although overloading has only been discussed in determining if an exclusion clause had been breached, this can also determine whether an exclusion clause is prohibited. It is submitted that overloading of a vehicle would fall within this prohibited exclusion clause, as this has the potential to make a vehicle unroadworthy. In Salmon,221 it was not the overloading but rather method of loading that caused the accident. Whereas in Clarke,222 the overloading caused the vehicle to be unroadworthy. It is clear though, that overloading could also fall within the prohibited exclusion clause in Sections 148 (c) in relation to passengers and Section 148 (d) in relation to goods, showing that these prohibitions do often overlap.
It is notable that the prohibition of the roadworthiness exclusion clause satisfies one of the prohibited exclusion requirements in Article 13 of the Sixth Directive which prohibits insurers from using exclusion clauses relating to the safety of the vehicle.223
216 Shawcross (n 74).
217 This was argued and dismissed in Rendlesham v Dunne [1964] 1 Lloyd’s Rep. 192. 218 Section 148 (d) 1988.
219 Clarke v National Insurance and Guarantee Corp [1964] 1 Q.B. 199. 220 Monksfield v Vehicle and General Insurance Co [1971] 1 Lloyd's Rep. 139. 221 Ibid.
222 Clarke (n 222).
223 Article 13 (c) Sixth Consolidated Motor Insurance Directive 2009/103/EC of the European Parliament and Of the Council of 16 September 2009 relating to insurance against civil liability in
The Number of Persons that the Vehicle Carries
This provision prevents the use of exclusion clauses in relation to the number of persons being carried in or on the vehicle. Although this was seemingly a prevalent exclusion clause used by insurers’ pre-1934, there is little evidence of use or interpretation of this exclusion clause through case law. A clause of this type was examined in Bright v Ashfold224 which involved a clause prohibiting a motor cycle from carrying a pillion passenger; the case was decided before the introduction of the RTA 1934, and it is submitted, would almost certainly fall within this prohibition. It is important to note that this clause only refers to the number of passengers and does not include the weight of the vehicle due to passenger overloading which is highlighted in the judgment of Lord Denning in Houghton v Trafalgar Insurance
Co.225 Consequently, a ‘Houghton’ clause can be used under the RTA 1988 as far as it applies to the carrying of people but not when it applies to goods (as shown directly below).226
The weight or physical characteristics of the goods that the
vehicle carries
This clause prevents the insurer from relying on policy terms related to the weight of the vehicle or the physical characteristics of the goods which are carried by the vehicle. This, it seems, does not cover the quantity of goods carried, but rather their weight. For example, as noted by Shawcross, a clause which limited a milk lorry to a certain number of milk churns would continue to be valid even if this went beyond the lorry’s capacity.227 It is clear, however, that this prohibited exclusion clause is rather limited in its’ effect. For example, in Jones v Welsh Insurance Corporation
Limited,228 an insurer utilised an exclusion clause limiting the use of the vehicle to ‘social, domestic or pleasure purposes’, although the insured’s brother used the vehicle to carry sheep as part of his business. The plaintiff argued that this exclusion clause could not be used under Section 12 (2) (d) because the exclusion related to the physical characteristics of the goods. Goddard J rejected this
respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability.
224 Bright (n 79).
225 Houghton v Trafalgar Insurance Co Ltd [1954] 1 Q.B. 247. 226 Robert Merkin Colinvaux (n 3), 1395
227 Shawcross (n 74), 321. 228 [1937] 4 All E.R. 149.
argument and stated that in this case, the question was not as to the nature of the goods or their characteristics, but rather the nature of the journey. For example, whether the vehicle was used for domestic purposes or whether the goods carried, whatever their nature, were carried in connection with business. This, it is submitted, is an important distinction, as exclusion clauses involving, ‘social, domestic and pleasure purposes’ are used in the majority of policies to define the risk.
By essentially equating the characteristics of goods with the purpose of travel, insurers would be deprived of using an exclusion clause which they deem essential to limit risk. It is submitted that Judge Goddard is correct in this distinction, as the exclusion clause was not based on the physical characteristics of the goods, but rather that they were carried for a specific purpose, the insurer would not have repudiated liability if the goods were carried for social purposes.
Time and Area of Use
This clause refers to the time and area of use; including prohibiting exclusion clauses relating to the use of a vehicle within certain hours. An example can be found in Farr v Motor Traders Mutual Insurance,229 where a taxi cab could not be driven more than once in 24 hours. The exclusion clause further prohibits clauses relating to use of a vehicle on certain days or within certain areas and geographical locations such as in Palmer v Cornhill Insurance Co Ltd.230
The Horsepower or Cylinder Capacity or Value of the Vehicle
Shawcross noted that the introduction of a prohibited exclusion clause in the RTA
1934 in relation to the horsepower or cylinder capacity (added by Finance (no.2) Act 1945, Section 5 (2) (c)) of the vehicle seems to doubt that the list of prohibited
exclusion clauses in Section 12 were limited to exclusion clauses, and did not include misrepresentation or non-disclosure. The main reference to the horse power and value of the vehicle are in the proposal form and not the policy itself. This, therefore, is still a valid observation to make presently, as proposal forms usually ask for this data and it is not included within the actual terms of the policy.
229 Farr (n 112).
This provision, however, is rather limited, as although it touches some of the major defining characteristics of the vehicle, it does not touch other significant characteristics which could increase risk. These include the age or model of the vehicle or its alterations.
The Carrying on the Vehicle of any Particular Apparatus
This prohibited clause relates to the carrying of certain apparatus which is either prohibited or necessary under the policy. Prohibited apparatus can include substances such as the carrying of any radioactive or potentially explosive material on the vehicle; this would also apply to bulk transportation of liquefied petroleum, gasoline or any inflammable liquid. It can also include, apparatus carried for a purpose. It is submitted, however, that this does not include apparatus which substantially changes the character of the vehicle such as the adding of a side-car to the vehicle or making it amphibious, as this does not restrict the insurance but rather defines it.231 Moreover, it is evident that this prohibition does not apply to clauses which restrict the carrying of goods completely.232 Finally, Hector Hughes notes that a borderline case is where a clause is found in a private motor car policy in the description of use, which prohibits, ‘carriage of goods or samples in connection with any trade or business’233. This prohibits carriage of goods of a description and does not prevent the carrying of goods in general. Consequently, it seems to refer to the ‘characteristics of goods’ albeit the circumstantial characteristics, as the same goods could be carried with different vehicle uses. Accordingly, Hughes submits that this is not an exclusion clause which falls under the prohibition.234
Necessary apparatus can include the carrying of fire extinguishers, mirrors, and headlights, although it is unlikely to find exclusion clause in a private motor vehicle for fire extinguishers’, and this provision rather relates so some vehicles carrying potentially flammable material.
231 See Shawcross (n 74), 324.
232 See Piddington v Co-operative Insurance Co Ltd [1934] 2 K.B.236 cited in Hughes H (n 95), 356. 233 Hughes H (n 100), 356.
Carrying of Identification
This provision prohibits the insurer from utilising an exclusion clause relating to the means of identification other than identification required to be carried by or under the Vehicles Excise and Registration Act (VERA) 1994. As it is no longer a legal requirement to carry a tax disk (VERA), it seems that nearly all exclusion clauses relating to carrying identification are invalid against third parties. Moreover, it is unlikely that such exclusion clause would ever be used currently as there is no legal requirement to carry a licence or an insurance certificate.
Liability Required to be Covered
It is finally important to note that the eight named prohibited exclusion clauses in
Section 148 only apply in relation to ‘Liabilities which are required to be covered
by a policy in Section 145 RTA’. Section 145 (3) (a) requires all liability to be covered, ‘in respect of the death of or bodily injury to any person or damage to property, caused by, or arising out of, the use of a vehicle on a road’. Consequently, if the vehicle is being used outside of the requirements for compulsory insurance within Section 145, then a prohibited exclusion clause within Section 148 could be used against a third party.
There are certain areas where the vehicle is being used outside of Section 145. For example, in relation to the term ‘vehicle’ which is defined within Section 185
(1) RTA 1988, ‘a mechanically propelled vehicle intended or adapted for use on
roads (and other public places)’. This definition therefore excludes vehicles which are only intended to be used on private land.
Similarly, the use of any vehicle on private land does not require insurance coverage according to the RTA 1988, insurance is only required for roads or ‘other public places’ (Section 143 (1) (a)). Public places are defined as places in which the public have access, which is largely unrestricted, and open to the public in