Ally McCoist found not liable for damages arising from son’s car accident in uninsured vehicle

About this case:

• Citation:
  [2023] CSOH 62
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Menzies

Aviva Insurance Ltd sought to argue that Ally McCoist had not done enough to stop his son Argyll from driving the vehicle, having left the car and the keys at a property in which he resided along with his mother Alison. While defences were withdrawn by Argyll, Mr McCoist maintained that he had explicitly forbidden his son from using the vehicle.

The case was heard by Lord Menzies in the Outer House of the Court of Session. Ellis KC appeared for the pursuers and Cowan, advocate, for the first defender. The second defender did not make an appearance.

Aware he was not insured

The vehicle involved in the accident was an Audi A1 that Mr McCoist had purchased for his son, the second defender, in 2016. Although the car was bought for Argyll’s use, Mr McCoist was the registered owner and keeper. At this time, he had divorced from his first wife and the car was kept at the Bishopton address occupied by Argyll and his mother. Argyll was a named driver on the original policy taken out with More Than Insurance, however that policy was cancelled in March 2016 after the black box fitted to the car recorded him driving at 65mph in a 30mph zone.

In July 2016 the first defender took out insurance with the pursuer for several vehicles, including the Audi. Argyll continued to drive the car uninsured, despite his father telling him he was forbidden to do so. On the morning of 3 December 2016, the Audi collided with a pedestrian, Stephan Murdoch, causing him serious injury. Argyll later pled guilty at Paisley Sheriff Court to causing severe injury by dangerous driving and driving without insurance.

On 12 February 2020 Mr Murdoch obtained decree against Argyll for damages of £200,000, which was paid by the pursuers together with £44,000 in interest and expenses per sections 145 and 151(2) of the Road Traffic Act 1988. The pursuers subsequently sought recovery of that sum from the defenders. On 2 May 2023, a minute was lodged stating to the court that Argyll McCoist consented to decree being granted against him. However, the question remained as to whether the first defender had caused or permitted the use of the vehicle which gave rise to the liability.

Counsel for the pursuers submitted that the court should reject the first defender’s evidence that he had told Argyll not to use the car, as it was not supported by any other evidence and it seemed unlikely that his ex-wife would have allowed Argyll to drive the car if she thought it was not permitted. Where the car had been left at his house with the keys available to him, the likelihood of the then 18-year-old Argyll attempting to use the car was high.

For Mr McCoist it was submitted that “causing” and “permitting” use were two separate concepts. A failure to take steps to prevent the use of a vehicle could only constitute permission if it could be inferred from the failure that the other person was allowed to use the vehicle. Such inference cannot be drawn in the present case. As far as Mr McCoist knew at the time, Argyll did not have the keys and was aware he was not insured to drive the car.

Express prohibition

In his decision, Lord Menzies said of Mr McCoist’s evidence: “I found Mr McCoist to be a credible and generally reliable witness, who was doing his best to assist the court. He gave his evidence in a clear and restrained manner, without exaggeration, and I was impressed by his demeanour as a witness.”

He continued: “After six years, I do not find it surprising that Mr McCoist was not able to say precisely how many times he told Argyll not to drive the car. I am satisfied that he did tell Argyll not to drive the car, he said this clearly and in no uncertain terms, and he told him this more than once.”

Addressing the issue of liability, Lord Menzies said: “Having found that Mr McCoist did indeed tell Argyll on several occasions from and after July 2016 that he must not drive the car, and in the absence of any evidence that he expressly withdrew this prohibition or that there were circumstances from which it can be inferred that it no longer had force, it would be surprising if the court held that Mr McCoist had permitted Argyll’s use of the vehicle.”

He went on to say: “It is important to remember that the statutory liability under section 151(8) of the 1988 Act arises only if the insured caused or permitted the use of the vehicle which gave rise to the liability. Liability does not arise if the insured simply failed to ensure that another person did not drive the vehicle, or even that the insured failed to take all reasonable steps to prevent another person driving the vehicle.”

Lord Menzies concluded: “If the test for liability had been that Mr McCoist failed to take all reasonable steps to see to it that Argyll did not drive the car, I consider that he would have failed that test. But that is not the test. I can find nothing in the evidence which comes up to the statutory test of permitting. Nothing which happened between July 2016 and December 2016 is enough to give rise to the inference that Mr McCoist had withdrawn or relaxed his repeated express prohibition on Argyll driving the car.”

Accordingly, decree for payment of the sum of £244,000 was granted against the second defender only, with the first defender assoilzied from the conclusions of the summons.