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Kaj Dalberg Anderson v. Mohammed Hameed and Esure Services Limited [2010] CSOH 99


The pursuer sustained injuries in the early hours of 29 December 2006 when a car driven by the defender, in which the pursuer was a back seat passenger, struck a tree at Stewarton Road, Newton Mearns, Glasgow. At the time of the accident, the defender was 16, and was driving a car belonging to his parents without their permission or knowledge. At the time, the defender had neither insurance nor a driving licence. Quantum having been agreed, the issue for the court was to determine the liability of any parties to make reparation to the pursuer. For the defender it was argued that the pursuer and defender were engaged in a joint criminal activity with the consequence that the law imposed no liability on the defender. For the party minuters it was argued that the insurers were not liable under section 151 of the Road Traffic Act 1988 to satisfy any award of damages in favour of the pursuer because their liability was an "excluded liability" under section 151(4), the pursuer having known or having had reason to believe that the car was stolen or unlawfully taken.

The court heard evidence from a number of witnesses, including both the pursuer and defender. The court noted that the accounts of defender and pursuer in relation to the events leading up to the accident varied to a great extent. The court noted in its judgment, that it did not consider all witnesses to have given a truthful account of events in their evidence. The court found that the only truthful and credible account of events was given by the defender, who presented a detailed and convincing narrative, which stood up to cross-examination. The court found the defender's evidence that, in order to his impress his friends, he had told the pursuer and other passengers that he had “stolen” his parents' car, to be particularly convincing. The court therefore found that the pursuer had known the car had been taken without the consent of the owner.

Accordingly, the Outer House determined that the pursuer knew, when he allowed himself to be carried in the car, that it had been taken without the consent of its owner, and that he could have been charged and convicted of an offence under section 178(1) of the Road Traffic Act 1988. The court therefore found that the pursuer was participating in a joint criminal activity with the defender and that he was accordingly not entitled to recover damages from the defender for loss and injury as a result of the defender's negligent act. Decree of absolvitor granted.