Court considers definition of racing for purposes of policy interpretation
The recently available judgment in the case of Sian Pinn and another -v- Jia Guo and others (Swansea County Court, 11 April 2014) provides useful guidance for insurers when considering the definition of the term ‘racing’ when considering the scope of cover provided pursuant to a policy of motor insurance.
The case arose out of an accident in January 2011.
The First and Third Defendants (who were insured by the Second and Fourth Defendants, respectively) were the drivers of vehicles which had attended a ‘car cruise’ event in Port Talbot. The event took place on a deserted stretch of road adjacent to a number of factories.
The First and Third Defendants took up position at one end of the road, and an individual acted as a starter. When the starter had signalled, both vehicles accelerated away quickly.
The Claimants were spectators on the pavement at the side of the road who intended to film the event.
The First Defendant lost control of the vehicle, struck the kerb and collided with the Claimants. Both the First and Third Defendants were convicted of driving offences. Subject to defences of volenti non fit injuria, ex turpi causa non oritur actio and arguments of contributory negligence against the Claimants, it was accepted that the First and Third Defendants were likely to be jointly and severally liable to the Claimants.
The Second Defendant successfully obtained a declaration pursuant to section 152(2) of the Road Traffic Act 1988, thus avoiding the policy from inception, and limiting its involvement to that of Article 75 insurer.
The Fourth Defendant contended that its policy contained an exclusion from cover ‘while the automobile is used for commercial travelling, racing, racing, pacemaking, speed testing or the carriage of goods or samples in connection with any trade or business…’
It was accordingly argued that, as the vehicle was being used for ‘racing’ at the time of the accident, the Fourth Defendant was under no obligation to meet the claim, either as contractual insurer or pursuant to the terms of the Road Traffic Act 1988, and would thus also be limited to Article 75 status.
In giving judgment, HHJ Vosper QC was obliged to consider the definition of the term ‘racing’ when determining whether the use of the vehicle at the time of the accident fell within the scope of the Fourth Defendant’s policy.
Whilst the judge accepted that ‘racing’ may have different meanings, in interpreting the policy it was necessary to exclude activities which were plainly intended to be covered by the policy.
For example, he considered that ‘“racing home” is not, in my judgment, racing at all. The word is being used in that context as a synonym for rushing or hurrying; there is no competitive element…’
He also considered the example of two drivers accelerating away from traffic lights: ‘Pulling away from traffic lights is more difficult. There may be a competitive element but it would depend on the facts of the case. Probably the absence of a clear course or finishing point would lead a court to conclude that this is not racing within the terms of the policy. It is simply the sort of driving in which many drivers engage. The point does not fall for determination in this case and will in any event depend upon the particular circumstances if it does arise’.
When considering the instant case, HHJ Vosper QC commented as follows: ‘The facts of the present case which are relevant are these. This was an arranged meeting. The First and Third defendants came from different parts of Wales. They lined up at the end of a long straight, deserted stretch of road in an industrial area at night. Someone acted as a starter and they then both accelerated away hard. The element of competition in those facts is obvious.’
He concluded that, considering the terms of the policy as an ordinary man might do, the parties would reasonably have understood that the policy did not cover the sort of competitive driving that was engaged in on the night of the accident, and accordingly the driving of the Third Defendant fell outside the scope of the insurance cover.
This judgment provides helpful clarification for insurers seeking to rely on exclusion clauses relating to racing. This is often relevant if looking to avoid liability under section 151 of the Road Traffic Act 1988.
Whilst the application to any particular scenario will be fact sensitive, the case does outline that an element of competitive driving is required. Although formal ‘racing’ is perhaps easy to identify, other spontaneously ‘competitive’ driving between road users will be more difficult to classify as ‘racing’.
Though the judge’s comments are, strictly, obiter, HHJ Vosper QC does indicate that ‘the absence of a clear course or finishing point’ is likely to lead to the conclusion that driving does not constitute racing. This is likely to make it more difficult for insurers seeking to rely on a ‘racing’ exclusion where there is simply spontaneously competitive driving between road users.
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