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

The general rule is that a driver is responsible for their own driving but there are circumstances that may lead to the owner of the vehicle being held jointly liable for the negligent driving of another person. This is what an insurer asked the court to do here.

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, and his son, under s.151(8) of the Road Traffic Act 1988. The insurer sought to recover £244,000. The insured’s position was that he had told his son that he was not permitted to drive the vehicle. The court held that the insured 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 their insured 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.