An English court has reaffirmed that, where a claimant is not covered under a road accident fund law if at the time they ‘knew or ought to have known’ that the vehicle was uninsured, negligent lack of knowledge is not enough. The passenger must conclude from available knowledge that the driver might not be insured and deliberately refrain from asking questions lest the suspicions are confirmed.

The three claimants had been passengers in a vehicle driven by a man who had previously been jailed for driving offences and owned cars he could not afford. It was suggested they should have enquired regarding his insurance. The court held that a mere failure to make enquiries as to insurance, however negligent or careless it may be in the circumstances, is not enough to bring the exception into play. Passengers must have information from which they realise that the driver might well not be insured but they deliberately refrain from asking questions. This was described as a ‘deliberate closing of the mind, with the passenger preferring not to know’.

A similar decision is likely to be made in South Africa if words like ‘knew’ or ‘ought to have known’ are used in an insurance policy or other contract. The Companies Act has a statutory test for imputed knowledge which could unfortunately include negligence because it uses the phrase ‘reasonably ought to have known’.

The case is Whyatt v Powell.