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RTA victims injured abroad

September 26th, 2016

In Moreno v the Motor Insurers' Bureau [2016] UKSC, the UK Supreme Court has finally settled a long-running dispute on the meaning and effect of the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 (the 2003 regulations).

The Court of Appeal had previously decided in Jacobs v Motor Insurers' Bureau [2010] EWCA Civ 1208 and Bloy v Motor Insurers' Bureau [2013] EWCA Civ 1543 that under those regulations a UK claimant injured abroad by a foreign uninsured motorist could recover damages to be assessed under English law from the Motor Insurers' Bureau.

In Moreno, the claimant was a UK resident who on 17 May 2011 was on holiday in Greece. Walking along the verge of a road, she was struck from behind by a vehicle registered in Greece driven by an uninsured driver. She suffered very serious injuries, including the loss of her right leg, requiring her to use a wheelchair. The case had originally come before the High Court, where the judge decided that he was bound by the decisions in Jacobs and Bloy. However, he granted a certificate to the MIB to undertake a 'leapfrog' appeal pursuant to section 12 of the Administration of Justice Act 1969.

Lord Mance (with whom the other members of the Supreme Court agreed) said that the claimant's claim was pursued against the UK MIB as a result of a series of Council Directives of the European Union culminating in a codified Sixth Directive 2009/103/EC of 16 September 2009. These directives were in part transposed into English law by the 2003 regulations. The issue was whether the scope of the UK MIB's liability to the claimant was to be measured according to English or Greek law, as Greek law would yield a lesser measure of compensation than English law.

Lord Mance went over the text of the six Motor Insurance Directives, including the Fourth Motor Insurance Directive, as a result of which the 2003 regulations were enacted. According to the Court of Appeal, regulations 12(3), (4) and 13(2) of the 2003 regulations had the effect of compelling the MIB to deal with accidents occurring abroad as if they had occurred in Great Britain.

This meant that a victim could recover more from the compensation body in their own country than they could have recovered from the driver responsible for the accident or the driver's insurer. This might seem anomalous, but the Court of Appeal had said that article 10(4) of the Fourth Directive contemplated the existence of such arrangements, since article 10(4) provided: 'Member states may, in accordance with the treaty, maintain or bring into force provisions which are more favourable to the injured party than the provisions necessary to comply with this directive.'

Lord Mance said that the Court of Appeal had overlooked the possibility that the level of compensation under English law could actually be less favourable than that provided under the law of the state of the accident. The Court of Appeal had also wrongly regarded the provision of Regulation (EC) No 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), in force from 11 January 2009, as irrelevant.

When construing the 2003 regulations, the starting point was that they should, so far as possible, be interpreted in a sense which was not in any way inconsistent with the directives: Marleasing SA v La Comercial Internacional de Alimentación SA (Case C-106/89) [1990] ECR I-4135. It was, however, open to the domestic legislator to introduce provisions 'more favourable' to the injured party.

Lord Mance said that it was unlikely that the UK legislator would do so by including a provision that could in some circumstances also prove less favourable to the injured party, and so put the UK in breach of the directives. There was no suggestion in the 2003 regulations or their explanatory note or elsewhere of any intention on the part of the domestic legislator to do anything other than faithfully implement and give effect to the directives.

The Court of Appeal in Jacobs had looked too narrowly at the scheme created and represented by the directives. These gave injured parties, inter alia, a direct right of action against any insurer (article 3), as well as other rights. However, the inference was that, to whichever special provision of the Fourth Directive the victim of a motor accident might have to have recourse, the compensation to which he or she was entitled was and remained the same.

In the case of a claim against the driver responsible or his or her insurer or the guarantee fund of the state of the accident, such compensation would normally be measured in and under the law of the state of the accident. The directives did not leave it to individual member states to provide for compensation in accordance with any law that such states might choose.

On the contrary, they proceeded on the basis that a victim's entitlement to compensation would be measured on a consistent basis, by reference to the law of the state of the accident, whichever of the routes to recovery provided by the directives he or she invoked.

Consequently, the decisions in Jacobs and Bloy would be overruled. The scope of the UK MIB's liability to Ms Moreno was to be determined in accordance with the law of Greece. Moreover, since the position as a matter of EU law was clear, there was no need to contemplate a reference to the European Court of Justice.

Lord Mance commented that with British exit from the union, the 2003 regulations would be one of the many current arrangements requiring thought. Over the years, the Motor Insurance Directives have strengthened the protection of victims of motor accidents, particularly those who are injured by uninsured and untraced drivers. Brexit now puts that protection in some doubt.

Source: http://www.lawgazette.co.uk/law/legal-updates/rta-victims-injured-abroad/5057822.article - Malcolm Johnson

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Mr P. D. Alker LL.B (Hons)
Senior Litigator

Regulated by:

Firm ID: Alkers Solicitors
SRA Registration No.: 329692