Another country

One of the issues that used to arise from time to is whether the Motor Insurers Bureau was liable to compensate a claimant who was injured by a motor vehicle, in an accident occurring neither on a road nor in a public place. Since the decision in Motor Insurers’ Bureau v Michael Lewis (A protected party, by his litigation friend Janet Lewis)[2019] EWCA Civ 909 it has been clear that there is an obligation on the part of the Bureau under European Union law to compensate victims of accidents on private land.

It is reasonable to say that this conclusion does not sit comfortably with the Bureau, although their petition to appeal the decision of the Court of Appeal to the Supreme Court was refused permission. There may be some limited opportunity to distinguish Lewis but the thrust of the ratio means this will not be at the expense of an injured party.

The facts of the case were as follows:

2. On 9 June 2013 the claimant, then aged 67, was walking on private land in Lincolnshire. Dennis Tindale (who was the first defendant in the proceedings before Soole J, the MIB being the second defendant and the Secretary of State for Transport the third defendant) was a local farmer. He erroneously assumed that the claimant had been up to no good in the vicinity of his farm premises. He pursued the claimant and his friends, driving a 4×4 Nissan Terrano, which was not insured. He drove the vehicle along a public road before accessing a public footpath along which the claimant and his friends had walked, driving down an embankment on which one of the footpaths was situated, through a barbed wire fence, into a field. He drove across the field around a marshy area and then into collision with the claimant, causing him serious injury. At the appeal hearing, we were informed that Mr Tindale was subsequently prosecuted for causing grievous bodily harm with intent contrary to section 18 of the Offences against the Person Act 1861, but acquitted at trial.

The Bureau’s defence was simple:

By Order dated 9 June 2017, Mr Tindale was debarred from defending the claim. The MIB did not dispute that Mr Tindale was liable for the accident, but contended that it had no contingent liability to the claimant pursuant to the Uninsured Drivers Agreement (“UDA”) 1999 because the accident and injuries were not caused by or arising out of the use of the vehicle on a road or other public place under section 145 of the Road Traffic Act 1988 (hereafter “the RTA”).

However European Union law has long had a role to play in governing the scope of domestic insurance provision and successive EU Directives and decisions of the European Court of Justice have expanded the obligations of member states to provide remedies to the victims of uninsured motorists. A seminal decision is that of VNUK and in a sense the Lewis case is both a lineal descendant and the inevitable consequence of that decision in the European Court.

63. The UK government has failed to fulfil its obligation under Article 3 of the 2009 Directive to ensure that civil liability in respect of the use of motor vehicles on private land is the subject of a scheme of compulsory motor insurance. That the government is under that obligation in respect of the use of vehicles on private land cannot be doubted in view of the judgment of the CJEU in Vnuk and the subsequent CJEU judgments in Andrade v Proença Salvador (Case C-514/16) [2018] 4 WLR 75 at [36] and Nunez Torreiro at [28] and [30]. The government has also failed to comply with its co-extensive obligation under Article 10 to assign responsibility for meeting that  liability to the compensation body contemplated by that Article, just as the Irish government had failed in Farrell v Whitty.

The Court of Appeal then went on to hold that the injured claimant had a directly effective remedy against the Bureau:

74. Accordingly in my judgment, the MIB, albeit a private law body, has had conferred on it by the UK government the task under Article 10, which as [39] of Farrell v Whitty (No 2) makes clear, includes remedying the failure of the government to institute in full a compulsory insurance regime, in the present case in respect of the use of vehicles on private land. As the CJEU held in [42] of Farrell v Whitty (No 2), it is inherent in that task that it is in the public interest. Like the MIBI, the MIB possesses special powers by virtue of the provisions of the RTA which oblige all authorised motor insurers to be members of the MIB and to contribute to its funding. The short answer to Mr Mercer QC’s point that the MIB levy does not oblige insurers providing off-road cover to contribute to the levy is that any issue can be addressed by amendment to the RTA and/or the MIB Articles of Association, but, in any event, that point does not provide an arguable point of distinction between the present case and Farrell v Whitty (No 2).

75. Accordingly, like the MIBI, the MIB is an emanation of the State against which Article 10 of the 2009 Directive can be enforced by the claimant, as it has direct effect. In my judgment, this does not have the effect of making the MIB a primary compensator as Mr Mercer QC contended. The MIB may well have rights of contribution over against the Department of Transport. Indeed, we were informed by Mr Moser QC that the MIB has issued a Contribution Notice against the Department in the present proceedings. In any event, on the basis that the MIB is an emanation of the State, it is no answer to its liability to compensate the claimant that this liability has only arisen through the fault of the UK government: see [62]-[63] of Konle v Austrian Republic (Case C-302/97) [1999] ECR I-3099.

Once the Covid19 pandemic is resolved, the thorny issue of Brexit will arise again: indeed the government is loudly proclaiming its adherence to the 12 month transition period. But it seems unlikely that UK law, unshackled from the chains of European servitude will be amended to retrospectively remove accrued directly effective rights. More uncertain is the degree of convergence (or divergence depending on your point of view) that the UK will adopt in relation to European Union motor insurance law going forward.  

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