By: 22 July 2015
Accidents abroad and damages at home

David Aldred examines the thorny question of damages for English claimants injured in road traffic accidents in EC member states

As the main holiday season approaches there’s been a timely challenge in the High Court by the Motor Insurers Board (MIB) to the existing law which determines the national law applicable to the assessment of damages when an English claimant is injured by an uninsured or untraced driver in an EC member state.

In 2011, the claimant was visiting Greece when she was struck by a vehicle and suffered very serious leg injuries.

The driver of the vehicle was uninsured and so the claimant brought a claim in the English court against the MIB under the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003. The court’s jurisdiction to hear the claim in Moreno v MIB (2015) EWHC 1002 (QB), was not in dispute and liability was admitted.

Conflict of laws

It was common ground that if the driver of the vehicle had been insured, then the law applicable to the assessment of the claimant’s damages would have been Greek law because of the application of Article 4 of Rome II (as in the Court of Appeal’s judgment in Wall v Mutuelle de Poitiers SA [2014] EWCA Civ 138).

However, Regulation 13(2) of the 2003 Regulations states that the where this regulation applies, the injured party may make a claim for compensation from the [MIB]; and that the [MIB] shall compensate the injured party “as if the accident had happened in Great Britain”.

As a result, the preliminary issue to be decided was the conflict between the wording of the 2003 Regulations and the effect of Rome II. Simply, should the claimant’s damages should be assessed under English law (as provided by Regulation 13(2) of the 2003 Regulations) or Greek law (as provided by Article 4 of Rome II)?

Moreno: The High Court’s verdict and the prospects of an appeal

In Moreno, the MIB has taken the opportunity to seek a Supreme Court precedent stating that since the coming into force of Rome II, Regulation 13 should not be applied to permit an assessment of damages that is beyond the scope and/or limits imposed by the national law of the EC member state where the relevant accident took place.

In the High Court, Justice Gilbart found in favour of the claimant: In a Regulation 13 claim, the law by which the assessment of compensation is made should be the law of England and Wales. The effect of Regulation 13 (and 16) remained the creation of a cause of action, enforceable as a civil debt, in which the compensation would be assessed on the basis of English law.

Despite finding for the claimant, however, the basis of the judgment was that the High Court is bound by the Court of Appeal’s decisions in Jacobs and Bloy, two previous cases involving the MIB. While Justice Gilbart felt that there was limited merit in the MIB’s argument that the 2003 Regulations were misinterpreted by the Court of Appeal, he suggests that there was “very considerable force” to the MIB’s contention that Jacobs was nonetheless wrongly decided because it did not interpret the 2003 Regulations in a way which brought them into conformity with Article 4 of Rome II.

In light of the High Court’s judgment, the MIB will persist with its original aim and attempt to pursue an appeal to the Supreme Court.

A resolution in sight

It is likely the existing inconsistency which allows an English claimant, injured in a road traffic accident in another member state and pursuing their claim in the English court, to recover a different (usually higher) level of damages solely by virtue of being injured by an uninsured driver, will be resolved.

To the extent that the objective of the implementation of Rome II is clarity and uniformity, this outcome should be considered correct.

In the meantime, claims against the MIB which turn on this question are likely to be stayed pending the outcome of the MIB’s appeal. More than five years after leave to appeal for Jacobs was granted, the MIB may be nearing its objective, and one of the few means of bringing the assessment of a claimant’s damages under English law (in a claim deriving from an accident in another EC member state) is likely to be removed.

David Aldred is a member of the Parabis Travel Law team