#5102 - Jones V. Motor Insurers Bureau - Conflict of Laws BCL

Jones v. Motor Insurers Bureau

Facts

In December 2007 the appellant, Mr Jacobs, was injured when he was struck by a car driven by a German national, Herr Bartsch, in a car park in Fuengirola, Spain. Mr Jacobs was and still is a resident of the United Kingdom. At the time of the accident Herr Bartsch lived in an EEA State, possibly Spain or Germany; the car itself was ordinarily based in Spain.

The dispute in this case has arisen out of the fact that it has not been possible to identify any insurance undertaking which insured Mr Bartsch or anyone else to drive the vehicle. It is common ground that in those circumstances Mr Jacobs is entitled to recover compensation for his injuries from the respondent, the Motor Insurers' Bureau (“the bureau”), but there is a dispute about whether the amount of that compensation is to be determined by reference to the law of England (where Mr Jacobs lives) or the law of Spain (where the accident occurred).

On 16 December 2008 Mr Jacobs started proceedings against the bureau to recover compensation under the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003.

Question

Whether the bureau is obliged to pay compensation to the claimant assessed in accordance with the law of England or the law of Spain.

Holding

First EU Directive: 1. Each member state shall, subject to article 4, take all appropriate measures to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance. Each member state shall take all appropriate measures to ensure that the contract of insurance also covers:— according to the law in force in other member states, any loss or injury which is caused in the territory of those states.

Second EU Directive: Each member state shall set up or authorise a body with the task of providing compensation, at least up to the limits of the insurance obligation for damage to property or personal injuries caused by an unidentified vehicle or a vehicle for which the insurance obligation provided for in paragraph 1 has not been satisfied. Each member state shall apply its laws, regulations and administrative provisions to the payment of compensation by the body, without prejudice to any other practice which is more favourable to the victim.

Fourth Directive: make it easier for victims of road traffic accidents to recover compensation by enabling them to pursue claims in their countries of residence against a representative of the insurer. At the same time the Fourth Directive required member states to put in place legislation to give those injured in road accidents a right to make a claim directly against the driver's insurer. In order to provide further support for the system the Fourth Directive also required each member state to establish a compensation body against which the victim could pursue a claim if the insurer's representative failed to respond promptly to the claim or the vehicle was not covered by insurance or could not be traced.

Under the scheme established by the Fourth Directive the compensation body in the state where the injured person resides provides a person from whom he can recover if the driver's insurer fails to respond promptly to his claim or the driver is uninsured or a relevant insurer cannot be identified. However, the compensation body is not the person ultimately responsible for bearing the loss, having a right to recover from the compensation body of the state in which the insurer is established (in the case of an insured vehicle) or against the guarantee fund of the state in which the vehicle is normally based (where the vehicle can be identified but there is no insurance) or of the state in which the accident took place (where the vehicle cannot be identified).

The 2003 Regulations:

Regulation 12:

Regulation 12 requires the compensation body to respond to a claim by a person resident in this country who has been injured in a road traffic accident abroad (for these purposes in another EEA state) involving a vehicle which is normally based abroad and insured through an establishment abroad. The material parts provide:

(3) If the injured party satisfies the compensation body as to the matters specified in paragraph (4), the compensation body shall indemnify the injured party in respect of the loss and damage described in paragraph (4)(b).

(4) The matters referred to in paragraph (3) are— (a) that a person whose liability for the use of the vehicle is insured by the insurer referred to in regulation 11(1)(c) is liable to the injured party in respect of the accident which is the subject of the claim, and (b) the amount of loss and damage (including interest) that is properly recoverable in consequence of that accident by the injured party from that person under the laws applying in that part of the United Kingdom in which the injured party resided at the date of the accident.”

Regulation 13:

(2) Where this regulation applies— (a) the injured party may make a claim for compensation from the compensation body, and (b) the compensation body shall compensate the injured party in accordance with the provisions of article 1 of the [Second Directive] as if it were the body authorised under paragraph 4 of that article and the accident had occurred in Great Britain.

Law Applicable to Assessment of Damages

It is less easy, however, to identify the law which governs the assessment of damages because of the reference in regulation 12(4)(b) to the laws applying in England. If that had not been included, so that the paragraph referred simply to the amount of loss and damage properly recoverable by the injured party from the person liable, the position would have been straightforward. Whatever the position in 2003, article 4 of Rome II would now apply and the issue would normally have to be determined by reference to the law of the country where the accident occurred. On the face of it, however, the inclusion of the reference to the laws applying in England and Wales obliges the bureau to pay compensation assessed in accordance with English law.

Mr O'Brien sought to escape from that conclusion in two ways. First, he submitted that the reference to the law of England is to be understood as including a reference to English rules on the conflicts of laws,...