Dr Nicholas Bevan

Dr Nicholas Bevan

Tuesday, 16 April 2013

CALL FOR REFORM - of our national provision for victims of motor accidents

Reforming our national law provision

In my recent New Law Journal Articles I set out the case for reform. Thanks to my wonderful editor, Jan Miller, the NLJ has agreed to provide open links to these articles:

Links to four articles in the New Law Journal: 'On the right Road?'

I now list the reforms needed to restore our national law provision to the original 1930 concept: which was to ensure that victims of motor vehicle accidents and incidents recover their full compensatory entitlement - come what may: regardless of the driver's breach of policy, the use to which the vehicle was put, or whether the defendant was uninsured or untraceable.

Core principles 

  • Restoration to the original legislative objective of the Road Traffic Act 1930 (as amended by the 1934 Act).
  • Adherence to the minimum standards of protection for victims of motor vehicle users required by the EC Motor Insurance Directive and Community law.
  • Codification of the statutory and extra-statutory provision for victims of uninsured and unidentified drivers.

This involves:

  • Imposing compulsory third party motor insurance for the use of motor vehicles anywhere in the United Kingdom.
  • Removing road use as a criterion within the definition of a motor vehicle.
  • Redefining
    • the requirements of a third party motor insurance policy issued under this scheme, so that it covers any use to which the vehicle is put and extends a statutory indemnity in favour of a third party entitled to compensation, regardless of any breach of contract by the policyholder.  This to be without prejudice to any contractual rights the insurer may have against its policyholder,
    • The statutory indemnity (that requires a motor insurer to satisfy a court judgment in favour of a third party) so that it applies, regardless of any policy restriction, limitation, exclusion or other contractual term. This to be without prejudice to any contractual rights the insurer may have against its policyholder,
    • Removing all statutory provisions that are inconsistent with the above, such as section 148, 150, 151 and 152 Road Traffic Act 1988 and barring the use of the common law principle of ex turpi causa non oratur actio as a defence to a third party claimant.
  • Removing the ability of an insurer to obtain a declaration that a policy is void or unenforceable, once the accident or other incident giving rise to the third party’s claim has already occurred. This to be without prejudice to any contractual rights the insurer may have against its policyholder.
  • Redefining the direct right of action to conform to the above principles, so that it is not restricted to accidents and is entirely independent of any contractual issues between the insurer and policyholder, whether arising out of the use of the insured vehicle or otherwise.
  • Codifying and simplifying both extra-statutory compensatory regimes for victims of uninsured and untraced drivers, so as to provide an equivalent and as effective compensatory guarantee as would avail a victim of an insured driver. This would include:
    • Removal of the draconian procedural strike out clauses,
    • Removal of the oppressive conditions precedent,
    • Removal of the unlawful exclusions of liability,
    • Removal of the unlawful powers to make deductions from victims’ compensatory entitlement,
    • Removal of the special evidential presumptions.
  • Clear demarcation between the statutory indemnity that applies where the vehicle involved has some third party motor insurance is in place (where the victim has a direct right of action against the issuing insurer) and the compensatory regime where no insurance can be traced.
  • Imposing a statutory duty on the MIB to administer the new statutory compensatory regimes for uninsured and untraced drivers.  The regimes to extend to unauthorised use of vehicles exempted from the compulsory insurance provisions.
  • Making the MIB more accountable by imposing a service level agreement, reporting requirements and an independent supervisory body and complaints and appeals procedure.
  • Imposing harsher penalties for
    • driving or permitting the use of a vehicle with no insurance
    • failing to stop
    • attempting to defraud insurers by deliberately withholding material information or knowingly providing false information 
  • Imposing a new offence of driving or permitting the use of a vehicle with insufficient contractual insurance to cover the actual use to which it has been put

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