Dr Nicholas Bevan

Dr Nicholas Bevan

Thursday, 5 October 2017


Genuine motor accident victims are being denied their proper entitlement to compensation

Motor accident injuries on private land or featuring vehicles that are not subject to compulsory insurance are relatively rare.  However, they do happen and (in the case of infants and child victims) they can often have tragically catastrophic results.

In early 2013 the government was alerted to the problem that serious injuries were occurring every year in circumstances that (wrongly) fall outside the scope of the UK provision for compulsory third party cover. Unfortunately the Minister for Transport chose to do nothing about it.   Although there are no official statistics to confirm or refute this phenomenon, I have been consulted in at least ten instances in recent months and this leads me to suppose that these incidents are not uncommon.

Without compulsory third party insurance, a victim is exposed to recovering a nugatory share of their full entitlement to damages and sometimes nothing at all.

This injustice stems from the failure of the government to properly implement the more generous scope of third party cover mandated by EC Directive 2009/103/EC on motor insurance in the Road Traffic Act 1988, The EC Rights Against Insurers Regulations 2002 and in the Minister for Transport's private law arrangements with the Motor Insurance Bureau (MIB) set out in the two eponymous schemes that apply to victims of uninsured and untraced drivers.

The unlawful gaps in protection occur in various scenarios:

(i) accidents caused by motor vehicle accidents on private property (e.g. on driveways, parking bays, privately owned country lanes) where EU law requires compulsory third party cover to apply but which fall outside the statutory definitions within the Road Traffic Act 1088.

(ii) accidents caused by vehicles that ought to be covered either by compulsory third party insurance or by the MIB compensation scheme, under EU law, but where due to the minister’s inaction are not covered by the Road Traffic Act 1988 or either of the MIB compensation schemes.  This exposes victims injured in a wide range of off-road vehicles to being denied their proper compensatory guarantee (e.g. victims of any mechanically propelled ‘off road’ vehicles such as segways, mini-bikes, go-carts, quad bikes, mobility scooters, quarry trucks and tractors).

(iii) accidents caused by a mechanical or software defect not attributable to the driver or owner’s misuse or negligence but attributable to some other party such as a design or manufacturing defect or negligence when undergoing a service.  The Road Traffic Act 1988 only imposed third party cover for the personal liability of the vehicle’s user. The motor insurance requirement under EU law extends to product liability, in fact to any civil liability arising out of the vehicle’s use.

(iv) claims arising from events that UK law requires to be covered by third party cover and where a policy is in place but where the vehicle’s insurer seeks to invoke against the victim a contractual limitation, exclusion, or restriction of its liability in circumstances that are not permitted under European law.

Victims of accidents occurring in these instances are exposed to the risk that the defendant is uninsured without there being any compensatory guarantee to ensure that they recover their damages from an impecunious defendant.

Last week I was distressed to learn of yet another case where a vehicle insurer managed to browbeat a victim who was knocked down and seriously injured on a school driveway into accepting a token payment on the basis that their policy restricted cover to use in public spaces (even though the restriction was unlawful).  Effective EU law remedies exist that could have prevented this outcome.

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