RTA INSURANCE AND LIABILITY UPDATE

Apply to APIL for details and to reserve your place

Announcing a brand new full-day RTA liability update course in two parts

If you handle RTA claims then this is something you cannot afford to miss

In the morning:

We will focus is still on the third party motor cover that our clients depend on for full compensatory redress.  This is a rapidly evolving area of the law has been long neglected by Parliament and widely misunderstood by the judiciary. It is badly flawed, often inconsistent. It is also in a state of flux, particularly in anticipation of a Brexit and the government’s proposals for introducing driverless cars. 

• Ground breaking research, new insights and ongoing developments combine to create exciting opportunities for successful legal challenges.  
• Why product liability law is now essential for RTA practice and other implications of automated driver assistance schemes. 
• What does this new RTA landscape mean for RTA practitioners?

In the afternoon:

This will consist of a lively general RTA liability case law update:

• numerous interesting driver liability case authorities and scenarios
• reviewing contributory negligence (what are the must know authorities? When can you safely challenge a first instance allocation?), and the criminal complicity defence – with new insights
• RTA’s abroad in the European Union, the Supreme Court decision in Moreno and post Brexit

RTA Update training in Manchester: 24 November 2016

RTA Update training in London: 1 December 2016

Please apply to APIL for details and booking information.

Click here to book a place on this course

RESPONSE TO GOVERNMENT CONSULTATION ON DRIVERLESS CARS

Proposals for reform

The government is keen to encourage the commercial opportunities presented by rapidly developing automotive technologies. It believes that within 2 - 4 years we could see the introduction on our roads of vehicles equipped with autonomous advanced driver assistance systems.

It is consulting on its proposals for reforming:

• the scope of motor third party insurance cover
• construction and use regulations
• the Highway Code

Shortcomings

In my New Law Journal article, The road ahead, I alert RTA practitioners to some shortcomings in the governments’ paper: Pathway to Driverless Cars.

In my view the proposals overlook the fact that the existing third party motor insurance requirement should already include product liability cover.  This is clearly required by the European Directive 2009/103 on motor insurance that Part VI of the Road Traffic Act 1988 is intended to fully implement.  In my view the problem lies elsewhere:  in the empirical development of our legislation over the past 85 years (since the first Road Traffic Act 1930 introduced the concept of compulsory insurance) whereby additional provisions have been grafted on in a piecemeal fashion to the existing provisions without any proper consideration being given to their effect on the original Parliamentary intention; in the confusing and eclectic mix of legislative and extra-statutory provision; in the basic non-conformity of much of our national law provision with the European law that is clearer, shorter and superior in the degree of compensatory protection it affords to third party victims and the government’s failure to regulate the terms of third party cover provided to the public.

These failings are the subject of an ongoing judicial review by RoadPeace against the Secretary of State for Transport.

Consultation Response

I have been consulted by the Association of Personal Injury Lawyers and RoadPeace on the issues raised by the Pathway to Driverless Cars consultation paper.

I have also been working in collaboration with Professor Robert Merkin QC, Lloyds professor of commercial law at the University of Exeter, to prepare our own consultation response.  Readers can access the Merkin / Bevan consultation response here: CONSULTATION RESPONSE.

We argue that the entire corpus of national law provision for guaranteeing the compensatory entitlement of third party victims should be codified in the government’s proposed Modern Transport Bill.  This provision needs to be brought into line with the minimum standards of compensatory protection required under European law.  Welding on new product liability provisions to an already defective structure will only compound the problem. 

Third party motor cover must include product liability for defective mechanical and technical systems, if it is to provide effective and prompt compensatory provision for victims and in order to conform with European law minimum standards.  We propose strict liability being imposed on producers and suppliers of autonomous vehicle systems in favour of all third parties affected thereby with the state of the art defence (under section 4 (1) (e) Consumer Protection Act 1987) being excluded in this context. We also argue for a first point of contact role for motor insurers and that they should have an absolute duty to compensate third party victims promptly even where a product defect caused or contributed to the accident, subject to a subrogated right to recover their outlay from the producer, supplier, retailer, owner, servicer etc.

9 September deadline

The deadline is fast approaching.  Law firms and interested parties have until 9 September in which to respond to this important consultation.  

THE ROAD AHEAD

The New Law Journal has just published my article on the government's proposals for reforming motor insurance and other regulatory aspects of motor transport to accommodate new automated vehicle technologies.  See my earlier post GOVERNMENT CONSULTS ON DRIVERLESS CARS.

My New Law Journal article, The Road Ahead, whilst welcoming the initiative, points out that the proposals contain some inaccuracies that need to be addressed. Just as with the Department for Transport's flawed 2013 consultation on reforming the MIB Agreements, this paper fails to fully appreciate the importance of European law in this area and this leads its authors to fall into error. 

Law firms with a significant RTA practice would be wise to study the government's proposals and to respond to this consultation.  The consultation ends on 9 September.

MIB Webinar on 15 September: new remedies

APIL Webinar: Thursday 15 September 2016, between 13.00 and 14.00 hrs

Presented by Nicholas Bevan of Nota Bene Legal Consulting

              “Very clear, concise delivery. Points very well explained.”

Most practitioners are aware that the compensatory protection for motor accident victims under the Road Traffic Act 1988 and in both MIB Agreements falls below the minimum standard of protection required by the EU directive on motor insurance. This illegality is currently the subject of an ongoing judicial review.

Under the current schemes, some incidents fall completely outside the scope of MIB liability and third party cover, for example:

• Accidents in places that don’t require TP cover, such as private lanes and parking areas
• Accidents featuring a type of motor vehicle that does not require TP cover: such as a go cart, electric skateboard, or a piece of farm machinery etc.

In numerous other claims the MIB rely on exclusions or restrictions of liability (purportedly conferred in its agreements with the Secretary of State for Transport) where these are not permitted under European law.

Every year, many injured claimants face a stark dilemma: of either being left undercompensated or empty handed or embarking on the hazardous and costly process of pursing a Francovich action against the state, a route made even more risky due to the UK’s exit from the EU .

New ground breaking research reveals that the MIB is directly responsible for compensating anyone injured by an event that ought to be covered by motor insurance (under EU law) but isn’t. The claim is pursued as an ordinary personal injury action with the benefit of QOCS.

This webinar explains the relevant law and outlines the process that will be covered in more detail in the forthcoming full day APIL training day on Mastering MIB claims.

This is new, not to be missed, cutting edge and essential law for anyone handling motor accident claims.

Brexit won’t directly alter our law for at least 2 years and the rule of retrospectively means that that European law remedies applies to a minimum of a 5 year tranche of claims.

Click here to book your place on this lunchtime webinar.

Alternatively, contact Anthony Lord at: 0115 958 0585 ; training@apil.org.uk

GOVERNMENT CONSULTS ON DRIVERLESS CARS

Personal injury law firms and practitioners need to be aware that the government is consulting on its proposals for reforming:

• the scope of motor third party insurance cover
• construction and use regulations
• the Highway Code

 The government is keen to encourage the commercial opportunities presented by rapidly developing automotive technologies. It believes that within 2 - 4 years could see the introduction on our roads of vehicles equipped with advanced driver assistance systems.  These  will enable vehicles to assume control the driving in certain scenarios, such as in motorway traffic and remote parking. These will not be truly driverless vehicles as human supervision will still be necessary even when these systems are engaged. 

The government does not believe that fully automated / driverless vehicles will be ready for the market until the mid 2020s.

The report is published by the Centre for Connected & Autonomous Vehicles which is a jointly run policy unit managed by the Department for Transport and the Department for Business, Innovation and Skills.  Follow this link for the report: Pathway to Driverless Cars: Proposals to support advanced driver assistance systems and automated vehicle technologies.

Law firms that have any significant RTA caseload would be wise to study these proposals as they could have an impact on the legal and regulatory framework that apply to road accident claims. There is a growing concern that the legal implications of its proposals have not been fully thought through. It is important that any misconceptions are flagged up by lawyers practicing in this field.

The deadline for responding is 9 September 2016.

PUTTING WRONGS TO RIGHTS (Part 2)

Why Byrne v The Motor Insurers' Bureau [2007] EWHC 1268 (QB) is wrong on MIB liability

In the second of two New Law Journal articles, Putting wrongs to rights (Part 2), I address head-on Mr Justice Flaux’s decision in Byrne v Motor Insurers Bureau (MIB) 2007 in which he ruled that although the MIB Untraced Drivers Agreement was intended to implement the European directives on motor insurance, they did not have direct effect against the MIB because it is not an emanation of the state.  

I explain my reasons for holding that the learned judge’s decision was based on wrong law and incomplete facts, making his finding per incuriam. 

PUTTING WRONGS TO RIGHTS (Part 1)

Why the Motor Insurers' Bureau is liable for motor accidents on private property

In the first of two New Law Journal articles, Putting wrongs to rights,  I argue the case for fixing the Motor Insurers’ Bureau (MIB) with liability to compensate motor accident victims who fall through the safety net provided by compulsory third party motor insurance under Part VI of the Road Traffic Act 1988.

I revisit primary European law principles relating to state liability.  Applying this law to the MIB, I conclude that as this state incepted insurance consortium discharges a public service that is regulated by the Secretary of State for Transport and because it has also been conferred with special powers to enable it to discharge that role (one that is clearly defined by Article 10 of the European Directive 2009/103 on motor insurance, in mandatory terms) it is subject to its direct effect.  

Consequently, the MIB is liable to compensate victims who qualify for protection under Article 10 regardless of whether or not our national law provision actually extends to the accident circumstances.