- Lord Mance's Supreme Court ruling in Moreno brings the applicable law for
foreign EEA untraced and uninsured driver claims into line with Rome II
- Local standards and local law of the accident
location apply
- Jacobs v
MIB [2010] EWCA Civ 1208 and Bloy v
MIB 2013] EWCA Civ 1543 are overturned
The accident
On 17 May 2011 Tiffany Moreno, a UK resident,
sustained grievous injuries to her legs when she was hit from behind by an
uninsured driver whilst holidaying on the island of Zakynthos in Greece. One of her legs was amputated through the
tibia. She needs a wheelchair and
continues to suffer pain and psychological problems. She has an extensive claim that includes
future loss of earnings and handicap in the labour market.
The issue
The only issue in this case was which
applicable law should be used to quantify Ms Moreno’s claim: was it the more
generous UK common law or was it to be determined by the less generous standards
of the Greek Civil Code?
The Supreme Court ruling
The Supreme
Court upheld the MIB’s appeal, ruling that Ms Moreno’s compensation should be
assessed by reference to the Greek Civil Code.
It had been
open to the Supreme Court to distinguish the present claim, whose accident post-dated
the coming into force of Rome II, from the Jacobs
and Bloy decisions, which preceded
its implementation. However, Lord Mance, who delivered the only reasoned opinion, chose a different route.
As the Sixth
Directive was not in force when the 2003 Regulations were in place his judgment
refers to its predecessors, which have been incorporated into the Sixth almost
word for word. His analysis of what are
now articles 3, 10, 24 and 25 of the Sixth Directive [that respectively impose (i)
the third party insurance requirement, (ii) the MIB’s compensatory role for UK
accidents involving uninsured and unidentified vehicles, (iii) the MIB’s role
as a guarantee fund for foreign EEA accidents where either the foreign insurer
or representative is not identified or fails to respond or (iv) where the
foreign vehicle responsible is uninsured or unidentified] revealed no
legislative discretion for member states to choose the applicable law. The clear and consistent intention was that
the applicable law should be determined by reference the country in which the
accident happened. This is to be applied
uniformly, whichever of the compensatory routes were followed: identified
insured, insurer not cooperating or where the vehicle is uninsured or
unidentified. By way of example, the
clear implication of what is now Article 25 (2) was that the compensating body
would recover its full reimbursement from its foreign counterpart.
His analysis
of the 2003 Regulations opened with a restatement of the Marleasing principle, namely that they should be interpreted in a
sense which is not in any way inconsistent with the Directives. He found no indication in these regulations that
their general intent was to do anything other than fully implement or give
effect to the directives. Furthermore,
on the specific issue as to whether Regulation 13 intended to prescribe any
particular approach to the applicable law for quantifying the damages, he found
that the Court of Appeal had construed the wording too narrowly. Viewed holistically, ‘it can be seen to be a
scheme of which the constant aim has been to improve the prospects and ease
with which injured parties can recover the compensation to which they are
“entitled” in respect of any loss or damage caused by vehicles’ [paragraph
30]. He also considered the Green Card
scheme, that applies the law of the state where the accident occurred, and the
2002 Agreement between the Bureaux whose reimbursement scheme is set at the
level of award set by the same uniform rule of applicable law.
This Supreme
Court judgment provides a good illustration of the potent effect that a
European law consistent construction of inconsistent UK provisions can have
where they fail to properly implement European law. It will be recalled that in Churchill v Wilkinson [2012] EWCA Civ
1166 the Court of Appeal added an extensive passage of ‘notional’ wording to
section 151 (8) Road Traffic Act 1988, in order to bring its defective wording
into line with the Sixth Directive. Unless
and until the government decides to remedy the numerous breaches of the Sixth
Directive RTA practitioners need to be alert to the fact that our national law
implementation is systemically defective and that its wording cannot be taken
at face value. This applies equally to
the Part VI of the Road Traffic Act 1988, the 2002 and 2003 Regulations as to
both MIB Agreements.
To access my
full article on Moreno,
Impact Assessment,
which was published in the September 2016 issue of PI Focus,
CLICK HERE.
