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Uninsured Drivers & Accidents Abroad : Damages & Applicable Law

Jacobs v MIB [2010] EWCA Civ 1208


The appellant, (J) was a resident of the United Kingdom; he was injured when he was struck by a car driven by an uninsured driver in Spain. J appealed against a decision that the respondent Motor Insurers' Bureau (M) was obliged to pay him compensation in accordance with Spanish law.


J sought to recover compensation from M under the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003, but M argued that the amount of compensation payable was to be assessed in accordance with Spanish law.


In proceedings brought to determine whether M was obliged to compensate J, the judge concluded that reg.13(2)(b) required the claim to be determined in accordance with English law. However, he held that the Regulation was inconsistent with the provisions of Regulation 864/2007 art.4(1), and that compensation was therefore to be assessed in accordance with Spanish law, being the law of the place where the accident occurred.


The court was required to determine whether M was obliged to pay compensation to J assessed in accordance with Spanish law or English law.


Directive 2000/26, which established the compensation scheme, did not state whether questions of liability and compensation were to be determined by reference to the law of the country in which the accident occurred (see §21 of judgment). The 2003 Regulations were also silent on that point (§22). Regulation 12(4)(a) obliged M to indemnify an injured person who lived in England if he could satisfy it that the insured driver was liable to him. Since the accident had to have taken place abroad, the need to demonstrate liability on the part of the driver required the court to consider what law governed the issue. In most cases art.4(1) of the 2007 Regulation would apply and the issue would be determined by reference to the law of the country in which the accident had occurred.


However, it was less easy to identify the law governing the assessment of damages because of the reference in reg.12(4)(b) to the laws applying in England. References in legislation to the law of a particular country usually referred to its general rules of law rather than its rules relating to the conflicts of law, and the inclusion of the reference in reg.12(4)(b) obliged M to pay compensation assessed in accordance with English law (§24-25, 27, 29). Regulation 13 said nothing about how compensation was to be assessed; the answer lay in the words "shall compensate the injured party in accordance with the provisions of Article 1 of the [Second Directive]".


Directive 84/5 art.1(4) obliged Member States to set up a body to provide compensation for personal injuries caused by uninsured drivers: it was implicit in the scheme that the victim had to establish that the driver was liable, but whether that required proof of fault depended on the law of the country in which the accident occurred. It followed that the obligation imposed on M by reg.13(2)(b) carried with it the implicit proviso that the injured party had to show that the driver was liable as determined by reference to the applicable law identified in accordance with the appropriate conflict of laws rules, usually leading to the application of the law of the country in which the accident occurred (§31-32).


However, different systems of law could govern different questions raised by the same claim, and under English conflict of laws rules the assessment of damages gave rise to a separate issue (§33), Macmillan Inc v Bishopsgate Investment Trust Plc (No3) (1996) 1 WLR 387 CA (Civ Div) applied. The mechanism by which M's obligation to compensate under reg.13 was established was to treat the accident as having occurred in Great Britain. In the absence of any provision limiting its scope, it was difficult to see why it should not also affect the principles governing the assessment of damages, particularly in the absence at the time of complete harmonisation throughout the EEA of the conflicts of laws rules governing that issue (§35). Having regard to the language of reg.13(2)(b), compensation was to be assessed on the basis that the accident occurred in Great Britain. That conclusion had the incidental merit of ensuring that the measure of compensation recoverable under reg.13 was likely to be broadly the same as that recoverable under reg.12 (§37).


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