Trethowans Insurance team acts on important cross border case
Trethowans acted in the recent high profile High Court case of Marshall v (1) MIB (2) Pickard & (3) Generali 2015.
The case concerned an uninsured Peugeot car driver who had hit two British nationals (M and P) as they were standing behind a Ford Fiesta car and trailer, while the trailer was being attended to by a recovery truck on the side of a motorway. P had been driving the Fiesta, and M was his passenger. After hitting M and P, the Peugeot collided with the trailer, shunting it into the Fiesta which in turn was shunted into the recovery truck. P was thrown forward by the impact with the Peugeot and landed clear of the vehicles. He suffered serious injuries. M was thrown off the front of the Peugeot, and the trailer fell on his leg. He died at the scene. The Fiesta was registered in the UK and insured by RSA; the recovery truck was registered in France and insured by Generali. Two actions were commenced. The first was brought by M's widow (W) against the MIB, relying upon the 2003 Regulations. The MIB denied liability on the basis that under French law, liability lay with P and RSA, as driver and insurer of the Fiesta, and Generali, as insurer of the recovery truck. Its case was that its equivalent in France, the FdG, was not liable to compensate W, and therefore it had no liability. P and Generali were added as defendants. The second action was brought by P against the MIB. Again, the MIB denied liability and claimed that Generali was liable to P.
The issues were (i) whether French or English law applied to the issue of liability; (ii) if French law applied, whether the Fiesta and recovery truck were "involved" within the meaning of the applicable French statute, the Loi Badinter, and (iii) whether the MIB was liable under the 2003 Regulations.
The High Court decided that;
(1) The applicable law was to be determined by reference to Regulation 864/2007 art 4. The general rule under art 4 (1) was that the applicable law was the law of the country in which the damage occurred. It was common ground that for all the claims, the damage occurred in France. Article 4 (2) provided an exception to that general rule, that where the parties had their habitual residence in the same country at the time when the damage occurred, the law of that country would apply. Article 4 (3) provided that where it was clear from all the circumstances that the tort was more closely connected with a country other than that indicated in (1) or (2), the law of that country applied. Thus, under art.4(3), a governing law mandated by art.4(1), but excluded by art.4(2), might be required by art.4(3). In the instant case it was clear that the tort was manifestly more closely connected with France rather than England and thus French law applied to the issue of liability for the claims before the court.
(2) The Loi Badinter imposed a liability to compensate persons injured in a road traffic accident on the insurer of any vehicle which was "involved". A vehicle was involved in an accident if it intervened in "any capacity whatsoever". That went beyond a causal link, but there were still limits; mere presence of a vehicle at the time of the accident was not enough. In respect of M, the Fiesta was involved as M had ended up trapped underneath the trailer at a time when he was alive. The recovery truck was also involved as the trailer fell on M when it was prevented from travelling forward by the truck's presence. Thus, both RSA, as insurer of the Fiesta, and Generali, as insurer of the recovery truck, were liable to W under French law. In respect of P, although there was no contact between him and the Fiesta or trailer, both were involved in his accident. However, the recovery truck was not involved as there was no collision or contact between it and P and, although it was present at the time of the collision, there was nothing out of the ordinary in what the recovery truck had done so far as P was concerned. Neither RSA nor Generali was liable to P.
(3) In those circumstances, the FdG was liable to P and thus the MIB was liable to compensate him under the 2003 Regulations. The question remained as to whether the MIB was liable to W under reg 13. W contended that as it was common ground that the preconditions in reg 13 (1) had been satisfied, the MIB was liable to compensate her under reg 13 (2). The court did not accept that. The FdG was not liable to make payments to W under French law as liability lay with both RSA and Generali under the Loi Badinter. In those circumstances, under the terms of re.13(2), the MIB was not liable to compensate W.
The court considered the cases of Jacobs v Motor Insurers Bureau 2010 and Bloy v Motor Insurers Bureau 2013.
This is an instructive case for those involved in cross border matters. The full reported case can be found at http://www.bailii.org/ew/cases/EWHC/QB/2015/3421.html
For more on Rome ii and cross border cases refer to previous articles written by Trethowans and leading cross border specialists Van Ameyde UK and published in the Post Magazine and Insurance Insight.