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As we move into Autumn and the holiday season seems like a dim and distant memory the Supreme Court decision in the case of Moreno v MIB has clarified the law regarding UK based Claimants who are injured as a result of an accident whilst visiting another EU member state.
Moreno v MIB
In 2011, Mrs Moreno suffered serious injuries whilst on holiday in Greece. She was walking along the verge of a road when she was hit by an Albanian motorist driving a car without insurance.
As a result of her injuries she had to have her lower right leg amputated.
Mrs Moreno subsequently pursued a claim in England against the English Motor Insurer’s Bureau (the “MIB”).
That she was able to pursue a claim against the MIB in England stems from a series of EU Motor Insurance Directives culminating in a Sixth Directive which was incorporated into English law by the Motor Vehicles Regulations 2003. In particular, the 2003 Regulations established the scheme within the UK whereby a UK victim of a motor accident which occurs in another member state can claim compensation directly from the MIB where it has proved impossible to identify an insurer of the vehicle.
The MIB can, in turn, seek compensation from the Greek compensation body (their equivalent of the MIB) once the Claimant had been compensated.
The law
The question for the Supreme Court was whether the measure of Moreno’s damages was to be assessed by reference to English or Greek law.
There is quite considerable variation around Europe as to the level of damages available to a Claimant following personal injury. In this case, Mrs Moreno would receive substantially higher damages if her claim were to be assessed in accordance with English damages as opposed to Greek damages.
Since 2009 (following the implementation of another EU Directive, “Rome II”), unless an exception applies, if a UK Claimant is injured in a motor accident elsewhere in Europe by an insured driver, the law by which damages are to be assessed is the law of the foreign country.
However, the position where the driver was uninsured was different as a result of the Court of Appeal decision in the case of Jacobs v MIB [2010] in which the Court concluded that based on the wording of the 2003 Regulations it was intended that English law should apply to the assessment of damages.
Accordingly, as a result of Jacobs the measure of compensation could vary depending on the driver’s insurance status.
At first instance the Judge considered that he was bound by the Court of Appeal decision in Jacobs and ruled in favour of the Claimant i.e. that English damages applied. However, he noted that the Supreme Court had previously given permission for the MIB to appeal the issue in Jacobs but that the appeal had not proceeded. In view of the importance of the issue the Judge granted a ‘leap frog’ certificate which meant that there were no need for a hearing in the Court of Appeal.
The decision of the Supreme Court
The lead Judgment was given by Lord Mance who concluded that the 2003 Regulations should so far as possible, be interpreted in a way which was consistent with the EU Directives, including the EU Motor Directives.
He disagreed with the Court of Appeal’s interpretation of the 2003 Regulations and accordingly held that Mrs Moreno’s damages should be assessed in accordance with Greek law.
What does this mean?
Essentially, this Judgment means that (unless one of the narrow exceptions applies) where a UK based Claimant suffers an injury in another EU member state as a result of a motor accident their damages will be assessed in accordance with the law of the country where their accident occurred regardless of whether the vehicle is insured or not.
For example, if you are injured in an accident whilst visiting Lithuania there is now no doubt following the Supreme Court’s Judgment in Moreno that the claim will be assessed in accordance with Lithuanian damages.
There will no doubt be a number of ongoing cases which will be affected by the decision in Moreno and where Claimant’s and their legal advisors will need to review previous offers of settlement which may now be considerably more attractive than was previously thought to be the case.
What about Brexit?
It will be interesting to see what happens in the post-Brexit world. If the 2003 Regulations are not expressly ‘saved’ in to English law they will cease to apply the moment the UK leaves the EU. In other words, the EU Motor Insurance Directives will no longer be incorporated into English law.
In addition, even if the Regulations are preserved into English law they will be subject to revision and overruling and amendment in the usual way without (on the face of it at least) needing to reflect EU legislation.
As Lord Mance commented in his Judgment “with British exit from the Union, this will, no doubt, be one of the many current arrangements requiring thought”. That is probably something of an understatement!
What will happen next? Answers on a postcard!
