Getting hurt in far away places

by Whiskers

MIB v Moreno is the penultimate case of the legal year. It should not share the opprobrium of some cases rushed out carelessly by a de-mob happy judiciary eager to clear their desks before long vacation, but it feels rather unloved.  The result is probably the right one for those who value consistency, but I do prefer Moore-Bick’s Appeal Court judgment in Jacobs v MIB on precisely the same point. 

The case is about hurting yourself in faraway countries. Or more precisely, if you do hurt yourself, by what country’s law are your damages to be assessed?  The lex loci delicti, (the place where the accident occurred) as they call it on the continent, or the lex fori – domestic law?  There’s no obvious answer to this.  On the one hand lex loci delicti prevents arguments, especially when there are three nationalities involved eg a French man hits an English woman in Italy.  However once liability is established, then there’s a powerful argument for saying that damages ought to be assessed in the country where the victim lives. 

 This was illustrated by the case of Bloy v MIB which followed Jacobs.  The facts were tragic.  A baby and his mum injured by an uninsured driver, and the damages in the lex loci delicti (Lithuania) were capped and insufficient to compensate the baby for the lifelong care he was going to need.  This is how it used to be in the UK, as illustrated by the House of Lords case of Harding v Wealands.  Liability assessed by Australian law and damages with reference to UK law. 

Lord Clarke was clearly in grumpy mood and didn’t want to be there at all. He brought up Harding v Wealands even before the MIB’s counsel had got his ducks in a row.  Lord Clarke made it obvious that he wished poor Mr Mercer from Essex Court Chambers – a diffident but quietly determined advocate – would shut up and let him go back to deciding what books he was going to take on his hols.

Lord Mance and Lord Toulson were gentler and looked grateful for Mr Mercer’s comprehensive history of motor insurance in Europe. Mr Mercer’s junior was scarily clever Marie Louise Kinsler from 2 Temple Gardens.  She kept passing him notes and whispering the answer to all those nasty questions from their Lordships.

 The question, as Lord Clarke kept pointing out, was a simple one. If, as happened to poor Miss Moreno, you are a pedestrian hit by an uninsured Albanian driver in Greece, should Greek law decide how much compensation you get, or should English law? 

English damages for RTAs are more generous than most of Europe. So Miss Moreno clearly would have preferred those.  On the other hand, the scheme by which the Motor Insurance Bureau was liable to compensate her – Regulation 13(2) of the Motor Vehicles (Compulsory Insurance)(Information Centre and Compensation Body Regulations) 2003 (SI 2003/37)(“The Regulations”) – only allowed the MIB to claim damages back from Greece at the level they would have been in Greece.

 Now to put this in context, British drivers who hit people and things in Europe pay damages according to the law of the country where the prang happened. Also, if you’re hit by an insured driver in Europe, you get damages according to the lex loci delicti.  Why then should those with the misfortune to be hit by uninsured reprobates be better off. 

 Well why indeed? Unfortunately, as Moore-Bick LJ said, because our Regulations, which give effect to this diktat from Brussels – the Fourth Directive on Motor Insurance – (although quite a useful diktat in many ways) say that.   And although we now have a policy that UK legislation should be read in such a way as to give effect to EU legislation – the Marleasing case – you can’t just re-write UK legislation to make it compliant.  Or, as Lord Mance said, using Latin for extra gravitas, the court cannot act contra legem.

 Instead, what you have to do is make an application to the European Court of Justice who tells you that your draftspersons are rubbish and then Parliament has to change the offending law. Needless to say this is all a lot of fuss, and quite frankly why bother now that we’re out of there anyway? 

 Once we had been treated to a comprehensive history of motor insurance in Europe with extensive and close textual analysis by Mr Mercer, it was time for Mr Beard to rise. He seems not to have bought a clever little friend along with him.  There was a teenager in the solicitors’ benches, who might have been there on work experience, and behind him four civilians who presumably had come down to London to see justice done.  Although they sat very still and listened attentively, one had to wonder whether it’s kind to force non-combatants to undergo this type of experience.

 Lord Hodge regarded Mr Beard with less impatience, perhaps because Mr Beard did not want to give a revisionist version of the history we had heard. Mr Beard talked much about people having “to lump it”.  Lumpage is a new term of art for when you find yourself on the wrong end of a conflict of laws point, I think.  Lumpage was regarded as a Bad Thing, but a necessary evil, especially when Regulations which were supposed to implement EU law smoothly, without any fuss turn out to do just the reverse.  He resisted all the onslaughts of all five justices, and maintained his submissions of fidelity to the laws of the UK as drafted. 

 You decide: when an SI – a baby law – says this…

 the compensation body shall compensate the injured party in accordance with the provisions of Article 1 of the second motor insurance directive as if it were the body authorised under paragraph 4 of that Article and the accident had occurred in Great Britain.

What’s your reaction?   Act as though the accident had indeed happened in GB. Seems logical? 

Ultimately, though, it was not to be. The Supremes bowed beneath the weight of history and succumbed to the siren songs of pan-European tortious conformity.  

 The words of legal fiction – as if the accident had occurred in the Great Britain – were held merely to extend the existing scope of the MIB’s compensatory liability, not to set out the basis for assessment of loss.

 So, Brexit may be coming some day, but this doesn’t stop their Lordships liking their law nice and tidy. Anomalies are bad, even if Moore-Bick could live with them.


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