Damages for accident in Spain involving uninsured driver should be assessed in accordance with English law.
In 2007, Mr Jacobs, a British national resident in the UK, was seriously injured in a road traffic accident in Spain, when he was struck by a car driven by an uninsured driver. Mr Jacobs claimed compensation from the Motor Insurers’ Bureau (MIB) in England under the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003. Regulation 13(2)(b) provided that the MIB would “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.”
At first instance it was held that Rome II applied to determine the applicable law, which was held to be that of Spain. Mr Jacobs appealed.
The appeal was successful. The Court of Appeal held that damages should be assessed in accordance with English law, on the following basis:
- Regulations 11 and 12 place an obligation on the MIB to indemnify an injured person who is resident in England if they can prove an identified and insured driver is liable to them in respect of an accident abroad. The need to demonstrate liability on the part of the driver requires the court to consider what law governs that issue. In most cases Article 4(1) of Rome II will apply, and this issue will be determined by reference to the law of the country in which the accident occurred. However, in relation to the determination of the assessment of damages, the inclusion of reference to the laws applying in England in Regulation 12(4)(b) obliges the MIB to pay compensation assessed in accordance with English law.
- Regulation 13 is specific to a person’s entitlement to compensation where the vehicle or insurer is not identified, as in Mr Jacob’s claim. Regulation 13(2)(b) carries with it the implicit proviso that the injured party must be able to show that the driver is liable to them by reference to the applicable law. As in the case of Regulation 12, Rome II will apply and this will normally lead to the application of the law of the country in which the accident occurred.
- However, different systems of law may govern different questions raised by the same claim. Having regard to the wording of Regulation 13(2)(b), compensation should be assessed on the basis that the accident occurred in Great Britain. This has the incidental merit of ensuring that the measure of compensation recoverable under Regulation 13 is likely to be broadly the same as that recoverable under Regulation 12.
- Regulation 13(2)(b) is not a choice of law clause, as it is concerned with defining the existence and extent of the MIB’s obligation as the body appointed to provide compensation for injury suffered in road traffic accidents rather than with determining the liability of the wrongdoer. On this basis, Rome II has no application to the assessment of the compensation payable by the MIB under Regulation 13.
The issue raised in this case is important to the parties, not least because awards of damages under Spanish law are often considerably less than those under English law. If compensation under English law is more favourable than that available in other EU member states, claimants are likely to seek to bring their claims here. The difficulty for the MIB is that they will potentially not be able to recover all the compensation paid from the guarantee fund of the member state where the accident occurred. This will obviously be of concern both to the MIB and to the insurers who fund it.