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The Forum of Complex Injury Solicitors (FOCIS) Response to the Vnuk Consultation


FOCIS welcomes the opportunity to comment in response to the DfT's consultation.

We consider that UK law should be brought in line with the European Motor Insurance Directive 2009/103/EC (the'Directive'). There are long standing discrepancies which largely reflect the UK's implementation of the Directives (and its predecessors) by reference to the liability of the driver of a vehicle towards third parties and the requirement of compulsory insurance for defined risks. This contrasts with the Directives' wider aim of an overarching insurance scheme for compensating all third parties injured by vehicles (except the passenger who knows (s)he is being carried in a stolen vehicle) and which in important respects the UK implementation has not achieved.

We consider that these discrepancies should be cured irrespective of the ultimate terms of Brexit and the long term fate of EU Directives within UK law because:

i) The interests of the injured third party should be paramount;

ii) The RTA Insurers and Motor Insurers Bureau are well placed to ensure that there isa sufficient pool of insurance money to meet the needs of injured third parties principally by adjusting premiums paid;

iii) The DfT is able to define what risks must be covered by such an insurance pool;

iv) Where there is bound to be substantial trade and travel between Europe and the UK there is merit in the consistency of insurance cover third parties are entitled to expect when they are involved in cross-border accidents. 

In our Response we focus on the interests of the third party who has suffered serious injuries, because of his primacy within the Directive. We leave to others to respond on behalf of those who have sustained only damage to his/her possessions.

Vnuk highlighted instances where a third party injured within the UK is at real risk of having no effective recourse to insurance monies because of the restrictions within the Road Traffic Act 1988 and the terms of the Motor Insurance Bureau Agreements. Other recent cases such as Churchill v Wilkinson (where the Claimant was successful before the ECJ) and EUI and Sahin (where the Claimant was unsuccessful before our domestic courts) highlighted other instances. The lack of recourse in the scenarios highlighted in these cases isat odds with the Directive.

In our submission there is much to be said for a fundamental redrafting of the RTA and MIB Agreements so that the approach of the Directives is fully and consistently adopted in a clear and concise manner that is understandable by members of the public.

In the absence of that root and branch approach and restricting ourselves to the impact of the Vnuk decision, we consider much can be achieved by addressing those factual circumstances where there is a real chance that a Claimant may not, but ought to, have effective recourse. Specifically:

i) A third party may be injured wherever he/she encounters a motorised vehicle. We consider this means compulsory insurance should extend to all public places (to include car parks, footpaths and bridleways, pedestrianised areas and so on)that members of the public are legally entitled to enter/use, even if on privately owned land. We do consider that Vnuk goes too far by an automatic extension to all private places. In our view those private places should be excluded where to gain access the third party must overcome a physical barrier and have reasonable grounds for believing that he/she is trespassing.

ii) Any motorised vehicle which might cause injury to a third party should be included.We consider that it is the potential for injury which should be central rather than whether it is fit to be driven on the road or some other definition. The category of motorised vehicles has evolved and will continue to evolve and the new provisions should allow for that (for example in our view a bicycle with a motorised dynamo should be covered and such would not have been contemplated perhaps 10 years ago). Arguments that some motorised vehicles carry little risk of injury should be addressed in terms of the premium payable.

iii) Compulsory insurance should attach to the use of the vehicle itself rather than be attached to the driver of the vehicle. It should address all civil liabilities which might be owed to the injured third party and so importantly extend beyond negligent driving and encompass product liability and use of 'driver-less'vehicles (we append a further copy of our response to the recent consultation on the Pathway to driverless vehicles). It should extend to all use of the vehicle unless it were clearly not intended for such, for example deliberately running down a third party in which case the liability to indemnify would fall to the MIB.

We hope that these comments prove of assistance and would be very happy to elucidate further if that might be of assistance.

Below we provide answers to the DfT's questions as posed in its consultation paper on this subject.

Q1) Due to the uncertainty, do you think that the Government should add either a sunset clause or a review clause in any new Regulations stemming from this consultation? Why? 

It is not necessary to add either a sunset or review clause in any new Regulations. The European Motor Insurance Directive is already comprehensive enough. Any new laws that the Government now makes should be capable of remaining in force beyond Brexit.

 Q2) Leaving the EU allows us to look afresh at our overall policy aims on motor insurance. What are your views on the approach the UK should seek to take once we leave the EU?

UK law should be brought in line with the European Motor Insurance Directive. The current discrepancies mean that the Directive is not achieving its aim here in the UK of providing an overarching insurance scheme for compensating all third parties injured by vehicles.

 Q3) Compared with the current position do you believe if the domestic law on motor insurance changed in line with the comprehensive option it would be better or worse? Why?

We argue that Vnuk goes too far in automatically extending the compulsory insurance requirement to all vehicles in private places. We therefore think that domestic law should be changed in line with the amended Directive option rather than the comprehensive option. 

Q4) Which of the Commission's four suggestions do you believe would be best for amending the Directive? Why?

We have provided our own views on how the Commission should amend the Directive above.

Q5) If the Directive was amended so insurance was required when vehicles are used in traffic when compared to the comprehensive option would this make it better or worse? Why?

Our views on how the Commission should amend the Directive are largely in line with the proposal that insurance be required when vehicles are used in traffic,subject to a few refinements.

Provided that the interests of third parties who have suffered serious injuries as a result of road traffic accidents are the focus of any amendments, this will bean improvement of our current domestic position. 

Q5) If the Directive was amended so insurance was required when vehicles are used in traffic when compared to the comprehensive option would this make it better or worse? Why?

Our views on how the Commission should amend the Directive are largely in line with the proposal that insurance be required when vehicles are used in traffic,subject to a few refinements.

Providedthat the interests of third parties who have suffered serious injuries as aresult of road traffic accidents are the focus of any amendments, this will bean improvement of our current domestic position. 

Q5) If the Directive wasamended so insurance was required when vehicles are used in traffic whencompared to the comprehensive option would this make it better or worse? Why?

Ourviews on how the Commission should amend the Directive are largely in line withthe proposal that insurance be required when vehicles are used in traffic,subject to a few refinements.

Providedthat the interests of third parties who have suffered serious injuries as aresult of road traffic accidents are the focus of any amendments, this will bean improvement of our current domestic position. 

Q6) What do you thinkwould be the effects in particular areas of the UK of using as the basis forcompulsory insurance "areas where the public has access in accordance withnational law"?

Wedo not have any comments other than that the definition of public areas shouldinclude car parks, footpaths and bridleways, pedestrianised areas and any otherspaces that members of the public are legally entitled to enter or use, even ifon privately owned land.

Q7) Do you thinkgovernment should make use of the power available to derogate certain vehiclesin the comprehensive option or amended Directive option? 

Giventhat we are proposing the exercise of the amended Directive option whichalready excludes those vehicles operated in areas inaccessible to the public, wedo not think there is any need for the Government to derogate certain vehicles.

Q8) Which factorsprovide the most suitable basis for deciding which types of newly-in-scopevehicles to derogate?

Weare opposed to derogation and so do not have any comments. 

Q9) What do you thinkare the main enforcement challenges - and how do you think we should deal withthem - in the comprehensive option or amended Directive option?

Wedo not have any comments.

 Q10) Should a centralregister of every newly-in-scope vehicle be maintained?

Acentral register of every newly-in-scope vehicle should be maintained. 

Q11) Who should maintainthe register?

TheGovernment should be responsible for maintaining the register. 

Q12) Is it important forall newly-in-scope vehicles to have a traceability marking for thecomprehensive option or the amended Directive option? 

Allnewly-in-scope vehicles should have a traceability marking for the amendedDirective option. This will ensure that they are readily identifiable and notbeing used for unlawful purposes. 

Q13) Should all SORNvehicles be required to have third party insurance under the comprehensiveoption?

Ifthe comprehensive rather than amended Directive option is adopted, then allSORN vehicles should be required to have third party insurance. 

Q14) Would there beproblems with SORN under the amended Directive option?

Wedo not envision any problems with SORN under the amended Directive option.

Q15) Should the samelevel of fine apply in respect of newly-in-scope vehicles as currently appliesto cars?

Thesame level of fine should apply in respect of newly-in-scope vehicles as thatwhich currently applies to cars. 

Q16) to Q24)

We have no comments to add. 

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