The Law of Compulsory Motor Vehicle Insurance

Description

The Law of Compulsory Motor Vehicle Insurance covers motor vehicle compulsory liability insurance in a broad context by putting emphasis on the fundamental principles unique to this type of insurance, their operation together with the general principles of law, and the interventions of the relevant EU Directives and CJEU decisions. The law regarding motor vehicle liability insurance is ever-evolving, fast-developing and offering more intellectual challenges as the disputes vary every day. This book examines the principles applicable in this area of law by studying the grounds where the rules derive from and their continuing developments over decades at both domestic and EU levels. Whilst doing so it also discusses whether the sources of the current applicable law, in several different motor vehicle compulsory insurance related issues, are in line with each other. The book also presents careful analyses of the interplay between the different sources of law, detailed discussions on what the law should be in order to provide consistency amongst the rules and principles identified, and how solutions to newly emerging issues can be found. The regime applicable in this area is overcomplex. This book will be valuable reading for any lawyer, whether academic, practitioner or student who would like to understand the insurance cover required for compulsory motor vehicle third party liability insurance together with the rationale for adopting such rules and their interpretation by the Courts. Cover Half Title Series Page Title Copyright CONTENTS DETAILED CONTENTS Preface Table of cases Table of EU legislation Table of UK Statutes Table of UK statutory instruments CHAPTER 1 BRIEF HISTORY OF THE INSURANCE OBLIGATION AND INTERACTION WITH THE EU LAW Introduction History (domestic law) Third Parties (Rights Against Insurers) Act 1930 Objectives of motor third party liability insurance The EU regime A Member State’s liability for a failure to implement a Directive Limitation period The principle of “consistent interpretation” Direct effect CHAPTER 2 THE INSURANCE OBLIGATION: OVERVIEW Obligation to insure under the Road Traffic Act 1988 Obligation under EU Directives Strict liability Burden of proof Certificate of insurance Keeping a record of the certificate When a vehicle does not meet insurance requirements Void and voidable insurance contracts Contracts with an exclusion clause No obligation on the insurer to accept insurance proposals Exceptions to compulsory insurance or security EU law CHAPTER 3 INSURANCE OBLIGATION: SCOPE (MEANING OF “PERMIT,” “CAUSE,” “MOTOR VEHICLE,” “ROAD OR OTHER PUBLIC PLACE”) Permit and cause use Conditional permission Death of the person who gave the permission The offender A person using the vehicle in the course of employment The meaning of “permit” under RTA section 151(8) Extension clauses – permitted users for the scheduled vehicle Continuing ownership Double insurance, contribution and rateable proportion clauses Motor vehicle EU law Road or other public place Road “On” the road Public access A definable way between two points Car parks “Other public place” Offences other than RTA s 143 Beaches EU law Compatibility with the EU law CHAPTER 4 REQUIREMENTS WITH RESPECT TO THE INSURANCE POLICY: FORM AND SCOPE Insurer Policy document Deregulation Act 2015 The 2002 Regulations Transfer Risks that are not required to be covered EU law: minimum amount of indemnity The position of employees RTA 1988 section 145(4A) Employee driver Meaning of “carried” Insurance of an exempted institution Vicarious liability Subrogation in employment cases Issues to be covered by section 145 Personal injury Non-material damages Who can claim compensation for non-material damages? Injury to the person who was actually using the vehicle Passengers The owner when injured as a passenger in their own vehicle “Any liability” arising out of the use of the vehicle CHAPTER 5 THE MEANING OF “USE” OF A VEHICLE Significance of defining the term “use” Meaning “Use” is not confined to “drive” Causation Normal function of the vehicle Is “normal function” of a vehicle confined to use as a means of transport? EU law Reconciling domestic and EU law “Moving” a motor vehicle Immobility Towage Driver has no control of the vehicle towed Vehicle not used under its own power Is a passenger a user? Common law Controlling, managing or operating the vehicle Joint venture Person accepting a lift Pre-determined joint purpose Having “control or management” through ownership interest EU law CHAPTER 6 CIVIL LIABILITY Introduction Is breach of statutory duty actionable? Motor insurance The nature of liability Causation The owner is a passenger in his own vehicle Exclusions from cover The user must be impecunious Interpretation of “permit” and “cause” The effect of avoidance of the insurance contract No extension to section 143(1)(a) Monk v Warbey liability and the MIB Economic loss Limitation period CHAPTER 7 CONTROL OF POLICY TERMS Insurer v third party victim Domestic law Conditions identified under section 148(2) Passengers Passenger’s contribution to the accident Insurers’ liability to the assured where policy contains s 148 limitations Terms that are not relevant to actual loss (IA 2015 s 11) Suspensory conditions Conditions and conditions precedents after the IA 2015 Restrictions referred to under the RTA 1988 s 148(2) Conditions in relation to driving license Claims provisions Notification provisions “As soon as possible” Claim co-operation clauses What is insured under compulsory motor third party liability insurance? Permitted exclusions from cover RTA 1988 section 145(4) Social, domestic, pleasure purposes The essential character of the journey Borderline cases Multiple characters of the journey Motive to determine the essential character of the journey Incidental deviations Hire and reward Car-sharing arrangements Definition of assured The EU dimension Minimum coverage The victim is the owner of the vehicle (1) Owner is the driver injured by their own negligence (2) Owner is a passenger and the driver is a person covered by the owner’s insurance (3) Owner is a passenger and the driver is not covered by the owner’s insurance (4–6) Owner is a pedestrian Single premium Exclusions for assured’s deliberate act Arbitration clauses Void or voidable contracts Unfair terms CHAPTER 8 THIRD PARTY VICTIM’S RIGHT OF DIRECT ACTION AGAINST INSURERS The regime under section 151 of the RTA 1988 Delivery of certificate Liability covered by section 151(2) Section 151(2)(a) Section 151(2)(b) Unlicensed driver exclusion – section 151(3) Excluded liability – section 151(4) Stolen or unlawfully taken The state of mind under section 151(4) Knew Had reason to believe Ex turpi causa Policy restrictions and section 151 A claim through the assured or through section 151 Permitted exclusions Monk v Warbey liability and section 145 of the RTA 1988 Right of recourse Insurer’s right of recourse against the owner who was a passenger A judgment against an untraced driver and a section 151 claim Notifying the insurer of the action against the assured Timing Formality and the content of the notice Bringing of the proceedings Is mere contact sufficient? Waiver Cancellation of the policy Stay of execution Seeking declaration to avoid the insurance contract Motor Insurers’ Bureau Articles of Association, Article 75 Notification of the third party claimant Section 152 and EU law Discretion on the court to set aside a default judgment Primary direct actions against insurers under the EU law CHAPTER 9 CREDIT HIRE AGREEMENTS General principles of claiming damages when a vehicle is damaged Cost of repair Cost of hire Car hire Legal statutes of credit hire agreements Champerty and public policy considerations Contingent liability Mitigation point Calculating damages Assessing the basic hire rate Impecuniosity Failure to mitigate the loss Failure to examine the insurance documents Proof of a need for a replacement vehicle Offer for a replacement vehicle by the defendant’s insurer Delay in arranging a repair Claimant’s no claim discount Where the claimant did not pay for the cost of hire himself Fruit of the claimant’s own insurance and insurer’s subrogation Insuring the credit hire charge Ex turpi causa Different forms of arrangement CHAPTER 10 MOTOR INSURERS’ BUREAU The Motor Insurers’ Bureau Agreements Uninsured Drivers Agreement Untraced Drivers Agreement EU Directives The legal status of the MIB Agreements Is the MIB an emanation of the state? Is the MIB independent of its members insurers? Where the MIB is unnecessarily involved Untraced or Uninsured Drivers Agreement Uninsured Drivers Agreement Scope Relevant liability Unsatisfied judgment Authorities excluded Other sources of recovery The 2017 Supplementary Agreement Passengers Withdrawn consent RTA s 151(8) Where a claim is made by the dependants Duties of the claimant MIB’s response Untraced Drivers Agreement Scope Joint liability of identified and unidentified persons Other sources of recovery Damage to property Passengers Duties of the claimant Compensation Costs Dispute resolution Set-off Enforcement of payment The nature of claim against the MIB Defences available to the MIB Stolen vehicles The meaning of “knew” in the context of the Directives The law subsequent Insurer’s insolvency Does the MIB protect the vehicle users? Relying on a Directive in a claim against the MIB? CHAPTER 11 INJURIES SUFFERED IN THE EU Implementation of the Fourth Directive Entitlement to compensation where the insurer is identified Compensation body’s response Vehicle or insurer is not identified Level of compensation – applicable law Jurisdiction matters Green Card CHAPTER 12 THE PUBLIC POLICY DOCTRINE Various applications of the doctrine Limitations to the doctrine Life insurance references Careless driving and ex turpi causa Joint illegal enterprise Turpitude Mental element Causation Turpitude not found – contributory negligence The nature of claims against MIB and public policy Claim against insurers under the 2010 Act Vehicles used in the course of a crime CHAPTER 13 INSURANCE OF AUTOMATED VEHICLES Automated vehicles defined by the Act Liability Defences available for the insurer Contributory negligence Software Subrogation Motor Insurers’ Bureau Index