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Clarifying the Concept of Victim in the Motor Vehicle Drivers' Liability Insurance: The ECJ's Judgment in Case C-442/10

Published online by Cambridge University Press:  20 January 2017

Vadim Mantrov
Vadim Mantrov*
Affiliation:
Rozenfelds & partners,
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Abstract

Case C-442/10, Churchill Insurance Company Limited v Benjamin Wilkinson and Tracy Evans v Equity Claims Limited [2011] ECR I-00000

Article 3 No. 1 of Council Directive on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability, as amended, codified and repealed by Directive 2009/103/EC, OJ L - 103, of 02.05.1972. pp. 1–6. [First Motor Insurance Directive]

Article 2 No. 1 of Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, as amended, codified and repealed by Directive 2009/103/EC, OJ L – 8, of 11.01.1984. pp. 17–20. [Second Motor Insurance Directive]

Article 1 No. 1 of Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, as amended, codified and repealed by Directive 2009/103/EC, OJ L – 129, of 19.05.1990. pp. 33–35. [Third Motor Insurance Directive]

Type
Case Notes
Information
European Journal of Risk Regulation , Volume 3 , Issue 2 , June 2012 , pp. 257 - 260
Copyright
Copyright © Cambridge University Press 2012

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References

1 See for liability insurance, for instance, Birds, John, Modern Insurance Law, 7 th ed. (London: Sweet & Maxwell, 2007), pp. 360–378 Google Scholar.

2 See Merkin, Robert M. and Stuart-Smith, Jeremy, The Law of Motor Insurance (London: Sweet & Maxwell 2004), pp. 15–32 Google Scholar; Birds, Modern Insurance Law, supra note 1, 379 et sqq. For the U.S. regulation, see generally Jerry, Robert H. II and Richmond, Douglas R., Understanding Insurance Law, 4th ed. (Newark, NJ: Lexis Nexis, 2007), at p. 953 et sqq Google Scholar.

3 See Merkin, Robert M. and Stuart-Smith, Jeremy, The Law of Motor Insurance (London: Sweet & Maxwell, 2004), pp. 15–32 Google Scholar (in case of the Fifth Motor Insurance Directive described its proposal as this Directive was not adopted at the moment of publishing this book).

4 Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect to the use of motor vehicles, and the enforcement of the obligation to insure against such liability [Codifying Motor Insurance Directive], OJ 2009 L 263/11.

5 Council Directive on the approximation of the laws of the Member States relating to insurance against civil liability in respect to the use of motor vehicles, and to the enforcement of the obligation to insure against such liability, OJ 1972 L 103/1 [First Motor Insurance Directive].

6 Case C-348/98, Vitor Manuel Mendes Ferreira and Maria Clara Delgado Correia Ferreira v Companhia de Seguros Mundial Confiança SA, [2000] ECR I-06711, at para. 25. Affirmed by the ECJ in the discussed case (see infra note 9, at para. 28).

7 Comprising “all passengers, other than the driver, arising out of the use of a vehicle” as well as “pedestrians, cyclists and other nonmotorised users of the roads” injured in an accident (Article 1 and 1a of the Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect to the use of motor vehicles, OJ 1990 L 129/33 [Third Motor Insurance Directive]).

8 Case 537/03, Katja Candolin, Jari-Antero Viljaniemi and Veli-Matti Paananen v Vahinkovakuutusosakeyhtiö Pohjola and Jarno Ruokoranta, [2005] ECR I-05745 , at para. 32.

9 Case C-442/10, Churchill Insurance Company Limited v Benjamin Wilkinson and Tracy Evans v Equity Claims Limited, [2011] ECR I-00000.

10 Herewith and further on the following sources are used without further referring to them: Churchill Insurance Company Ltd v Wilkinson & Ors [2010] EWCA Civ 556; supra note 9, paras. 13–18.

11 Road Traffic Act 1988, 1988 CHAPTER 52, available on the Internet at <http://www.legislation.gov.uk/ukpga/1988/52/contents> (last accessed on 16 April 2012).

12 Merkin and Stuart-Smith, The Law of Motor Insurance, supra note 2, at p. 345; see also Merkin, Robert, Colinvaux's Law of Insurance, 8 th ed. (London: Sweet & Maxwell, 2006), pp. 789–790 Google Scholar.

13 Manchester District Registry, Queen's Bench Division and Wallsall County Court.

14 Article 2(1), first subpara. of the Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect to the use of motor vehicles, OJ 1984 L 8/17 [Second Motor Insurance Directive].

15 Supra note 9, at para. 25.

16 Supra note 9, at para. 26.

17 Ibid., at para. 26.

18 Ibid., at para. 19.

19 Opinion of Advocate General Mengozzi in Case 442/10 Churchill Insurance Company Limited v Benjamin Wilkinson and Tracy Evans v Equity Claims Limited, [2011] ECR I-00000.

20 Supra note 19.

21 See para. 53 of the Opinion of Advocate General (supra note 19) and paras. 44 and 50 of the ECJ's judgment (supra note 9).

22 Supra note 9, at para. 36.

23 Ibid., at para. 38. The similar conclusion was stated previously by the ECJ in the case 537/03 (see supra note 8, at para. 23).

24 Supra note 9, at para. 41.

25 Ibid., para. 40, see also paras. 43–44.

26 Supra note 9, at para. 47.

27 Ibid., at para. 46.

28 In the ECJ's Candolin case (supra note 8), Finland's national law permitted the refusal or limitation of compensation to victims, when those victims had contributed to causing the damage or injury: the owner of the vehicle entered a motor vehicle as a passenger even though he or she was aware that the driver was drunk (see supra note 8, at paras. 10–11). As correctly pointed out, the discussed case “bear[s] a strong resemblance to those in Candolin and Others” (supra note 19, at para. 20), and it is not a surprise that this case was broadly cited in the ECJ's judgment here (supra note 9, paras. 27, 29–30, 33–35, 48–49 of the ECJ's judgment in the discussed case).

29 For the first party and third party insurance, see Jerry and Richmond, Understanding Insurance Law, supra note 2, at pp. 43–44.

30 Merkin and Stuart-Smith, The Law of Motor Insurance, supra note 2, at p. 346.

31 Robert Merkin, Colinvaux's Law of Insurance, supra note 12, at p. 789. It should be noted that by this reasoning the insured will never be the same person as the victim in the liability insurance (similar as in life insurance); otherwise, liability insurance (as well as life insurance) would not be capable of functioning and such insurance contracts would be void ex tunc.

32 See Merkin and Stuart-Smith, The Law of Motor Insurance, supra note 2, at pp. 346–347 (including the case law cited).

33 Which can be covered “if the policy itself so provides” (Merkin and Stuart-Smith, The Law of Motor Insurance, supra note 2, at p. 22); see also: Robert Merkin, Colinvaux's Law of Insurance, supra note 12, at p. 789.

34 It shall be separated from the situation when neither of the drivers is liable and, as a result, civil liability is apportioned in accordance with the contribution of each of the drivers to the damage (Case 484/09 Manuel Carvalho Ferreira Santos v Companhia Europeia de Seguros SA [2011] ECR I-00000, at para. 43 et sqq.).

35 Supra note 9, at para. 31.

36 The UK authors admitted that “if the passenger is himself the owner of the vehicle [or a motor vehicle driver named in the insurance contract] who is injured by the negligent use of the vehicle by another, the owner must as a passenger be covered by the user’s cover” (Robert Merkin, Colinvaux's Law of Insurance, supra note 12, at p. 789).

37 See, for instance, Robert Merkin, Colinvaux's Law of Insurance, supra note 12, pp. 71–72, 800–801.

38 Supra note 19, at para. 1.

39 Merkin and Stuart-Smith, The Law of Motor Insurance, supra note 2, at p. 345.

40 This problem is well-known because the ECJ itself recently admitted that the disparities continued to exist between the laws of the Member States as regards the extent of the obligation to insure (supra note 34, at para. 26). Therefore, as the ECJ pointed out, the Member States are free to determine the rules of civil liability applicable to road accidents (supra note 34, at para 32).