David Knifton QC in landmark Court of Appeal ruling on MIB’s liability for accidents on private land

June 6, 2019

David Knifton QC and Philip Moser QC acted for the Claimant, instructed by David Gauler of Thompsons Solicitors.

In a landmark ruling, the Court of Appeal handed down the keenly-awaited judgment in MIB v Lewis [2019] EWCA Civ 909, concerning the liability of the MIB for accidents involving uninsured vehicles on private land. In a unanimous decision, the Court ruled that the provisions of Articles 3 and 10 of the Sixth EU Motor Insurance Directive (2009/103/EC) could be relied upon by an individual as having direct effect against the Motor Insurers’ Bureau, as an emanation of the State. As a consequence, victims of accidents caused by uninsured vehicles will have a right to seek compensation from the MIB, even where the accident occurred on private land, and hence fell outside the scope of the compulsory insurance requirements of Part VI of the Road Traffic Act 1988 (RTA), which are limited to the use of a vehicle on a road or other public place.

The decision arose out of a tragic accident in June 2013. Mr Lewis, who was then aged 67, was walking with 2 friends on private farmland in Lincolnshire. Mr Tindale, a local farmer, erroneously assumed that Mr Lewis had been up to no good in the vicinity of his farm premises. As a result, he pursued Mr Lewis and his friends, driving a 4×4 Nissan Terrano, which was not insured. He drove the vehicle along a public road and footpath along which Mr Lewis and his friends had walked, before driving down an embankment, through a barbed wire fence, and into a field. He drove across the field around a marshy area and into collision with Mr Lewis, who suffered a spinal cord injury which has left him tetraplegic, together with brain damage. He is permanently disabled and has a very limited life expectancy.

Mr Tindale was prosecuted for causing grievous bodily harm with intent, contrary to s.18 of the Offences Against the Person Act 1861, but was acquitted at trial, having maintained that the collision with Mr Lewis was accidental, rather than intentional.

Mr Lewis brought a claim for damages against Mr Tindale. Since the latter had no funds, the MIB was joined to the action. They denied liability to meet any judgment obtained against Mr Tindale, on the basis that the accident occurred on private land. As such, it was not a “relevant liability” under the terms of the Uninsured Drivers Agreement 1999, which is defined as “a liability in respect of which a contract of insurance must be in force to comply with Part VI of the 1988 Act”.

In a trial of preliminary issues at the High Court in Birmingham, Soole J had to consider whether the injuries “arose out of” the use of the vehicle on a road or other public place, on the basis that Mr Tindale had driven the Nissan on a road and a public footpath in order to reach the field. However, the judge considered himself bound by previous authority (Inman v Kenny [2001] EWCA Civ 35 and Clarke v Clarke [2012] EWHC 2118) to find that the use of the vehicle on the road before taking the deliberate course of entering the field was “no more than a merely fortuitous concomitant of the accident, and in no way a contributing factor.” He went on to conclude that the Act could not be read down to comply with the decision of the Court of Justice of the European Union (CJEU) in Vnuk v Zavarovalnica Triglav dd (Case C-162/13) [2016] RTR 10, in which it was held that the compulsory insurance obligation in Article 3 of the 2009 Directive applied to any use of a vehicle consistent with its normal function, including use on private land. Soole J held that any attempt to read down s.143 and s.145 of the RTA so as effectively to excise the words “on a road or other public place” would go against the grain and thrust of the legislation, would raise policy ramifications which were not for the Court, and would impose retrospective criminal liability under s.143 for the use of uninsured vehicles on private land. His judgment on that issue has since been expressly approved by the Supreme Court in R & S Pilling v UK Insurance Ltd [2019] UKSC 16 at [40].

However, Soole J accepted arguments from David Knifton QC and Philip Moser QC on behalf of the Claimant that the provisions of the 2009 Directive were capable of having direct effect between an individual and a State or an emanation of the State, as was established by the CJEU in Farrell v Whitty (No. 1) (Case C-356/05). Although it had previously been held that the MIB was not an emanation of the State (see Mighell v Reading [1999] Lloyd’s Rep IR 30; Byrne v MIB [2007] EWHC 1268 (QB)), it was now authoritatively established by Farrell v Whitty (No. 2) (Case C-423/15) that a private law body must be treated as comparable to the State where it had been delegated to perform a task in the public interest and had been given special powers for that purpose.

The MIB appealed against those findings, arguing that the task which had been delegated to the MIB was limited to meeting judgments where compulsory insurance was required under the RTA, rather than the broader obligation under the 2009 Directive. It sought to persuade the CA that neither Article 3 (which requires Member States to take all appropriate measures to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance) nor Article 10 (which requires Member States to set up a body to provide compensation for injuries caused by an uninsured vehicle) of the 2009 Directive were “unconditional”, so as to be capable of having direct effect. The MIB suggested that those provisions gave the Government a discretion as to their implementation.

The CA resoundingly rejected those arguments. It held that the UK Government had failed to fulfil its obligation under Article 3 by establishing a scheme of compulsory insurance covering the use of vehicles on private land, and had likewise failed to comply with its Article 10 obligation to assign responsibility for meeting that liability to the MIB. More significantly, the CA regarded the decisions of the CJEU in Farrell v Whitty as indistinguishable from the present case, such that the provisions of the Directive were capable of having direct effect, and could be relied upon by an individual against the MIB as an emanation of the State.

Commenting on the decision, David Knifton QC said: “I am delighted that the Court of Appeal has decisively rejected the MIB’s attempts to deny compensation to Mr Lewis. The European Court has consistently endeavoured to ensure that innocent victims of motor vehicle accidents have a right to compensation, either from an insurer or from a body such as the MIB. To have denied such a remedy to Mr Lewis would have left the law in a wholly unsatisfactory state. In the current climate of debate regarding Brexit, this case serves as an important reminder of the significant contribution which EU law has made to the protection of injury victims, whether in the field of accidents at work or motor accidents. I sincerely hope that the MIB will now take steps to ensure that Mr Lewis receives the compensation he so desperately needs to meet the effects of his catastrophic injuries.”

To read the CA judgment in full, click here.