Court of Appeal find MIB liability extends to vehicles driven on private land – Lewis v Tindale, MIB and another

Judgement in this case was handed down by the Court of Appeal on 5 June 2019.

The Court of Appeal upheld the earlier decision of Mr Justice Soole that the Motor Insurers Bureau (MIB) were liable to compensate the claimant (Mr Lewis) under their Uninsured Driver’s Agreement, even though the vehicle was being driven on private land.

Mr Lewis had suffered serious injuries when he was struck by an insured 4 x 4 vehicle. He obtained judgement against the driver and at first instance the MIB were found to be liable to compensate the claimant.

The MIB appealed on the basis that their compensatory obligations did not extend to the use of vehicles on private land.

The Court of Appeal judgement, delivered by Lord Justice Flaux, upheld the earlier decision on the following basis:

• the government had failed to fulfil its obligation under Article 3 of the 2009 Directive to ensure that civil liability in respect of the use of motor vehicles on private land was the subject of a scheme of compulsory motor insurance. This obligation was clear following the judgements of the European Court in Vnuk v Zavarovalnica Triglav dd (C-162/13) EU:C:2014:2146, Andrade v Proença Salvador (Case C-514/16) [2018] 4 WLR 75 and Nunez Torreiro.
• The government had also failed to comply with its obligation under Article 10 of the Directive to assign responsibility for meeting that liability to an appropriate compensatory body.
• Article 3 was unconditional and precise, and so capable of having direct effect. As Article 3 and Article 10 were co-extensive, Article 10 was also capable of having direct effect.
• Following the judgment of the CJEU in Farrell v Whitty (No 2), it was clear that the compensatory body to be established under Article 10 was intended to protect and compensate victims by remedying the failure of the Member State to fulfil its obligation to ensure that civil liability in respect of the use of motor vehicles was covered by insurance.
• As the CJEU jurisprudence (see Vnuk and others above) made clear, that obligation included the use of vehicles on private land.
• It was accepted by the MIB that it was to be regarded as an emanation of the state and the UK’s Article 10 body.
• Accordingly, the MIB, albeit a private law body, had had conferred on it by the UK government the task of remedying the failure of the government to institute in full a compulsory insurance regime for vehicles used on private land, even if this was outside the level of responsibility agreed contractually between the MIB and the government.
• The MIB was thereby required to provide compensation to the claimant.

Although a number of insurance firms have already expressed their concerns as to the enormous financial pressure this decision will place on the MIB, Lord Justice Flaux was clear in his opinion:

 “The suggested distinction between the use of a motor vehicle on a road or other public place and the use of a motor vehicle on private land is, at least on the facts of the present case, a wholly artificial one.”

He concluded that the MIB’s refusal to pay up breached the UK’s “unconditional and precise” obligations under European law.

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