Marshall v The Motor Insurers' Bureau & Ors [2015] EWHC 3421 (QB)

[2015] EWHC 3421 (QB)Case No HQ13X04542 AND HQ14P04884
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/11/2015
Before
MR JUSTICE DINGEMANS
Between
Gillian Marshall (widow and administratix of the estate of Paul Marshall, deceased)Claimant(1) The Motor Insurers’ BureauDefendants(2) Christopher PickardDefendant(3) Generali France Assurances (a company incorporated in accordance with the laws of the French RepublicDefendantChristopher PickardClaimantThe Motor Insurers’ BureauDefendant
Sarah Crowther (instructed by Barratt Goff & Tomlinson) for Claimant in the first actionHugh Mercer QC and Marie Louise Kinsler (instructed by Weightmans LLP) for First Defendant in the first actionPierre Janusz (instructed by DWF LLP) for Second Defendant in the first actionCharles Dougherty QC (instructed by Trethowans LLP) for Third Defendant in the first actionMatthew Chapman (instructed by Irwin Mitchell) for Claimant in the second actionHugh Mercer QC and Marie Louise Kinsler (instructed by Weightmans LLP) for Defendant in the second actionHearing Hearing dates: 16, 17, 18, 19 and 20 November 2015
Judgment

Introduction

[1]On 19th August 2012 an uninsured Peugeot motor car registered in France driven by Cindy Bivard (“Ms Bivard”), a French national, hit Mr Paul Marshall (“Mr Marshall”) and Christopher Pickard (“Mr Pickard”), both British nationals, as they were standing behind a Ford Fiesta motor car and its trailer, while it was being attended to by a breakdown recovery truck on the side of a motorway in Thiais, Paris, France. The Ford Fiesta motor car was registered in the UK and insured by Royal & Sun Alliance (“RSA”), and the recovery truck was registered in France and insured by Generali France Assurances (“Generali”). The Peugeot then collided with the trailer shunting it into the Ford Fiesta which in turn was shunted into the vehicle recovery truck. Mr Pickard was thrown forward and landed clear of the vehicles but suffered serious injuries. Mr Marshall’s head hit the windscreen of the Peugeot and he ended up with his leg trapped underneath the trailer, and he died at the scene. This is the hearing of a preliminary issue pursuant to the order of Master Leslie dated 17th February 2015.[2]This case raises points about:(1) the law applicable to an accident involving a number of persons and vehicles which occurred in Thiais, Paris, France on 19th August 2012. This involves a consideration of article 4 of Regulation 864/2007 (“Rome II”);(2) the application of the Loi Badinter, Loi 85-677, enacted on 5th July 1985, (“the Loi Badinter”) to the facts of this case, if French law applies; and(3) the proper interpretation of regulation 13 of the Motor Vehicles (Compulsory Insurance)(Information Centre and Compensation Body) Regulations 2003 SI No. 37/2003, (“the 2003 Regulations”). The actions[3]Two actions were commenced. The first claim was made by Mrs Marshall against the Motor Insurers’ Bureau (“the MIB”), the First Defendant in the first action and the Defendant in the second action. Mrs Marshall relied on the 2003 Regulations. The 2003 Regulations make the MIB liable in respect of liabilities of compensation bodies in other EEA states for losses caused by uninsured drivers. The relevant compensation body in France responsible for such losses is the Fonds de Garantie (“FdG”). The MIB denied liability, contending that the FdG would not be liable to Mrs Marshall because under the Loi Badinter Mr Pickard and RSA, as driver and insurer of the Ford Fiesta, and Generali, as insurers of the recovery truck, were liable. By amendment Mr Pickard was added as Second Defendant, and Generali was added as Third Defendant.[4]The second action was brought by Mr Pickard against the Motor Insurers’ Bureau relying on the 2003 Regulations. The MIB deny liability and contend that Generali, as insurers of the recovery truck, are liable to Mr Pickard. There are also various Part 20 proceedings which have been stayed. The issues at this hearing[5]By order dated 17th February 2015 Master Leslie directed that certain preliminary issues should be tried. A statement of agreed facts was lodged.[6]I am very grateful to counsel and their respective legal teams for the excellence of their submissions and assistance in this case. It became clear from the Skeleton Arguments and the oral submissions before me that the formal preliminary issues give rise to three main areas of dispute. The first main issue is whether French or English law applies to the issue of liability for the claim made by Gillian Marshall (“Mrs Marshall”) against Mr Pickard, who is insured by RSA. RSA contend that English law applies to the issue of liability for the claim made by Mrs Marshall against Mr Pickard. I should record that it is common ground that the issue of the governing law for any assessment of damages against the MIB is not to be determined by me. This is because the issue was decided by the Court of Appeal in Jacobs v Motor Insurers’ Bureau [2010] EWCA Civ 1208; [2011] 1 All ER 844 which was followed by the Court of Appeal in Bloy & Ireson v Motor Insurers’ Bureau [2013] EWCA Civ 1543; [2014] Lloyd’s Rep IR 75. Those decisions were followed at first instance in Moreno v Motor Insurers’ Bureau [2015] EWHC 1002 (QB); [2015] Lloyds’ Rep 535 (QB), but a certificate for a leapfrog appeal to the Supreme Court was allowed and on 28th July 2015 the Supreme Court granted permission to appeal. This means that that separate issue will be determined by the judgment of the Supreme Court in Moreno.[7]The second main issue is if French law applies, whether the Ford Fiesta motor car and recovery truck are “involved” within the meaning of the Loi Badinter, which it is common ground is the applicable French statute. If those vehicles are “involved” it is common ground that RSA, as insurer of the Ford Fiesta, and Generali, as insurer of the recovery truck, are liable to Mrs Marshall, and that Generali, as insurer of the recovery truck, is liable to Mr Pickard.[8]The third main issue is whether the MIB is liable under the 2003 Regulations. If neither the Ford Fiesta nor the recovery truck were “involved” in the accident, it is common ground that the MIB would be liable to compensate Mrs Marshall and Mr Pickard. If however the Ford Fiesta and recovery truck were “involved” in the accident the MIB contends that it has no liability to either Mrs Marshall or Mr Pickard. This is because the MIB contends that its liability under the 2003 Regulations is “as if it were” the FdG. It is common ground that the FdG’s liability is subsidiary, meaning that if there is any road traffic insurer liable for the claims the FdG has no liability. Mrs Marshall and Mr Pickard contend that, on the proper interpretation of the 2003 Regulations, the MIB is liable because the preconditions set out in regulation 13 have been satisfied and regulation 13 provides that the MIB “shall compensate the injured party”. Governing law[9]It is common ground that the law applicable to the claims is to be determined by Rome II. This is because the accident occurred after 11th January 2009, see the judgment of the Court of Justice of the European Union (“CJEU”) in Homawoo v GMF Assurances SA [2011] ECR I-11603; [2012] I.L. Pr.2.[10]It is common ground that the recitals are a relevant aid to the proper interpretation of Rome II. Recital 6 emphasised that in order to improve the predictability of the outcome of litigation and certainty as to the applicable law, conflict of law rules needed to designate the same national law irrespective of where the action was brought; recital 11 emphasised that the concept of “non-contractual obligation” was an autonomous concept, under European law; recital 14 explained that in order to provide legal certainty and justice in individual cases the regulation provided for a general rule, a specific rule and an escape clause; recital 15 explained that the principle of lex delicti commissi was the basic solution in virtually all member states, but that the application varied and engendered uncertainty; recitals 16 and 17 explained that a connection with the country where the direct damage occurred (lex loci damni) struck a fair balance and should be applied in cases of personal injury or damage to property; and recital 18 explained the inter-relationship between articles 4(1) providing for the general rule, 4(2) as an exception to the general principle “creating a special connection where the parties have their habitual residence in the same country”, and 4(3) as an “escape clause”, where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with another country.[11]Article 4 of Rome II provides:(1) Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.(2) However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.(3) Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs (1) or (2), the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.”[12]Save for Mrs Marshall’s claim for dependency which if English law applies is under the Fatal Accidents Act 1976 (“FAA 1976”), it is common ground that the direct damage occurred in France for all of the claims, including Mrs Marshall’s claim on behalf of Mr Marshall’s estate. In respect of the FAA 1976 claim, RSA submits that the direct damage occurred in the location where Mrs Marshall has suffered her loss of dependency, which is in England and Wales, and RSA relies on the judgment of Arden LJ in Brownlie v Four Seasons Holdings Incorporated [2015] EWCA Civ 665 in support of that proposition. Mrs Marshall, Generali and the MIB all contend that the damage occurred in France, and they rely in particular on the recent opinion dated 10 September 2015 of the Advocate General in Lazar v Allianz SpA C-350/14.[13]In Brownlie the issues arose in relation to an application to set aside permission to serve proceedings out of the jurisdiction. It was necessary to show, under the Civil Procedure Rules (“CPR”) that “damage was sustained within the jurisdiction”. Reference was made to Rome II and Arden LJ held (in paragraph 85) that the CPR “should be interpreted consistently with Rome II”. Arden LJ recorded that the FAA 1976 claim was a separate statutory cause of action, for independent loss, which was not a derivative claim and therefore held that the relevant direct damage, for the FAA 1976 claim, had been suffered in England and Wales, see paragraphs 86 and 87.[14]However in Lazar v Allianz SpA Case C-350/14 the Advocate General, having regard to the relevant principles of consistency, foreseeability and certainty, in his opinion to the Court considered that “the damage occurs” for the purposes of a claim such as an FAA 1976 claim where the relevant death occurs. The Advocate General noted that different EEA states took different approaches to the characterisation of a dependency claim. For example it appears that in both England and Italy it is considered that the damage for a loss of dependency occurs in the country where the dependant is situated, but that this is not a European wide approach. The opinion shows that the Advocate General was influenced by the need to avoid different Courts in different EEA states adopting different solutions to applicable law in fatal accident cases, which would lead to a diversity of approach in different jurisdictions, see paragraph 74 of the opinion. It is not yet known when judgment in Lazar will be delivered.[15]It was common ground that the judgment of Arden LJ on the interpretation of article 4(1) of Rome II was obiter. This was because Arden LJ was considering the proper interpretation of the CPR. It was also common ground that the opinion of the Advocate General had not yet been followed in a judgment by the CJEU and therefore had no formal status other than being persuasive. Given the points made by the Advocate General about the undesirability of different approaches being taken by EEA states to dependency claims there seems to me to be a very real prospect that the opinion will be adopted by the Court.[16]It was not suggested that I should adjourn this judgment to await the outcome of the judgment in Lazar, and it is not necessary for me to do so. This is because it is not necessary for me to attempt to decide between the opinion of the Advocate General and the approach taken by Arden LJ (which approach was agreed by Bean and King LJJ). This is because I have reached a clear conclusion on the application of articles 4(2) and 4(3) of Rome II to this case. I appreciate that it is important not to turn first to the exception in article 4(2) to a general rule in article 4(1), and it is important not to use article 4(3) as a starting point, and I have attempted not to do that in this case. However it is necessary to look both at articles 4(2) and 4(3) in any event, and this is because it is common ground that, at the least, the claim made on behalf of the estate by Mrs Marshall is, for the purposes of article 4(1), governed by French law.[17]In relation to article 4(2) RSA submitted that all of the claims made by Mrs Marshall against Mr Pickard are governed by English law. This is because at the time of the accident the habitual residence of Mr and Mrs Marshall and Mr Pickard was in the same country, namely England. Mrs Marshall, Generali and the MIB submitted that article 4(2) of Rome II was an exception to the governing rule in article 4(1), and that as an exception it was to be construed strictly. It was submitted that article 4(2) only applied where there was one person bringing proceedings against another person, and both were habitually resident in the same EEA state. This was because the wording of “person” in article 4(2) was singular. I was shown a number of text books where writers had supported such a strict approach. I do not accept that this proposed interpretation is either reasonable or right. It is correct that article 4(2) is an exception to the new rule set out in article 4(1) of applying the law where the direct damage occurred, but it is an exception based on the legitimate expectation of the parties, as the relevant travaux preparatoires and other materials show. The proposition that a coach crash involving a number of different Claimants should be excluded from the effect of article 4(2) simply because there is more than one injured person is not sustainable. To read the word “person” as applying only to one party involves adopting a particular approach of English law to the construction of limitation or exception clauses while ignoring the fact that this is a European Regulation and subject to the rules of interpretation relating to such Regulations.[18]In my judgment article 4(2) applies, on the natural wording of the article, to the claims made by Mrs Marshall against Mr Pickard. Most of the potential problems identified with multi party cases which were relied on to justify a very strict approach to article 4(2) are addressed by a proper approach to article 4(3). This is not to elevate article 4(3) into the starting point for any type of case, including multi party cases, but it is to give proper effect to its terms. This is because it would be an unusual result of choice of laws provisions if at the moment that Mr Marshall was hit by the Peugeot motor car his claims against Ms Bivard and Mr Pickard were subject to two different governing laws.[19]I turn then to article 4(3). The first question to address when dealing with article 4(3) is whether, as a matter of interpretation, the effect of article 4(3) can be used to return to a governing law which might have been required by article 4(1) or 4(2). There are some textbooks which suggest that such an approach is impermissible, because of the words “other than that indicated in paragraphs 1 or 2”. However at the end of the day no one argued that such a construction was right. In my judgment the parties were right to accept that a governing law mandated by article 4(1), but excluded by article 4(2), might be required by article 4(3). This is because the wording is “in paragraphs 1 or 2” and not “in paragraphs 1 and 2” (my underlining), and it is possible for article 4(1) and article 4(2) to provide for different answers. There is also no good reason for the interpretation or approach suggested by the textbooks. In my judgment this case provides an illustration of when French law is provided as the governing law under article 4(1), excluded (for part of the claims) under article 4(2), and then required again under article 4(3).[20]It is also common ground that article 4(3) imposes a “high hurdle” in the path of a party seeking to displace the law indicated by articles 4(1) or 4(2), and that it is necessary to show that the “centre of gravity” of the case is with the suggested applicable law. In this case there are a number of circumstances which, in my judgment, make it clear that the tort/delict is manifestly more closely connected with France than England and Wales. These are: first that both Mr Marshall and Mr Pickard were hit by the French car driven by Ms Bivard, a national of France, on a French motorway. Any claims made by Mr Marshall and Mr Pickard against Ms Bivard, her insurers (or the FdG as she had no insurers) are governed by the laws of France; secondly the collision by Ms Bivard with Mr Marshall and Mr Pickard was, as a matter of fact and regardless of issues of fault or applicable law, the cause of the accident, the injuries suffered by Mr Marshall and Mr Pickard and the subsequent collisions; and thirdly any claims that Mr Marshall and Mr Pickard have against Generali, as insurers of the vehicle recovery truck, are also governed by the laws of France.[21]I note that Mr Marshall and Mr Pickard had been working together in France for some 2 and a half months, and this was relied on by the parties other than RSA in support of the case that article 4(3) applied, but in my judgment that factor would not have come close to avoiding the effect of article 4(2) if it had stood alone. I also note that the claim against the MIB is made under the 2003 Regulations, which are governed by English law. However it was common ground that this would not affect the applicable law for the underlying accident.[22]Mr Janusz submitted that it was wrong to take so much account of the fact that Ms Bivard was a French national, because in some cases the driver of the motor car which caused the accident might drive off without being traced. I accept that may occur. However I am bound to take into account “all the circumstances of the case”, and this includes the known facts. The fact that other cases may have different and unknown circumstances cannot assist in determining what is the proper answer to all of the circumstances in this case.[23]In these circumstances the laws of France apply to the liability parts of the claims arising out of the accident that are made against before me. My findings on what happened in the accident in France[24]It is common ground that, whatever system of law applies, matters of evidence and procedure, are governed by English law. However Mr Mercer QC submitted on behalf of the MIB that the standard to which a particular fact might need to be proved (namely whether a motor vehicle which had had a collision was nonetheless not “involved”, within the meaning of the Loi Badinter) was governed by French law. I reject that submission. This is because article 1(3) of Rome II provides that “this Regulation shall not apply to evidence and procedure, without prejudice to articles 21 and 22”. Article 22 provides that the applicable law to the accident “shall apply to the extent that … it contains rules which raise presumptions of law or determine the burden of proof”.[25]The standard of proof is a matter for the national Courts which are determining the issue of liability, whether they are applying the laws of France or their own national law. Rome II specifically identified the burden of proof as being for the law determining the issue of liability and did not mention the standard of proof. There are very good reasons for that. It is clear that the manner in which matters are proved in civil law jurisdictions and common law jurisdictions can be very different, with a much greater emphasis on oral evidence in common law jurisdictions. Rome II was not intended to deal with the manner in which matters are proved, which remains for national Courts applying their own rules of evidence and procedure. This is different from the question about which party has the burden of proof, which is intimately connected to the law governing the issue of liability.[26]I turn now to consider the circumstances of the accident. So far as the accident is concerned there was a statement of facts, which was agreed by the parties on the basis that it was not comprehensive, and the witness statement from Mrs Marshall was also agreed. I heard oral evidence from Mr Pickard, the Second Defendant in the first action and the Claimant in the second action. All of the other evidence was hearsay in the form of reports and statements. This included: a statement from Luc Lesage Souchon (“Mr Souchon”), the driver of a recovery vehicle; the police report in France, although the report did not seem to be complete because Mr Pickard confirmed that he had produced a diagram when in hospital after the accident and that has not been located; an expert report produced by an engineer expert in the reconstruction of road traffic accidents, Robert Hazan (“Mr Hazan”), as a report for the Court in France which it was common ground could be relied on before me; and reports from a police officer who attended the post mortem of the injuries suffered by Mr Marshall. There was much common ground between the parties, and I have set out the material matters and (where there was not agreement) my findings of fact in relation to the accident below.[27]On 19th August 2012 Mr Pickard, who was a UK national habitually resident in England, was driving a Ford Fiesta motor car, registration number YB53 MKP, which was pulling a trailer. He was travelling on a motorway in Thiais, a commune in the southern suburbs of Paris. The Ford Fiesta motor car was insured by Royal & Sun Alliance (“RSA”), who are second third parties in both actions.[28]Mr Pickard had a passenger, Mr Marshall. Mr Marshall was a UK national habitually resident in England, who was married to Mrs Marshall, another UK national habitually resident in England, the Claimant in the first action (“Mrs Marshall”). Mr Pickard and Mr Marshall had carried out welding work at a winery in Couddes, France. They had been working in France since 14 June 2012, and on the day of the accident (19th August 2012) they were returning to the United Kingdom.[29]The trailer lost a wheel and Mr Pickard pulled over to the hard shoulder. Mr Pickard and Mr Marshall put on fluorescent tabards and put out a warning triangle and made efforts to contact their breakdown recovery service. As they were doing this two police motorcyclists arrived. The police arranged for a recovery company to attend and Mr Pickard and Mr Marshall waited behind a concrete barrier at the side of the motorway.[30]A recovery truck, registration number 458 AAF 93, driven by Mr Souchon attended the scene. The recovery truck had flashing lights on and Mr Souchon put further cones and triangles out.[31]Mr Souchon asked Mr Pickard if he had a spare wheel, which he did, and Mr Pickard retrieved that from the back of the trailer, and assisted Mr Souchon in holding the wheel while Mr Souchon tightened the first nut. Mr Souchon then said that they would be away in a couple of minutes and Mr Souchon continued fitting the wheel. Mr Pickard and Mr Marshall then went to secure the back of the trailer, tightening a strap around the back with a ratchet. Mr Pickard recalled being at the back corner of the trailer.[32]A Peugeot 106 motor car, registration number YB53 MKP, being driven by Ms Bivard, a French national who was habitually resident in France, drove off the A86 on to the hard shoulder. Ms Bivard was asleep, and she was uninsured. Ms Bivard collided with Mr Pickard and Mr Marshall and then the rear of the trailer.[33]Mr Pickard was thrown by the force of the impact with the Peugeot motor car into the air and he landed on the hard shoulder next to the motorway. I find that Mr Pickard did not make contact with any other vehicles, and this is because there is no evidence of any contact between Mr Pickard and the trailer, Ford Fiesta or vehicle recovery truck. Mr Pickard suffered fractures to his right lower limb and other neck and head injuries.[34]It appears, from the impact damage to the windscreen on the Peugeot 106, the photographs, and the position in which he was found after the accident, that Mr Marshall’s head struck the windscreen of the Peugeot 106. The Peugeot 106 then struck the rear of the trailer, which struck the rear of the Ford Fiesta, which then struck the rear of the recovery truck. The Ford Fiesta then wedged underneath the rear of the recovery truck, meaning that the trailer could not continue travelling forward, and the trailer then came down on Mr Marshall, who had by this time come off the front of the Peugeot 106, and trapped him by his leg. Mr Dougherty QC suggested that I was unable to make findings about the circumstances in which the trailer had come down on to Mr Marshall’s leg. I do not agree. The sequence of events can be determined from the photographs, the descriptions of the injuries, the description of the damage, and the calculations carried out by the expert Mr Hazan. The Peugeot must have forced the trailer forward because it hit it from behind, and because unless it had been forced forward the Ford Fiesta would not have collided with the recovery truck. The expert evidence suggests that the collision between the Ford Fiesta and recovery truck took place at considerable speed. It is apparent that the recovery truck prevented the further forward movement of the Ford Fiesta and the trailer, and this appears from the final position of the Ford Fiesta motor car wedged into the back of the recovery truck. This explains why the trailer was in a position to come down onto Mr Marshall’s leg.[35]The medical evidence shows that Mr Marshall had suffered a haematoma on the leg in the area in which he came into contact with the trailer which suggests, and I find, that Mr Marshall must have been alive at a time when he came into contact with the trailer. Mr Marshall died from multiple injuries.[36]An issue arose as to whether Mr Marshall would inevitably have died because of the result of the impact with the Peugeot 106. The medical evidence shows only that the cause of death was multiple injuries, and I am not able to make any finding that Mr Marshall would have died even if there had been no collision with the trailer. There was no direct contact between Mr Marshall and the recovery truck. The relevant French law[37]I heard expert evidence from Dr Frank Benham (“Dr Benham”). Dr Benham qualified in 1984 and obtained a PhD in Civil law in 1987. He has extensive experience of handling accident cases involving foreigners (to France) in France. I also heard expert evidence from Maitre Jerome Charpentier (“Mr Charpentier”). Mr Charpentier has been registered at the French bar since 1987 as an attorney at law and is a personal injury specialist. Both experts were obviously qualified to provide assistance on the French law relating to road traffic accidents, and both experts did their honest best to provide me with assistance. I should record that there were some limitations with the evidence of both Dr Benham and Mr Charpentier that became apparent in the evidence. Dr Benham modified his evidence on the issue of whether the Ford Fiesta was “involved” because of the report from Mr Hazan, but there was nothing in the report from Mr Hazan which seemed to me to change the essential features of the accident and the issue of whether a vehicle was “involved”. On the other hand Mr Charpentier had a tendency to assert what a French court was likely to find, without distinguishing between the content of the law, and what was likely to happen in practice. This was most clearly evident in relation to the decision of the Cour de Cassation dated 6th February 2014 (“the kitesurfer case”). Mr Charpentier relied on the result of the case as showing that the Cour de Cassation would find that a motor vehicle was “involved” once there was any contact, and it is true that the Cour de Cassation did find that there was both contact and involvement of the motor vehicle. However it was clear from the decision itself that the Cour de Cassation contemplated the fact that there would be no involvement in circumstances where it could be shown that the kitesurfer had suffered all the relevant injuries before contact with the car. However, notwithstanding these limitations both experts were very helpful, and there was much common ground between them, and I am very grateful for their assistance.[38]The compensation of victims of road traffic accidents is now governed by the Loi Badinter. It is apparent that the Loi Badinter was enacted by the legislature in France in order to reduce delays in obtaining compensation for victims of road traffic accidents in France. The general scheme of the Loi Badinter is to impose liability to compensate any person injured in a road traffic accident on the insurer of any motor vehicle which is “involved”. Once the victim has been compensated the insurers then resolve matters among themselves by reference to the articles of the Civil Code and the concept of fault. I understood from the evidence that in a case where there was no one at fault the relevant insurers would contribute on an equal basis to the loss.[39]Article 1 of the Loi Badinter provides:
“the provisions of this chapter apply to victims of a road traffic accident in which an earth-bound motor vehicle and its trailers or semi-trailers is involved, excluding trains and trams which run on their own tracks, as well as to victims carried under a contract” (underlining added). The original French text reads “est implique”
. This means that the issue to determine is whether the Peugeot motor car, Ford Fiesta motor car (including the trailer) and recovery truck were “involved” in the accident, and the issue of “involvement” is central to the Loi Badinter.[40]There was reference before me to statements made by Monsieur Badinter, then Minister of Justice, when introducing the Loi Badinter to the legislature. It is common ground that these statements are an admissible aid to the construction of the Loi Badinter under French law. However there is no need to refer to these statements, because it was apparent that the Cour de Cassation had given guidance on the Loi Badinter and it was apparent that neither expert considered that the original statements to the legislature had enduring value. This was so even though it is apparent that commentators considered that the jurisprudence of the Cour de Cassation on the very wide application of the Loi Badinter had, in some respects, been modified and limited.[41]It should be noted that the Cour de Cassation does not re-examine the facts and is responsible for the proper interpretation of the law. The Cour de Cassation does not review past cases to determine the extent of the law, but asserts the relevant principles which are to be applied. Cases which are considered to be most important in establishing the relevant limits of the law are published in a bulletin. The names of the case are not given and so the relevant cases have been identified by me by reference to dates and by descriptions (such as the “kitesurfer case”). I have been referred to a number of different decisions and to an extract from a practitioner’s textbook but it is not necessary to refer to all of these cases to give my conclusion on the application of French law to this case and my reasons for the findings that I make.[42]As appears above the Loi Badinter does not refer to the concept of liability but instead requires only that a motor vehicle be “involved”. It is common ground that a motor vehicle will be regarded as involved in the accident if it intervened “in any capacity whatsoever”. This goes beyond a causal link, but there are still limits because mere presence of a motor vehicle at the time of an accident is not enough. The difficulties lie in determining the precise limits of when a motor vehicle is “involved”.[43]The expert evidence showed that if there was any contact or collision between a pedestrian and a motor vehicle the motor vehicle would be “involved”. This would be so even if the motor vehicle was parked, see the decision dated 30th April 2014, unless it could be shown that the person had suffered all the relevant injuries before the collision, see the kitesurfer case and the decision dated 3rd March 1993. The kitesurfer case and the decision dated 3rd March 1993 establish the substantial evidential requirement to show that a motor vehicle is not “involved” within the meaning of the Loi Badinter once there has been contact between a person and a motor vehicle. However, as noted above, this is a matter of evidence and does not alter the standard of proof which is for English law. There will not be contact or a collision if battery acid is spilled from one damaged car on to another, see the decision dated 13th December 2012.[44]The expert evidence also showed that if there was a multi vehicle accident, any vehicle which collided with another vehicle is involved, having been treated as colliding at the same time and place irrespective of whether one of the motor vehicles collided with the one in which the victim found himself, see the decision dated 7th July 2011. This is so unless it could be shown that the injury to the victim had occurred before the relevant collision with the relevant motor vehicle, see the decision dated 5th November 1998.[45]Finally the expert evidence showed that a motor vehicle may be involved even if there has been no collision with it (or collision deemed to have occurred at the same time) if it has been involved in any way with the realisation of the damage, see paragraph 289 of the “Dictionnaire Permanent, Assurances” (a loose-leaf practitioners’ text on motor insurance and accidents). The best example of this type of case was the decision dated 11th September 2014, referred to by the parties as the “good Samaritan case”. In that case there was a road traffic accident between two cars. A pedestrian crossed the road and was hit by another car. The original cars were “involved” within the meaning of the Loi Badinter. Similarly a car which had broken down was “involved” for the purposes of the Loi Badinter when a recovery truck driver was walking back to render assistance and was hit by an unknown vehicle which continued without stopping, as appears from the decision dated 3rd June 2000. (It should be noted that the recovery truck driver was unable to claim against the insurers of the recovery truck because of the principle of French law which prevents a person bringing proceedings against the insurers of the vehicle which they were driving). However there remain limits to the principle. A car which was driving normally one way was not liable to the driver of a motorcycle who had attempted to drive between two lines of traffic and had collided with another vehicle, see the decision dated 8th July 2004.[46]It is also common ground that under French law the liability of the FdG is subsidiary, meaning that the FdG will not be liable for an uninsured driver if any other insurer is liable under the Loi Badinter. It might be noted that French law on this point is the same as English law relating to the liability of the MIB for uninsured drivers. Application of French law to my findings about the accident[47]Having set out my findings on the relevant French law it is necessary to attempt to apply them to the facts of the case. I need to deal with the claims arising out of Mr Marshall’s death and the claim of Mr Pickard separately. This is because it is apparent that there were different collisions involved, and because Mr Pickard, as a driver cannot bring proceedings against his own insurers, RSA.[48]In my judgment the Peugeot motor car is “involved” in the accident involving both Mr Marshall and Mr Pickard. This is because the car collided with both Mr Marshall and Mr Pickard.[49]In my judgment the Ford Fiesta motor car is “involved” in the case of Mr Marshall. This is because Mr Marshall ended up trapped underneath the trailer at a time when Mr Marshall was alive.[50]In my judgment the recovery truck was “involved” in the case of Mr Marshall. This is because it was involved within the mechanism of the accident involving Mr Marshall because, if the recovery truck had not been present, the Ford trailer would have travelled further forward and it was prevented from doing so by reason of the presence of the recovery truck. It is not possible to show that Mr Marshall suffered all his relevant injuries before the trailer came down on him, and the evidence shows that the trailer came down on Mr Marshall because it was prevented from travelling forward by the presence of the recovery truck.[51]In these circumstances both RSA and Generali are liable to Mrs Marshall under French law. In these circumstances under French law the FdG would have no liability to Mrs Marshall. I will need to decide whether the 2003 Regulations provide for a different result.[52]So far as Mr Pickard was concerned there was no contact between him and either the Ford Fiesta and its trailer or the vehicle recovery truck. However although there was no contact between Mr Pickard and either the Ford Fiesta motor car and the trailer both would have been “involved” in his accident. This is because the trailer lost a wheel which explains why it was present at the time and the loss of the trailer wheel meant that there was something out of the ordinary so far as the Ford Fiesta was concerned, compare the judgment dated 3rd June 2000. However it is common ground that Mr Pickard is not entitled to make a claim against RSA under French law because they were his insurers.[53]In my judgment the recovery truck was not “involved” in the accident concerning Mr Pickard. This was because there was no relevant collision or contact between Mr Pickard and the recovery truck. The evidence shows that he was propelled into the air by the Peugeot and he was wholly unaffected by the recovery truck. Further, although the recovery truck was present at the time of the collisions there was nothing out of the ordinary in what the vehicle recovery truck had done so far as Mr Pickard was concerned. In my judgment finding liability on the part of the vehicle recovery truck in such circumstances would be an impermissible extension of the relevant French jurisprudence, compare the judgment dated 5th November 1998.[54]In these circumstances neither RSA nor Generali are liable to Mr Pickard. The interpretation of the 2003 Regulations[55]It is common ground that in such circumstances the FdG would be liable to Mr Pickard, and that the MIB is liable to compensate Mr Pickard under the 2003 Regulations.[56]This leaves only the question of whether the MIB is liable to Mrs Marshall. Mrs Marshall retains a principled interest in this question, notwithstanding my findings on the liability of both RSA and Generali to her, because on the law as it stands as at the date of this judgment the assessment of damages on the part of the MIB will be governed by English law, and the assessment of damages on the part of RSA and Generali will be governed by French law.[57]The 2003 Regulations were enacted to give effect to the relevant provisions of Fourth Motor Insurance Directive 2000/26/EC (“the Fourth Motor Insurance Directive”).[58]The relevant history of the First, Second and Fourth Motor Insurance Directives is set out in Jacobs at 848b to 850g. I have also been referred to Travaux Preparatoires and other materials relating to the Fourth Motor Insurance Directive. It is necessary only for me to note that the First Motor Insurance Directive required Member States to take all appropriate steps to ensure that vehicles normally based in the territory of a member state were covered by insurance. The Second Motor Directive required Member States to set up or authorise a body with the task of providing compensation, up to limits, for losses caused by uninsured or unidentified motor vehicles. This is sometimes referred to as a guarantee fund, but the materials showed that there was no uniformity about the names to be used for the various funds which were sometimes called guarantee funds and sometimes compensation funds. The Fourth Motor Insurance Directive provided that Member States should establish a compensation body so that nationals who are the victims of road traffic accidents abroad could recover compensation from that compensation body, which compensation body would have a further right of recovery against the compensation body (for an insured vehicle) or compensation or guarantee fund (for an uninsured vehicle) of the Member State in which the accident had occurred.[59]The Motor Insurance Directives were consolidated into a codified Motor Insurance Directive, 2009/103/EC of 16 September 2009. However this codification did not make any material changes and post-dated the 2003 Regulations, which continue to refer to the Fourth Motor Insurance Directive. I have therefore referred in this judgment to the relevant provisions of the Fourth Motor Insurance Directive, but they are also set out in the Codified Motor Insurance Directive.[60]The 2003 Regulations provide at regulation 13: “(1) This regulation applies where –(a) an accident, caused by or arising out of the use of a vehicle which is normally based in an EEA state, occurs on the territory of- (a) an EEA state other than the United Kingdom … and an injured party resides in the United Kingdom,(b) that injured party made a request for information under regulation 9(2), and(c) it has proved impossible – (ii) within a period of two months after the date of the accident, to identify an insurance undertaking which insures the use of the vehicle; (2) Where this regulation applies – (a) the injured body may make a claim for compensation from the compensation body, and (b) the compensation body shall compensate the injured party in accordance with the provisions of Article 1 of the second motor insurance directive as if it were the body authorised under paragraph 4 of that article and the accident had occurred in Great Britain”.[61]The Second Motor Insurance Directive, referred to in Regulation 13(2)(b) above, provides at article 1(4) as follows: “Each Member state shall set up or authorise a body with the task of providing compensation, at least up to the limits of the insurance obligation for damage to property or personal injuries caused by an unidentified vehicle or a vehicle for which the insurance obligations provided for in paragraph 1 has not been satisfied. This provision shall be without prejudice to the right of the Members States to regard compensation by that body as subsidiary or non-subsidiary and the right to make provision for the settlement of claims between that body and the person or persons responsible for the accident and other insurers or social security bodies required to compensate the victim in respect of the same accident.[62]The evidence shows that Mr and Mrs Marshall resided in the UK; that the accident occurred in France, which is an EEA state other than the UK; that the Peugeot 106 is normally based in France, which is an EEA state; that Mrs Marshall has made an appropriate request for information about insurers to the compensation fund in France; and that it has proved impossible, within the relevant time, to identify an insurer. In these circumstances it is common ground that the provisions of Regulation 13(1) of the 2003 Regulations have been satisfied. In these circumstances Mrs Marshall contends that the MIB is liable to make a payment to her under the 2003 Regulations.[63]The MIB contends that the FdG is not liable to make payments to Mrs Marshall under French law, and that in these circumstances it is not liable, on a proper construction of regulation 13 to compensate Mrs Marshall. This is because regulation 13(2)(b) of the 2003 Regulations requires the MIB to compensate Mrs Marshall “as if it were the body authorised” under article 1(4) of the second Motor Insurance Directive, which is the FdG, and it is common ground that under French law the FdG has no liability to make a payment in this case. Mrs Marshall, who adopted arguments made by Mr Pickard in this respect, submitted that the issue had been decided by the judgment of the Court of Appeal in Bloy, and that the MIB was liable.[64]The provisions of the 2003 Regulations have been considered by the Court of Appeal in Jacobs and in Bloy. In Jacobs the Court of Appeal held that the assessment of damages under the 2003 Regulations was governed by English law because of the words in regulation 13(2)(b) “and the accident had occurred in Great Britain”. This decision was followed in Bloy which held that a cap on the liability of the Lithuanian equivalent of the FdG did not have any effect on the assessment of damages. This was because the matter was to be decided in accordance with English law, and damages were to be assessed in English law which would not have regard to the cap. Those decisions were followed at first instance in Moreno. In that judgment Gilbart J. set out relevant provisions of the Motor Insurance Directives, the travaux preparatoires and the judgments and I refer to those passages, see paragraphs 13 to 62.[65]In my judgment the effect of both Jacobs and Bloy is to provide that the law governing the assessment of damages where the MIB is liable shall be English law and that caps on those damages will be of no effect. In that respect the 2003 Regulations simply mirrored the position on the law governing an assessment of damages if an English Claimant was able to bring their claim in the Courts of England and Wales before the coming into force of Rome II. This had become easier to achieve once the proper interpretation of the Judgments Regulation had become known, see FBTO v Odenbreit Case C-463/06; [2008] Lloyd’s Rep IR 354. Rome II, once it came into force, changed the applicable law governing the assessment of damages but the wording of the 2003 Regulations remained unaltered, and there is nothing in principle to prevent the English legislature requiring the MIB to make a payment of damages which may be more generous (when comparing English damages with Greek damages, as in the case of Moreno) than other EEA states.[66]However I do not read Jacobs and Bloy as deciding when the MIB would be liable to the Claimant. This is because in both cases it was common ground that the uninsured driver was liable (as in this case) and that the MIB was liable under the 2003 Regulations (which is not this case).[67]There was consideration in Jacobs about the circumstances in which the MIB would be liable and at paragraph 32 of Jacobs Moore-Bick LJ said that it was “implicit in the scheme of the directive that the victim must be able to establish that the driver is liable to him in respect of his injuries”. This is established, and this is because the MIB becomes liable “as if it were” the FdG. The FdG is not liable if there is no liability on the part of the uninsured driver, and (relevant in this case) the FdG is not liable if there are other insurers of motor vehicles who are liable. Mr Chapman, when arguing this point on behalf of Mr Pickard (although in the event he did not need the point because there was no other insurer liable to Mr Pickard), submitted that the 2003 Regulations would not provide much of an advantage to the victim if it was still necessary to determine whether there were other insurers liable for the accident under the law of the relevant EEA state. I do not accept this submission. This is because it is apparent that the right to bring proceedings in this jurisdiction is valuable to any English victim of an overseas accident. This is because that person can instruct legal representatives in their own language, have matters explained to them in their own language, and attend Courts in their own country. This is quite apart from the advantage of getting English damages which is the position under the 2003 Regulations.[68]In these circumstances the MIB is not liable to Mrs Marshall. This is because the FdG is not liable to Mrs Marshall in circumstances where there is liability to Mrs Marshall on the part of both RSA and Generali under the Loi Badinter.[69]In these circumstances it is not necessary for me to consider whether the MIB are entitled to rely on the words “as if the accident had occurred in Great Britain”, and rely on that part of English law which means that the MIB is not liable if there is another insurer liable in respect of the accident, although it might be thought that this is putting too much weight on to the words for the first of the reasons given by Moore-Bick LJ in paragraph 27 of Jacobs.[70]For these reasons Mrs Marshall does not have a claim against the MIB under the provisions of the 2003 Regulations.[71]In these circumstances no issue of making a reference to the CJEU arises. In any event there was not much dispute about the scheme of the Motor Insurance Directives and the issue is one of the proper interpretation of the 2003 Regulations, which is a matter for the Courts of England and Wales. Conclusion[72]For the reasons given above:(1) French law applies to the issue of liability of the claims made by Mrs Marshall and Mr Pickard;(2) RSA and Generali are liable to Mrs Marshall under French law and the FdG is not liable to Mrs Marshall;(3) neither RSA nor Generali are liable to Mr Pickard under French law and the FdG is liable to Mr Pickard;(4) the MIB is not liable to Mrs Marshall; and(5) the MIB is liable to Mr Pickard.[73]The preliminary questions ordered to be tried by Master Leslie are answered as follows:
“(a) Is the Second and/or Third Defendant liable to compensate Mrs Marshall?”
Yes, both the Second and Third Defendants are liable to compensate Mrs Marshall; “(b) would the French Guarantee Fund (Fonds de Garantie) be liable to compensate the Claimants under French law?” The Fonds de Garantie is liable to compensate Mr Pickard, but it is not liable to compensate Mrs Marshall; “(c) if the French Guarantee Fund would not be liable to compensate the Claimants, is MIB liable to compensate them under the 2003 Regulations?” The MIB is liable to compensate Mr Pickard, but is not liable to compensate Mrs Marshall.

Cited in 12 later judgments

and 3 more of the most senior