Delargy v Minister for the Environment and Local Government and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 10 August 2005
• Neutral Citation: [2005] IEHC 94
• Court: High Court
• Date: 10 August 2005

[2005] IEHC 94

THE HIGH COURT

RECORD NO. 12298P/2000

Delargy -v- Minister for Environment & Local Government & Ors

BETWEEN/

DENISE DELARGY

PLAINTIFF

AND

THE MINISTER FOR THE ENVIRONMENT AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL AND BY ORDER THE MOTOR INSURERS” BUREAU OF IRELAND

DEFENDANTS

Abstract:

Statute - Motor insurance - MIBI - Constitutionality of provisions of statute - Ministerial discretion - Exercise of discretion - Whether exercise of discretion permits exclusion of motorcycle pillion passengers from MIBI insurance cover - Whether statute constitutional - Whether European Directive directly effective - Council Directive 72/166/EEC - Council Directive 90/232/EC - Road Traffic (Compulsory Insurance) Regulations 1962, article - Road Traffic Act 1961, sections 56 and 65(1)(a) - Bunreacht na hÉireann, Articles 40.3 and 45.2

section 56(1) of the Road Traffic Act 1961 made it mandatory to have motor insurance when using a motor vehicle. There was, at the time the plaintiff had been injured as a motorcycle pillion passenger in 1987, no compulsion to have insurance against a liability to an excepted person as defined in section 65(1) of the Act and article 6 of the Road Traffic (Compulsory Insurance) Regulations 1962. The first defendant had excluded cover under regulation 6 of the Regulations of 1962 to motorcycle pillion passengers. The plaintiff had obtained judgment in 1996 against the driver of the motorcycle, which judgment she failed to execute. She submitted that she was entitled to recover damages against the MIBI and/or the first or second defendants on the basis that sections 56 and 65(1) of the Act of 1961 were unconstitutional. The plaintiff also sought a declaration that Council Directive 72/166/EEC, as amended by Directive 90/232/EC, had direct effect and that article 6 of the Regulations of 1962 was unconstitutional. Ireland had an obligation to comply with the provisions of Directive 90/232/EC, which , by December 1998.

Held by Murphy J in declaring that article 6 of the Road Traffic (Compulsory Insurance) Regulations 1962 was invalid as being contrary to the provisions of Article 40.1 and 40.3 of Bunreacht na hÉireann that the legislature permitted the first defendant to make a distinction between various classes of vehicles but did not provide any guidance as to the principle upon which the first defendant was to draw that distinction. Where there were no seating provisions for passengers in a vehicle, there could be a rational basis for exclusion of compulsory insurance for passengers. In the case of a motor cycle, however, there was accommodation for a passenger and by excluding such pillion passengers, the first defendant had arbitrarily restricted cover to a category of otherwise insured passengers and his actions were not merely regulatory or administrative. At the time of the accident, there was no requirement to have cover for pillion passengers and the MIBI agreement of 1964 was in force which obliged the MIBI to provide indemnity in respect of insurance which was compulsory at the time. Accordingly, the MIBI had no obligation under the agreement of 1964 to indemnify the plaintiff in respect of her injuries. Prior to December, 1998, Directive 72/166/EEC, as amended, had no direct effect.

Reporter: P.C.

1 Judgment of Mr. Justice Roderick Murphy dated the 18th day of March, 2005.

1. Outline of case

2 Over seventeen years ago, in September, 1987 the plaintiff was a pillion passenger on a motor bike owned and ridden by P.J. O'Neill, which was involved in a fatal road traffic accident involving pedestrians. The plaintiff herself suffered considerable injuries in respect of which, in an uncontested action she was awarded damages of £160,569 on 24th April, 1996, eight and a half years later. She failed to execute against the defendant, Mr. O'Neill.

3 The Road Traffic (Compulsory Insurance) Regulation of 1962 ( S.I. 14/1962) did not then provide for compulsory insurance for motor cycle pillion passengers.

4 The European Communities, Directive 90/232/EC, did not at that time provide for compulsory insurance in relation to such passengers. Ireland had an obligation to comply before 31st December, 1998, over two and a half years after the judgment aforesaid.

5 The plaintiff submitted that, following the assessment of damages by Mr. Justice Barr on 24th April, 1996, and the failure, within 28 days therefrom, to recover from Mr. O'Neill, that she is entitled to recover from the third named defendant, (MIBI) or to recover damages from the first and/or second parties on the basis of the invalidity of s. 65(1)(a) and s. 56 of the Road Traffic Act, 1961, having regard to the provisions of the Constitution.

6 The plaintiff also seeks as against the Minister a declaration in relation to article 6 of the Road Traffic (Compulsory Insurance) Regulations, 1962.

7 The plaintiff further seeks a declaration that Council Directive 72/166/EEC as amended by Directive 90/232/EEC has direct effect and obliged the State parties to ensure that the liability of Mr. O'Neill to the plaintiff on foot of the judgment of 24th April, 1996 was indemnified.

8 The plaintiff submits that her right to bodily integrity and of equality before the law was breached insofar as compensation was awarded to the deceased and the injured party, as pedestrians, by the MIBI while she, as a pillion passenger was not able to enforce the award in her action before the High Court, Record No. 90/ 11612P.

2. Pleadings

2.1 Amended statement of claim delivered 31st October, 2002.

9 The originating plenary summons was dated 23rd October, 2000 and amended to include the MIBI on 19th July, 2001.

10 The amended statement of claim, delivered 31st October, 2002, outlined the circumstances of the accident and the statutory and European legislative provisions.

11 The plaintiff claimed:

12 (1) a declaration that s. 65(1)(a) of the Road Traffic Act, 1961 in invalid having regard to the provisions of Article 15.1, Article 40.3 and Article 40.1 of the Constitution of Ireland;

13 (2) a declaration that s. 56 of the same Act is invalid having regard to the provisions of Article 40.3 and Article 40.1 of the Constitution;

14 (3) a declaration that Article 6 of the Road Traffic (Compulsory Insurance) Regulation, 1962 is invalid having regard to the provisions of Article 40.3 and Article 40.1 of the Constitution, that the Minister was acting ultra vires the powers conferred on him by the Oireachtas and that the same is null and void;

15 (4) a declaration that the agreement entered into by the Minister and the MIBI dated 30th December, 1964 is void insofar as same purports to exclude the plaintiff's claim;

16 (5) damages for negligence, breach of duty, breach of statutory duty and breach of the plaintiff's constitutional rights;

17 (6) a declaration that Council Directive 72/166/EEC as amended and in particular as amended by Council Directive 90/232/EEC has direct effect and that the plaintiff is entitled to rely on the provisions of same;

18 (7) a declaration that the said Directive as amended obliged the State parties to ensure that the liability of Mr. O'Neill (the defendant to the personal injuries action) to the plaintiff on foot of a judgment obtained by the plaintiff on 24th April, 1996 was covered by insurance;

19 (8) damages for failure to implement the said Directives into national law;

20 (9) a declaration that the plaintiff was an is entitled to claim as against the MIBI in respect of the liability of Mr. O'Neill to the plaintiff on foot of the said judgment.

2.2 Defences of the State

21 The amended defence of the State parties was dated 19th August, 2002. The defendants were strangers to the alleged Road Traffic Accident and proceedings and made no admission as to the alleged inability of the plaintiff to recover. The defendants made no admission as to the construction of the sections of the Road Traffic Act, 1961 and denied that any delegation of power by the Oireachtas to the Minister was an unlawful delegation. They relied on the European communities (Road Traffic) (Compulsory Insurance) (Amendment) Regulations, 1992 gave effect to the obligations of the State under the provisions of the relevant Directive (72/1/66 EEC; 84/5/EEC; 90/232/EEC and 90/618/EEC).

22 The State referred to the provisions of the Road Traffic (Compulsory Insurance) Regulations, 1962 ( S.I. No. 14/1962) and contended that the provisions clearly prescribed to the principles and policies by reference to which the Minister was to exercise the powers provided for therein.

23 The State parties deny that that Regulations, or Article 6(2) thereof, exceeded the powers conferred on the Minister and/or that the Minister acted ultra vires any powers by defining "passengers" so as to exclude the plaintiff from the benefit of the legislation or that defined passengers in an arbitrary way or that had no power to define passengers.

24 The defence also denied the constitutional claims.

25 The State parties denied that by enacting the legislation aforesaid that they had deprived the plaintiff of her right to recover compensation from the MIBI. They were strangers regarding the alleged refusal of the MIBI to compensate the plaintiff.

26 It was further denied that there was any failure in duty of care or that the defendants were negligent or in breach of duty or in breach of the plaintiff's constitutional rights in excluding her from the benefits of any legislation (which exclusion was denied) or in failing to enact legislation to include her in provisions of the agreement with the MIBI.

27 The State defendants made no admission regarding the construction of Directive 72/116/EEC and denied that such Directive required them to provide compulsory insurance cover to injuries sustained by pillion passengers on motor cycles. They...