Farrell v Whitty and Others

JurisdictionIreland
JudgeMr. Justice Birmingham
Judgment Date31 January 2008
Neutral Citation[2008] IEHC 124
CourtHigh Court
Date31 January 2008

[2008] IEHC 124

THE HIGH COURT

No. 10802 P/1997
Farrell v Whitty & Ors
ELAINE FARRELL
PLAINTIFF

AND

ALAN WHITTY, THE MINISTER FOR THE ENVIRONMENT, IRELAND AND THE ATTORNEY GENERAL AND THE MOTOR INSURANCE BUREAU OF IRELAND
DEFENDANTS

ROAD TRAFFIC ACT 1961 S56

ROAD TRAFFIC ACT 1961 S65(1)

EUROPEAN COMMUNITIES (ROAD TRAFFIC) (COMPULSORY INSURANCE) (AMDT) REGS 1992 SI NO 347/1992 ART 7(1)

EEC DIR 84/5

EEC DIR 90/232

EEC DIR 72/166 ART 3(1)

EEC DIR 72/166 ART 1(1)

EEC DIR 72/166 ART 1(4)

WITHERS v DELANEY & MOTOR INSURERS BUREAU OF IRELAND (MIBI) 2002 ECR I-08301

EUROPEAN COMMUNITIES (ROAD TRAFFIC) (COMPULSORY INSURANCE) REGS 1975 SI 178/1975

RSC O.25 r1

TREATY ESTABLISHING THE EUROPEAN COMMUNITY ART 234

FARRELL v WHITTY & ORS 2007 ECR I-03067

ROAD TRAFFIC ACT 1961 S78

FOSTER & ORS v BRITISH GAS PLC 1990 ECR I-3313

EEC DIR 76/207

KAMPELMANN & ORS v LANDSCHAFTSVERBAND WESFALEN-LIPPE 1997 ECR I-06907

TRIDIMAS GENERAL PRINCIPLES OF EU LAW 2ED 2006 46

STEINER WOODS TWIGG-FLESNER EU LAW 9ED 2006

FAHEY PRELIMINARY REFERENCE FROM THE CIRCUIT COURT: THE "EMANATION OF THE STATE" DOCTRINE IN THE IRISH COURTS 2004 ILT 6

HAIM v KASSENZAHNARTZLICHE VEREINIGUNG NORDRHEIN 2000 ECR I-05123

KONLE v AUSTRIAN REPUBLIC 1999 ECR I-03099

MIGHELL v READING 1999 1 CMLR 1251

WHITE v WHITE 2001 1 WLR 481

EVANS v SECRETARY OF STATE FOR THE ENVIRONMENT,TRANSPORT & THE REGIONS & ANOR 2003 ECR I-14447

BYRNE v MOTOR INSURERS BUREAU & ANOR 2007 3 AER 499

NATIONAL UNION OF TEACHERS v GOVERNING BODY OF ST MARY'S CHURCH OF ENGLAND (AIDED) JUNIOR SCHOOL 1997 3 CMLR 630

DUBLIN BUS v MOTOR INSURERS BUREAU OF IRELAND (MIBI) UNREP MCMAHON 29.10.1999 2000/5/1786

DELARGY v MIN FOR ENVIRONMENT & ORS UNREP MURPHY 18.3.2005 2005/15/3179 2005 IEHC 94

IRISH TRUST BANK LTD v CENTRAL BANK OF IRELAND 1976-77 ILRM 50

ROAD TRAFFIC (COMPULSORY INSURANCE) REGS 1962 SI NO 14/1962

ROLLS ROYCE v DOUGHTY 1992 ICR 538

RIKSSKATTEVERKET v GHAREHVERAN 2001 ECR I-07687

FRANCOVICH, BONIFACI & ORS v ITALY 1991 ECR I-05357

WAGNER MIRET v FONDO DE GARANTIA SALARIAL 1993 ECR I-06911

INSURANCE

Motor Insurance

Motor Insurance Bureau of Ireland - Road traffic accident - Uninsured driver - Duty to indemnify - Whether Motor Insurance Bureau of Ireland as matter of domestic law obliged to compensate - European Union Legislative Framework - Whether Motor Insurance Bureau of Ireland "emanation of the State" - Status of Motor Insurance Bureau of Ireland and relationship with State - Jurisprudence of European Court of Justice - Applicable test - Whether Directive directly enforceable against MIBI - Whether Directive had direct effect against Motor Insurance Bureau of Ireland - Whether MIBI responsible for proper implementation of Directive - Delargy v Minister for Environment [2005] IEHC 94, (Unrep, Murphy J, 18/3/2005) distinguished; Foster v British Gas Plc [1990] ECR 3313, Evans v Secretary of State for the Environment [2003] ECR 4447, Collino and Chiappero [2000] ECR 6659, Rieser Internationale Transporte [2004] ECR 1477, Adidas-Salomon and Adidas Benelux [2003] ECR 12537; Pfeiffer [2004] ECR 8834, Kampelmann v Landschastsverband Westfalen-Lippe [1997] ECR 4907, Haim v Kassenzahnrtzliche Vereinigung Nordrhein [2000] ECR 5123, Konle v Austrian Republic [1999] ECR 3099, Mighell v Reading [1999] Lloyd's Rep IR 30, White v White [1999] 1 CMLR 1251, Byrne v MIB [2007] 2 All ER 499, Dublin Bus v MIBI (Unrep, CC, McMahon J, 29/10/1999), Withers v Delaney (Unreported, CC, McMahon J, 9/3/2001), NUT v St Mary's Church of England Junior School [1997] 3 CLMR 630, Rolls Royce v Doughty [1992] ICR 538, Riksskatteverket v Gharehveran [2001] ECR 7687, Francovich v Italy [1991] ECR 5357 and Wagner Miret v Fondo de Garanatia Salarial [1993] ECR 6911 considered - Road Traffic Act 1961 (No 24), ss 56 and 65(1) - European Communities (Road Traffic) (Compulsory Insurance) (Amendment) Regulations 1992 (SI 347/1992), art 7 - Council Directive 72/166/EEC - Council Directive 84/5/EEC - Council Directive 90/232/EEC - Motor Insurance Bureau of Ireland Agreement 1988, cl 3(7) and 4(1) - Application granted (1997/10802P - Birmingham J - 31/1/2008) [2008] IEHC 124

Farrell v Whitty

1

JUDGMENT of Mr. Justice Birmingham delivered the 31st day of January, 2008

Factual background to the present proceedings
2

2 1.1 On January, 26 th, 1996, the plaintiff was travelling in a van driven by the first named defendant when it was involved in an accident. The vehicle was not fitted with seating in the rear; it was in this area that at the time of the accident the plaintiff was seated on the floor. This area was intended not for carrying passengers but for carrying goods.

3

3 1.2 It is the plaintiff's case that at or near Cookstown/Fortunestown, Tudor Lane, Tallaght the first named defendant lost control of the vehicle causing it to collide with a wall, as a result of which she suffered personal injuries.

4

4 1.3 Subsequent to the accident it transpired that the first named defendant was an uninsured driver. Accordingly, the plaintiff sought to recover compensation from the fifth named defendant, the Motor Insurance Bureau of Ireland ("MIBI"). The plaintiff sought to do so pursuant to the terms of an agreement between the second named defendant, the Minister for the Environment ("the Minister") and the MIBI dated 21 st December, 1988.

5

5 1.4 The MIBI refused to become involved in the claim and refused to compensate the plaintiff. It did so on the basis that the plaintiff was travelling in a part of the vehicle not fitted with seating and accordingly insurance was not compulsory.

6

6 1.5 In July, 2001 the plaintiff obtained judgment by default against the first named defendant. The question of assessment of damages was deferred to the trial of the action.

The legal background to the present proceedings
7

2 2.1 It appears convenient to set out the legal background both under Irish domestic law and under EU law. Section 56 of the Road Traffic Act, 1961 (as amended) imposes the general obligation on the user of a motor vehicle to be covered by liability insurance for injury or damage to third parties. The obligation is to be insured in respect of all sums for which the user shall be liable to any person exclusive of "excepted persons".

8

3 2.2 The question of who is or who is not an excepted person is thus of critical significance. The question of excepted persons is dealt with at s. 65(1) of the Road Traffic Act, 1961 (as amended). It provides as follows:-

"In this Part of this Act "excepted persons" means the following persons:"

9

a) any person claiming in respect of injury to himself sustained while he was in or on a mechanically propelled vehicle (or a vehicle drawn thereby) to which the relevant document relates, other than a mechanically propelled vehicle, or a drawn vehicle, or vehicles forming a combination of vehicles, of a class specified for the purposes of this paragraph by regulations made by the Minister, provided that such regulations shall not extend compulsory insurance in respect of civil liability to passengers to-

10

(i) any part of a mechanically propelled vehicle, other than a large public service vehicle, unless that part of the vehicle is designed and constructed with seating accommodation for passengers…"

11

4 2.3 The approach to exemption in s.65 (1) is a somewhat unusual one which was categorised as something of a "reverse definition" by counsel who appeared for the plaintiff in the case of Delargy v. The Minister for the Environment and Local Government, [2005] IEHC 94, a case to which I will refer later.

12

24. In summary, the position would appear to be that one is obliged to be covered by insurance in respect of injuries to any person other than an "excepted person". However, everybody is an "excepted person" unless positively included by a ministerial order. The power of the Minister is constrained by the stipulation that the obligation of compulsory insurance shall not be extended to passengers in any part of a vehicle, unless that part of the vehicle is designed and constructed with seating accommodation.

13

5 2.5 Article 7(1) of the European Communities (Road Traffic) (Compulsory Insurance) (Amendment) Regulations, 1992 ( S.I. No. 347 of 1992) substituted a new s.65(1)(a) of the Act of 1961 which specified the classes of vehicles to which the section applied. The change effected by the Regulations of 1992 extended the category of vehicle and passengers who were covered with effect from the 20 th November 1992, but even under this new more expansive regime the compulsory obligation to insure does not apply to passengers travelling in a part of a vehicle not designed or constructed for passengers.

14

6 2.6 Accordingly, passengers in the rear of vehicles not fitted with seating are persons in respect of whose injuries the MIBI would not appear as a matter of domestic law to be obliged to compensate.

The EC Legislative Framework
15

2 3.1 A number of directives are relevant. In particular, Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member Sates 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 (hereafter known as "the First Directive"); Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles (hereafter known as "the Second Directive"); and 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 (hereafter known as "the Third Directive").

The First...

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5 cases
  • Smith v Meade
    • Ireland
    • High Court
    • 5 February 2009
    ... ... in light of wording and purpose of Directive - Marleasing SA (C-106/89) [1990] ECR I-4135, Farrell v Whitty (C-356/05) [2007] ECR 1-3067 and Ruiz Bernáldez (C-129/94) [1996] ECR I-1829 applied - ... ...
  • McCall v Poulton
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 21 November 2008
    ...to refer that question to the ECJ. His reference to conflicting decisions was to the fact that in Farrell v Whitty and the MIBI [2008] IEHC 124 the High Court in Ireland has recently ruled that the MIBI is an emanation of the state, whereas Flaux J in Byrne has ruled that the MIB is 25 Mr ......
  • Michael Lewis (a protected party by his Litigation Friend, Janet Lewis) v Dennis Tindale
    • United Kingdom
    • Queen's Bench Division
    • 14 September 2018
    ... ... Zavarovalnica Triglav dd (Case C-162/13) [2016] RTR 10 and Farrell v. Whitty (No.2) (Case C-413/15) [2018] 3 WLR 285 (hereafter Farrell (No.2) ) ... 6 ... 68 Ms Farrell issued proceedings against (amongst others) the MIBI, claiming that the unqualified terms of Article 1 of the Third Directive had direct ... ...
  • Smith v Meade
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    • Court of Appeal (Ireland)
    • 16 December 2016
    ...that the plaintiff could rely directly on the provisions of the Third Directive as against the MIBI itself: see Farrell v. Whitty (No.2) [2008] IEHC 124. This matter was subsequently appealed to the Supreme Court who have since subsequently made a reference to the CJEU on the question of t......
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