Smith v Meade
| Jurisdiction | Ireland |
| Judge | Mr Justice Michael Part |
| Judgment Date | 05 February 2009 |
| Neutral Citation | [2009] IEHC 99 |
| Date | 05 February 2009 |
| Court | High Court |
| Docket Number | [2000 No. 10527P] |
[2009] IEHC 99
THE HIGH COURT
Between:
And
ROAD TRAFFIC (COMPULSORY INSURANCE) (AMDT) REGS 1992 SI 346/1992
ROAD TRAFFIC ACT 1961 S65(1)(A)
EUROPEAN COMMUNITIES (ROAD TRAFFIC) (COMPULSORY INSURANCE) (AMDT) REGS 1992 SI 347/1992 ART 7
ROAD TRAFFIC ACT 1961 S65
EEC DIR 72/166/EEC ART 3(1)
EEC DIR 84/5/EEC RECITAL 7
EEC DIR 84/5/EEC RECITAL 9
EEC DIR 84/5/EEC ART 2(1)
EEC DIR 90/232/EEC ART 1
CRIMINAL PROCEEDINGS AGAINST BERNALDEZ 1996 ECR I-1829 1996 AER (EC) 741 1996 2 CMLR 889
FARRELL v WHITTY 2007 ECR I-3067 2007 2 CMLR 46
TREATY OF ROME ART 234
MARSHALL v SOUTHAMPTON & SOUTH WEST HAMPSHIRE AHA (TEACHING) 1986 ECR 723 1986 QB 401 1986 2 WLR 780 1986 2 AER 584
FACCINI DORI v RECREB SRL 1994 ECR I-3325 1995 1 CMLR 665 1995 AER (EC) 1
VIEGAS v COMPANHIA DE SEGURAS ZURICH SA & MITSUBISHI MOTORS DE PORTUGAL SA 2003 ECR I-7871
MARLEASING SA v LA COMERCIAL INTERNACIONAL DE ALIMENTACION SA 1990 ECR I-4135 1992 1 CMLR 305
EEC DIR 68/151/EEC ART 11
EUROPEAN UNION
Directives
Harmonisation of laws - Road traffic - Compulsory insurance - Directives not transposed at time insurance contract entered into - Time limit for transposition by State had passed - Insurance company declining to provide indemnity - Passenger travelled in rear of vehicle where no seats - Whether "excepted person" - Primacy of Community law - Interpretation of national law 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 - Council Directive 72/166/EEC, article 3(1) - Council Directive 84/5/EEC, recitals 7 and 9, and article 2(1) - Council Directive 90/232/EEC, article 1 - Road Traffic (Compulsory Insurance) (Amendment) Regulations 1992 (SI 346/1992) - European Communities (Road Traffic) (Compulsory Insurance) (Amendment) Regulations 1992 (SI 347/1992) - Road Traffic Act 1961 (No 24), s 65(1)(a) - Held that exclusion clause void (2000/10527P - Peart J - 5/2/2009) [2009] IEHC 99
Smith v Meade
Facts: The plaintiff was injured in 1999 when the car in which he was a passenger owned by the second defendant and driven by the first defendant, was in collision with another vehicle. The plaintiff was in the part of a vehicle not designed and constructed with seating accommodation and FDB, the insurer, sought to refuse to indemnify the defendants pursuant to s. 65 Road Traffic Act 1961, as amended. S. 65 of the Act of 1961 provided for a definition of excepted persons who were not required to be covered in a policy of insurance. Three Directives were of relevance: the First, Second and Third Directives (Council Directive 72/166/EC, Council Directive 84/5/EEC and Council Directive 90/232/EEC). The Second Directive deemed void insurance exemption clauses in certain instances and the Third Directive covered liability for personal injures to all passengers and sought to protect injured persons from gaps in insurance. The Third Directive had not been transposed into Irish law by 1999. The Court of Justice had held in Farrell v. Whitty [2007] ECR I-3067, a decision arising from a referral from the Irish High Court, that Article 1 of the Third Directive had direct effect. The issue arose as to whether the High Court was under an obligation to read Irish law in light of the Directive pursuant to Case C-106/89 Marleasing SA v. La Comercial Internationale de Alimentacion SA [1990] ECR I-4135.
Held by Peart J. there was no dispute but that at the date of the accident in 1999 the Third Directive had not been transposed into Irish law. The objectives thereof were very clear. The objectives of the earlier Directive were clear that an exclusion of liability as here was void. The amendment in s. 65 of the Road Traffic Act 1961 was in conflict with these objectives. The court was required to read s. 65 of the Act of 1961, as amended, in light of the Third Directive. The clause contained in the policy of insurance was void disentitling the FBD from relying thereon to refuse to indemnify the first and second defendants for the loss of the plaintiff.
Reporter: E.F.
Mr Justice Michael Part delivered on the 5th day of February 2009:
The plaintiff was injured on the 19 th June 1999 when the car in which he was a passenger, which was owned by the second defendant, and being driven by the first defendant, was in collision with another vehicle due, it is alleged, to the negligence of the first named defendant.
The part of this vehicle where the plaintiff was when this accident occurred had not been designed and constructed with seating accommodation for passengers.
There was in existence a compulsory insurance policy in respect of this vehicle which the second named defendant had taken out with the third named defendant "FBD", whereby that body was required to provide an indemnity in respect of loss and damage sustained by third parties as a consequence of any negligence, breach of duty and breach of statutory duty by the second named defendant and any persons driving the vehicle with his consent and authority.
FBD has declined to provide an indemnity to the second named defendant in respect of the plaintiff's injuries, on the basis that the policy in question does not cover liability in respect of personal injuries to persons being carried as a passenger in a part of the vehicle which was not designed and constructed with seating accommodation for passengers.
In its Defence FBD has pleaded that the policy of insurance taken out by the second named defendant does not cover the plaintiff's loss because the vehicle in question was a van and that the plaintiff was travelling as a passenger in the rear of the van where there were no seats for passengers. It pleads also that at all material times FBD complied with its obligations under the Road Traffic Acts and under S.I. 346 and 347 of 1992. It relies upon the provisions of s.65 (1) (a) of the Road Traffic Act, 1961, as amended by Article 7 of S.I. 347 of 1992. Section 65 of the Act provides a definition of "excepted person" i.e. persons whose injuries are not required to be covered in a policy of insurance. That amended section provides:
"65. - (1) (a) Any person claiming 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 -"
(i) any part of a mechanically propelled vehicle, other than a large public service vehicle, unless that part is designed and constructed with seating accommodation for passengers, or
(ii) a passenger seated in a caravan attached to a mechanically propelled vehicle while such a combination of vehicles is moving in a public place."
FBD submits that the plaintiff is therefore an excepted person, and one in respect of whose injury while a passenger it was not required by law to cover the liability of the first and second named defendants.
The policy of insurance taken out by the second named defendant provided, inter alia, that "passenger cover only operates for one passenger seated on a fixed seat in the front of the vehicle".
The preliminary issue for decision at this point ahead of the hearing of the plaintiff's claim for damages for his injuries is whether or not the clause in the policy upon which FBD seek to rely in order to decline an indemnity to the first and second defendants in respect of any liability they may be found to have to the plaintiff is in fact void, having regard to certain EU Directives and certain judgments of the European Court of Justice. I will come to those in due course. In the event that the Court concludes that this clause is not void, certain other issues arise such as whether the plaintiff has a claim against the fourth named defendant arising from what is submitted would have been a failure, neglect or refusal to transpose these Directives into Irish law as of the date of the collision in which the plaintiff was injured, the 31 st December 1998 being the date by which the fourth named defendant was required to have transposed same into Irish law.
Anthony Collins SC for the plaintiff refers to the relevant articles of the EU Directives relevant to this issue, and he has helpfully set out the relevant provisions upon which he relies in his written submissions, as follows:
Article 3 (1) of Council Directive of 24 th April 1972 (72/166/EEC) (hereinafter referred to as "the First Directive") on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of he obligation to insure against liability:
"Each Member State shall, subject to Article 4, 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. The extent of the liability covered and the terms and conditions of the cover shall be determined on the basis of these measures."
Recitals 7 and 9 of Council Directive of 30 th December 1983 (84/5/EEC) (hereinafter referred to as "the Second Directive") on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles:
"Whereas it is in...
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