Law of Compulsory Motor Vehicle, The

ÖZLEM GÜRSES

Document

Page 237

CHAPTER 11 Injuries suffered in the EU

11.1 The developments in the motor third party liability insurance brought forward by the Directives are referred to throughout this book. This chapter focuses on the Fourth Directive, Directive 2000/26/EC of 16 May 2000, and its implementation in the UK. This chapter will also examine the Green Card System. 11.2 Most notably, the Fourth Directive aimed at giving victims of foreign motor accidents various possibilities of recourse in their home states of residence. The measures adopted by the Fourth Directive now appear in the Consolidated Directive in Articles 20–261 which provide rules governing compensation in respect of any loss or injury resulting from accidents occurring in a Member State other than the Member State of residence of the injured party which are caused by the use of vehicles insured and normally based in a Member State. 11.3 Accordingly, each Member State shall take all measures necessary to ensure that all insurers insuring compulsory motor vehicle third party insurance appoint a claims representative in each Member State other than that in which they have received their official authorisation.2 Additionally, each Member State shall establish or approve a compensation body responsible for providing compensation to injured parties in the cases referred to in Article 20(1).3 Art 20(1) covers compensation in respect of any loss or injury resulting from accidents occurring in a Member State other than the Member State of residence of the injured party which are caused by the use of vehicles insured and normally based in a Member State. In case an insurer has not appointed a claims representative or when the insurer or claims representative does not formulate a reasoned offer or reasoned reply within the required time limit, the victim can address a claim to a compensation body in his or her own Member State. The same body can be appealed to in case the victim has suffered an accident in another Member State, caused by an unidentified or uninsured vehicle. The compensation body which would meet the claims made by a motor traffic accident victim at the home state of residence rather than at the place of the accident can seek reimbursement from the compensation body where the accident took place. 11.4 In order to allow the victim to identify the right body to turn to, the Fourth Motor Insurance Directive required the EEA Member States to establish Information

Page 238

Centres.4 The relevant obligations of the Member States are now set out under Art 23 of the Consolidated Directive. Such centres are responsible for keeping a register containing information in relation to where the vehicle is registered, insurance undertakings and the list of vehicles which, in each Member State, benefit from the derogation from the requirement for civil liability insurance cover in accordance with Article 5(1) and (2) as well as the relevant bodies that back up the compensation requirement in the case of such derogations. Where the injured party has a legitimate interest in obtaining it, the Information Centre shall provide the injured party with the name and address of the owner or usual driver or registered keeper of the vehicle.5 11.5 All of the measures mentioned here aim to enable a victim of a motor vehicle accident to make a claim for the injuries suffered to the compensation body in their Member State of residence.6 11.6 The Fourth Motor Insurance Directive also required insurers and claims representatives to provide a prompt settlement of claims. Procedural requirements are now set out in Article 22 of the Consolidated Directive. Briefly, the Member States are required to establish appropriate measures that the claims representatives provide either compensation or a reasoned response7 to the claimant victim within three months of the date when the injured party presented his claim for compensation. 11.7 If an injured party has not taken legal action directly against the insurer, he may seek compensation from the body if within three months after he made a claim, he has not been provided with either compensation or reasoned response from either the insurer or the claims representative as the case may be. If an injured party has taken legal action directly against the insurer, he may not seek compensation from the body. The compensation body is required to take action within two months of the date when the injured party presents a claim for compensation to it. The compensation body shall immediately inform the insurer, the compensation body in the Member State in which the insurance undertaking which issued the policy is established and, if known, the person who caused the accident that it has received a claim from the injured party and that it will respond to that claim within two months of the presentation of that claim. The compensation body is required to terminate its action if the insurance undertaking, or its claims representative, subsequently makes a reasoned reply to the claim. The relevant body may not impose on the injured party’s establishing in any way that the person liable is unable or refuses to pay. Article 24(2) provides that the compensation body which has compensated the injured party in his Member State of residence shall be entitled to claim reimbursement of the sum paid by way of compensation from the compensation body in the Member State in which the insurance undertaking which issued the policy is established. The latter body shall be subrogated to the injured party in his rights against the person who caused the accident or his insurance undertaking in so far as the compensation body in the Member State of residence of the injured party has provided compensation for the loss or injury suffered.

Page 239

11.8 The injured party may also apply for compensation to the compensation body in the Member State that he resides if it is not possible to identify the vehicle that caused the accident or within two months of the date of the accident it is not possible to identify the insurer. The compensation body that responded to the claim is entitled to reimbursement, if the vehicle is identified, against the guarantee fund in the Member State where the vehicle is normally based and against the guarantee fund in the Member State in which the accident took place in the case of an unidentified vehicle. Where the accident was caused by a vehicle from a third-country vehicle, the right of recourse is against the guarantee fund in the Member State in which the accident took place. 11.9 Where an injured party is resident of a Member State and is injured in a third party country whose National Insurers’ Bureau has joined the Green Card System, these provisions shall also apply to claims by such victims.

Implementation of the Fourth Directive

11.10 The compensation body’s right of recourse under the Directives is referred to above. Here it is necessary to set the wording of the relevant Articles for the purposes of explaining the implementation procedure of the Directive. Article 6(2) of the Fourth Directive8 provided:

The compensation body which has compensated the injured party in his member state of residence shall be entitled to claim reimbursement of the sum paid by way of compensation from the compensation body in the member state of the insurance undertaking’s establishment which issued the policy.

The rest of this document is only available to i-law.com online subscribers.

If you are already a subscriber, click Log In button.