RTA - who would he claim from?

page1

Hi just asking this question out of curiosity. A guy I know was in a RTA a few months ago. The story is that he and a friend were out drinking one day. The guy drove to pub A in his car, a few hours later they decided to drive to pub B but he was too drunk so he asked his friend to drive them. The friend was also drunk and had been banned off the road for drink driving. When they were leaving pub B he got his friend to drive them home and on the way they crashed into a concrete pillar fence.
The friend escaped with cuts and bruises but this guy was quite badly injured, he wasnt wearning a seatbelt so was thrown into the dashboard.

He has been undergoing numerous operations and will be left with permanent injuries and will probably need to use a crutch/walking stick for life.
I was talking to his girlfriend the other day and she was saying that they have a claim for compensation in and they will have to pay all his medical bills out of it.
It got me thinking who exactly could he claim from. The driver had no licence or insurance, would he be simply filing a civil suit against him personally? The friend has no means to pay any compensation.
The guy had insurance, does car insurance cover the car or the driver?
I was thinking then about MIBI but they have a clause whereby they can refuse a claim if the injured person was a passenger in a car and he knew the car wasnt insured for the purpose they were undertaking.

The criminal injuries compensation scheme doesnt cover road traffic offenses (unless you were deliberately run down).

I asked her who was he claiming from and she said it was the driver but he wouldnt be able to pay so the state would pay out instead.

Can anyone enlighten me please.

seamus

page1 wrote: »

I was thinking then about MIBI but they have a clause whereby they can refuse a claim if the injured person was a passenger in a car and he knew the car wasnt insured for the purpose they were undertaking.

They can still put in a claim for compensation though and hope that MIBI don't refuse it.

It's also possible that he has open drive insurance and wasn't aware of the other driver's status, so wasn't aware he was uninsured (or at least he could claim that).

page1

No he doesnt have an open drive policy, definitely not and he was fully aware that the other guy had no licence and insurance and had been banned for drink driving. If he knew he had no open driving cover then he knew the guy was not insured to drive his car.
The only option would have been for the other guy to have additional cover to drive other peoples cars. He knew he had no insurance but like you said he could deny knowledge of this.

Thanks.

MagicSean

Was he prosecuted for allowing the other guy to drive his car without insurance?

italodisco

MagicSean wrote: »

Was he prosecuted for allowing the other guy to drive his car without insurance?

Eh....sorry but has nobody else read that op properly ? He let his banned DRUNK pal drive .....

Neither deserve a penny, effing scumbags ..... That car could have hit a family and wiped have them out . He deserves everthing he got , absolute frog spawn .....

Hope he stays on a walking stick or worse, anyone that thinks I'm over reacting should hang their head in shame.....

Ureal ...... And op , its safe to assume you are one of the scumbags drunk in that car.... Some cheek to be looking for compo , you guys wouldn't have been able to replace the life/lives you might have taken ....

Bring it on .....

italodisco

And asshole , you let your friend drive knowing he was drunk and banned.....

Drink driving dirtbags both of u.....

CIARAN_BOYLE

OP your friend will be luck if he gets a penny. Especially if he knew the other person was drunk, banned or uninsured.

Kosseegan

Have a look at this. His own insurer will have to pay up.

http://www.bailii.org/cgi-bin/markup.cgi?doc=/eu/cases/EUECJ/2011/C44210_O.html&query=wilkinson+and+insurance+and+european&method=boolean

MagicSean

Kosseegan wrote: »

Have a look at this. His own insurer will have to pay up.

http://www.bailii.org/cgi-bin/markup.cgi?doc=/eu/cases/EUECJ/2011/C44210_O.html&query=wilkinson+and+insurance+and+european&method=boolean

i would have thought so too. Unless he claimed the guy stole it or something.

mrs vimes

Voluntary assumption of risk would presumably reduce any payout substantially.

I believe there was a case many years ago called Judge v Reap (studied it in college, many years ago) which was similar circumstances in that the two friends had been drinking together and the passenger was fully aware that the driver was drunk. I think he got no compensation at all but hazy on the details.

mrs vimes

MagicSean wrote: »

i would have thought so too. Unless he claimed the guy stole it or something.

Seems from that case that his own insurer will have to pay up and then sue him for damages for allowing the friend to drive it uninsured?

Kosseegan

mrs vimes wrote: »

Voluntary assumption of risk would presumably reduce any payout substantially.

I believe there was a case many years ago called Judge v Reap (studied it in college, many years ago) which was similar circumstances in that the two friends had been drinking together and the passenger was fully aware that the driver was drunk. I think he got no compensation at all but hazy on the details.

That was presumably long before the EU directives considered in the Wilkinson v Churchill Insurance case. Passengers in vehicles now have extremely strong protections.

In Judge v Reape the issue was contributory negligence. Volenti no fit injuria was not argued in the Supreme Court

The plaintiff, who had consumed a considerable amount of intoxicating liquor, voluntarily accepted a seat as passenger in the defendant's motor car at a time when the plaintiff know that the defendant was going to drive his car and when the plaintiff knew, or ought to have known, that the defendant was drunk. After the defendant had driven his car a short distance, the car collided with another vehicle and the plaintiff was injured. The plaintiff sued the defendant in the High Court and claimed damages for the defendant's negligence. The defendant did not deny that he had ben negligent, but he pleaded that the plaintiff had also been negligent. At the trial of the action the jury found that the plaintiff had not ben negligent, and judgment was entered in favour of the plaintiff for the full amount of the damages assessed by the jury. On appeal by the defendant it was
Held by the Supreme Court ( Ó Dálaigh C.J., Haugh and Budd JJ.), in allowing the appeal and directing a retrial, that the finding of the jury that the plaintiff had not ben negligent was perverse.
Appeal from the High Court.

Our man in Havana

MagicSean wrote: »

Was he prosecuted for allowing the other guy to drive his car without insurance?

I don't think there is a charge of permitting in Ireland?

page1

Thanks for the replies. What threw me was her comment that the State would pay if he could'nt, I could'nt figure who they were suing then.

So its probably the insurance company and the quantum of damages will be reduced in accordance with his contributory negligence in getting into the car with someone whom he knew to be intoxicated and also the fact he didnt wear a seatbelt. I think his injuries were seriously increased due to this fact. Do the courts apply a pretty standard percentage reduction for things like this?

Magicsean, no im pretty sure he wasnt charged with anything, not sure about the guy driving, I cant imagine he would get away with it especially considering he was already banned for drink driving.

Ill have a look at those two cases mentioned, thanks for the link.

seamus

Our man in Havana wrote: »

I don't think there is a charge of permitting in Ireland?

There is. It's an offence to allow someone to drive your vehicle uninsured. Penalties can include jail time, hefty fines or a ban for yourself.

Milk & Honey

seamus wrote: »

There is. It's an offence to allow someone to drive your vehicle uninsured. Penalties can include jail time, hefty fines or a ban for yourself.

The driver wasn't uninsured. The only requirement is that there is a policy of insurance whereby an injured third party is compensated. In this case the injured individuals own policy would have to compensate any injured person including the owner/passenger. The European Court do not think contributory negligence comes into it. Not wearing a seatbelt generally results in a 25% deduction, provided it can be shown that the lack of a seatbelt aggravated the injuries.

mrs vimes

Milk & Honey wrote: »

seamus wrote: »

There is. It's an offence to allow someone to drive your vehicle uninsured. Penalties can include jail time, hefty fines or a ban for yourself.

The driver wasn't uninsured. The only requirement is that there is a policy of insurance whereby an injured third party is compensated. In this case the injured individuals own policy would have to compensate any injured person including the owner/passenger. The European Court do not think contributory negligence comes into it. Not wearing a seatbelt generally results in a 25% deduction, provided it can be shown that the lack of a seatbelt aggravated the injuries.

The banned for drink driving guy was driving according to op. He wouldn't have had insurance.

There is a fund for uninsured drivers called mibi funded by the insurance cos which compensates and then looks to claim off the driver.

I assume this is what the girlfriend was talking about.

page1

mrs vimes wrote: »

Milk & Honey wrote: »

seamus wrote: »

There is. It's an offence to allow someone to drive your vehicle uninsured. Penalties can include jail time, hefty fines or a ban for yourself.

The driver wasn't uninsured. The only requirement is that there is a policy of insurance whereby an injured third party is compensated. In this case the injured individuals own policy would have to compensate any injured person including the owner/passenger. The European Court do not think contributory negligence comes into it. Not wearing a seatbelt generally results in a 25% deduction, provided it can be shown that the lack of a seatbelt aggravated the injuries.

The banned for drink driving guy was driving according to op. He wouldn't have had insurance.

There is a fund for uninsured drivers called mibi funded by the insurance cos which compensates and then looks to claim off the driver.

I assume this is what the girlfriend was talking about.

the driver was the banned guy with no licence or insurance. The injured passenger was the person with the insurance it was his car.
Assuming he only had third party insurance how can he claim off his own insurance for his injuries. Would his insurance not just cover a 3rd party's injuries?
Or is the insurance on the car and so anyone injured excluding the driver is a 3rd party?

MagicSean

The car owners insurance will be liable for the payout but they will pursue the driver for the cost. They may also contest any compensation decision based on contributory negligence. Both the owner and driver face criminal prosecution.

Milk & Honey

page1 wrote: »

the driver was the banned guy with no licence or insurance. The injured passenger was the person with the insurance it was his car.
Assuming he only had third party insurance how can he claim off his own insurance for his injuries. Would his insurance not just cover a 3rd party's injuries?
Or is the insurance on the car and so anyone injured excluding the driver is a 3rd party?

Look at Directive 84/5 EC. Anyone driving with the drivers permission has third party cover, whether or not they hold a licence.

seamus

Milk & Honey wrote: »

Look at Directive 84/5 EC. Anyone driving with the drivers permission has third party cover, whether or not they hold a licence.

Actually that directive appears to cover anyone driving the vehicle, without or without permission and with or without a licence, provided that there is an insurance policy on the car.

Has that been tested/clarified in Irish law?

The implication of that directive is that if someone steals my car and hits a pedestrian, the pedestrian can claim from my insurance policy.

Milk & Honey

seamus wrote: »

Actually that directive appears to cover anyone driving the vehicle, without or without permission and with or without a licence, provided that there is an insurance policy on the car.

Has that been tested/clarified in Irish law?

The implication of that directive is that if someone steals my car and hits a pedestrian, the pedestrian can claim from my insurance policy.

The directive specifically rules out cases where the car is stolen. There is a case pending before the Supreme Court on whether the offence of driving without insurance is made out when the car is driven with permission.

Kosseegan

Milk & Honey wrote: »

Look at Directive 84/5 EC. Anyone driving with the drivers permission has third party cover, whether or not they hold a licence.

That directive has been replaced by

DIRECTIVE 2009/103/EC
which repeats the same provisions with regard to exclusion clauses.
as 84/5

Article 13
[FONT=EUAlbertina,EU Albertina][FONT=EUAlbertina,EU Albertina]Exclusion clauses
[/FONT][/FONT][FONT=EUAlbertina,EU Albertina][FONT=EUAlbertina,EU Albertina]1. Each Member State shall take all appropriate measures to ensure that any statutory provision or any contractual clause contained in an insurance policy issued in accordance with Article 3 shall be deemed to be void in respect of claims by third parties who have been victims of an accident where that statutory provision or contractual clause excludes from insurance the use or driving of vehicles by:
(a) persons who do not have express or implied authorisation to do so;
(b) persons who do not hold a licence permitting them to drive the vehicle concerned;
(c) persons who are in breach of the statutory technical requirements concerning the condition and safety of the vehicle concerned.

However, the provision or clause referred to in point (a) of the first subparagraph may be invoked against persons who voluntarily entered the vehicle which caused the damage or injury, when the insurer can prove that they knew the vehicle was stolen.

Member States shall have the option — in the case of accidents occurring on their territory — of not applying the provision in the first subparagraph if and in so far as the victim may obtain compensation for the damage suffered from a social security body.
2. In the case of vehicles stolen or obtained by violence, Member States may provide that the body specified in Article 10(1) is to pay compensation instead of the insurer under the conditions set out in paragraph 1 of this Article. Where the vehicle is normally based in another Member State, that body can make no claim against any body in that Member State.
Member States which, in the case of vehicles stolen or obtained by violence, provide that the body referred to in Article 10(1) is to pay compensation may fix in respect of damage to property an excess of not more than EUR 250 to be borne by the victim.
3. Member States shall take the necessary measures to ensure that any statutory provision or any contractual clause contained in an insurance policy which excludes a passenger from such cover on the basis that he knew or should have known that the driver of the vehicle was under the influence of alcohol or of any other intoxicating agent at the time of an accident, shall be deemed to be void in respect of the claims of such passenger.
[/FONT][/FONT]

Avatargh

So, he asked his drunk, banned friend to drive home, who had no licence and no insurance?

Maybe he should just live with his injuries and be grateful that his idiotic self and friend didn't end up killing someone.

But no. He wants to "claim".

msg11

Telling your drunk friend to drive your own car home is one thing, but telling your banned drunk friend who got banned for drink driving to drive you home has actually left me speechless.

If they do claim of the MIBI I don't see why I should have to be contributing to this fund via my insurance to pay out for moronic behavior like this.

They should both count themselves very lucky they didn't kill someone or themselves.

schemingbohemia

If only he was up for a Darwin Award......

Kosseegan

msg11 wrote: »

Telling your drunk friend to drive your own car home is one thing, but telling your banned drunk friend who got banned for drink driving to drive you home has actually left me speechless.

If they do claim of the MIBI I don't see why I should have to be contributing to this fund via my insurance to pay out for moronic behavior like this.

They should both count themselves very lucky they didn't kill someone or themselves.

It won't be the MIBI, it will be his own insurance company. If you are a policy holder in that company then you are subsidising. Any clause in the policy excluding liability because of a drunken driver is void.

page1

Just read that ECJ case, so it seems its the car that is insured and the insurer (if not the driver) is considered a third party and entitled to compensation if injured.
Also para 38 states that the insurer cannot claim to be reimbursed for compensation paid to the insured as a victim, they can only claim for comp paid to other victims.
So it will be left to see what reduction is made for contributory negligence - 25% average for not wearing a seatbelt ( I obviously havent seen his medical records but he has freely admitted that had he been wearing one he wouldnt have been injured near as much - told as much by the doctors).
There will also be a deduction made for his "want of care" in getting into the car with a drunk driver.

Just read Hussey v Twomey and her award was reduced by 40% for this.

Id say he might be lucky to get his substantial medical bills covered.

I think its crazy that people can claim compensation when injured solely due to their own negligence, and the result is we are all paying higher insurance premiums.

Thanks for the input everyone.

Milk & Honey

page1 wrote: »

Just read Hussey v Twomey and her award was reduced by 40% for this.

Id say he might be lucky to get his substantial medical bills covered.



Thanks for the input everyone.

Medical bills go into special damages and would all be covered. It would be the general damages which would be reduced.

tricialou

italodisco wrote: »

Eh....sorry but has nobody else read that op properly ? He let his banned DRUNK pal drive .....

Neither deserve a penny, effing scumbags ..... That car could have hit a family and wiped have them out . He deserves everthing he got , absolute frog spawn .....

Hope he stays on a walking stick or worse, anyone that thinks I'm over reacting should hang their head in shame.....

Ureal ...... And op , its safe to assume you are one of the scumbags drunk in that car.... Some cheek to be looking for compo , you guys wouldn't have been able to replace the life/lives you might have taken ....

Bring it on .....

why would you wish someone to be in a walking stick for the rest of their lives??? your just as bad as the people claiming when you wish nasty things on other people... ive heard people giving out about claims before yet they are the first to do it when they get a chance
you dont know what you would do untill you are in a situation like that
as they say if your gonna point the finger make sure your hands are clean!!!

mrjoneill

See a case in the recent past where passenger travelling in a stolen car received substantial damages for brain damage from the MIBI otherwise the genuine insured Irish motorist. And both he and the driver were out of their minds on both drink and drugs when car was crashed.