New Supreme Court ruling of 8 June 2023
The Supreme Court held that a fire engine used for firefighting in a field was in use as a vehicle (means of transport), and that any personal injury caused by the fire engine in this connection was covered by the motor liability insurance. The case concerns the demarcation between commercial liability insurance and motor liability insurance, and whether it is possible to interpret section 105 of the Danish Road Traffic Act in accordance with the directive in relation to article 3(1) of the Motor Vehicle Insurance Directive (Directive 2009/103/EC).
The circumstances of the case
In connection with extinguishing a field fire on 19 July 2018, firefighter "A" was hit by a fire engine belonging to Østjyllands Brandvæsen. As a result, he died. Østjyllands Brandvæsen had taken out motor vehicle insurance for the fire engine with insurance company "B" and commercial liability insurance with insurance company "C".
The case concerned which of the insurance companies should ultimately bear the cost of the loss of dependency compensation that the motor liability insurance had paid to Mr. A's widow.
Ø.L.D. of 18 June 2021
In the grounds for the judgement, the High Court began by considering whether the accident was covered by the provisions of the Motor Vehicle Insurance Directive regarding the insurance obligation and subsequently whether an interpretation of the Danish Road Traffic Act could be made in accordance with the Directive.
In some cases, the European Court of Justice has ruled on whether damage caused by a motor vehicle must be covered by the vehicle's compulsory liability insurance based on the specific damage and the nature of the activity carried out at the time the damage was caused, or whether the damage must be compensated by another insurance policy or covered by the liability of the person who caused the damage.
After a review of the Court of Justice of the European Union's grounds in e.g. C-162/13, Vnuk, C-514/16, Rodrigues De Andrade, C-334/16, Núñez Torreiro, the High Court concluded that "in the light of the objectives pursued by the Motor Insurance Directive, in particular the protection of victims of accidents caused by motor vehicles, the High Court finds, that a case such as the present one, where a fire engine, in accordance with its ordinary function as a means of transport while extinguishing a fire in a stubble field, reversed and thereby caused damage, according to Article 3(1) of the Motor Vehicle Insurance Directive, must be covered by compulsory liability insurance. The fact that the fire engine's water cannon was in operation while driving cannot lead to a different result."
The High Court subsequently noted that "the accident is undoubtedly not covered by the provisions of the Road Traffic Act on compulsory liability insurance for motorised vehicles, as the accident did not occur on a road used for ordinary traffic by one or more types of traffic, cf. sections 101 and 105 of the Act, cf. section 1"
On this basis, the High Court concluded that "if the provisions were to be interpreted to the effect that the statutory liability insurance for motorised vehicles should also cover cases that fall outside the scope of the Road Traffic Act, it would be a disregard of the clear provisions of the Road Traffic Act and a breach of legal certainty and the predictability in the application of the law that must be required. Such an interpretation would thus be contra legem of Danish law and also mean that EU law would be given direct effect in a dispute between two private parties."
H.D. of 8 June 2023
The Supreme Court concluded, based on an interpretation of the insurance conditions of the motor liability insurance, that the conditions did not limit the local coverage to only include accidents within the area of the Danish Road Traffic Act.
Thus, according to the insurance terms and conditions, the motor vehicle insurance of company B also covered damage outside the general scope of the Danish Road Traffic Act and thus also on the field where the damage occurred.
As a result of the above, the Supreme Court did not consider whether it is possible to make an interpretation in accordance with the Directive: According to the above, the insurance contract between company B and Østjyllands Brandvæsen meets the requirements for the motor liability insurance's local coverage that follow from Article 3 of the EU's Motor Insurance Directive (Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009) and the European Court of Justice's interpretation thereof. The Supreme Court therefore has no reason to consider what would apply if the agreement did not fulfil the EU law requirements for the insurance's local coverage.
The Supreme Court concluded: "The damage occurred because the fire engine reversed on the field and during the reversing manoeuvre hit A. The Supreme Court therefore finds that the damage was caused by the use of the fire engine as a vehicle as stated in B's insurance conditions. The fact that the fire engine's water cannon was used while driving cannot lead to a different result."
According to the Supreme Court's judgement, the motor liability insurance must cover the costs of compensation for loss of support because the damage is covered Østjyllands Brandvæsen’s motor vehicle insurance in the company B.
Comments to the judgements
The Supreme Court's premises, according to which the fire engine is considered to have been in use as a motor vehicle, are short and specific. The decision's value in principle is therefore probably limited in relation to the question of in which cases a vehicle that causes damage is to be considered to have been in use as a working tool or as a motor vehicle.
The Supreme Court's result is in accordance with Article 3(1) of the Motor Vehicle Insurance Directive, but the Supreme Court does not consider whether it is possible to interpret the provisions of the Road Traffic Act in accordance with the Directive so that the compulsory motor liability insurance is obliged to cover claims for compensation for damage occurring outside the geographical scope of the Road Traffic Act, where the basis of liability is culpa. The Supreme Court's decision neither changes nor confirms the High Court's comments on contra legem, which must be read as meaning that section 105 of the Danish Road Traffic Act is contrary to the directive.
This leaves insurers in the situation that it is still not clear whether motor liability insurance is obliged to cover accidents outside the scope of the Danish Road Traffic Act under current Danish law.
