Principle 9:
The victim’s right to compensation should not be affected by contractual clauses between the driver, keeper of the vehicle or any other tortfeasor on the one hand and their insurer on the other that may reduce the latter’s obligations vis-à-vis the insured.
Contract clauses shouldn’t have a negative impact on the rights of victims. That’s the inspiration driving Principle 9 of the Charter of Road Traffic Victims’ Rights.
Victims weren’t involved in agreeing a specific contract between an insurer and the policyholder, so their right to fair compensation shouldn’t be impacted.
The need for Principle 9 comes from situations that arose in the past. Some motor insurance policies may be designed to offer reduced cover to the person holding that policy in the event of certain circumstances. For example, more limited cover might take effect if the insured person was driving under the influence of alcohol or drugs.
Previously, such contractual clauses within motor insurance policies may have been invoked as a means of reducing the compensation provided to the victims of road traffic accidents. Basically, the insurer may have invoked limitations of cover (due to those policy clauses) against the insured person and effectively, those same limitations would then have applied to the victim.
The result being the victim didn’t get the full level of compensation they were due.
Thankfully, over time that practice has been limited or completely eroded, either by way of legislation or through the jurisprudence applied in different courts and tribunals. In many countries, national legislation has already given the victim their own ‘right of claim’ against the insurer.
This effectively prevented the insurer from using the contractual clauses to reduce the victim’s claim or the level of compensation provided. Principle 9 of the Charter seeks to apply that same protective approach.
Afterall, victims are not party to these ‘contracts’. They certainly didn’t have any say in the agreements reached between the insurer and the insured party. So they shouldn’t then be subjected to specific limitations that might apply.
The point behind motor insurance is broadly meant to offer protection on a twofold basis. Firstly, it is designed to protect the insured person or policyholder (the driver or keeper of the vehicle) against liability that may arise due to an accident.
The second point is to protect the victims of road traffic accidents in which the insured vehicle is involved.
Victims are external to these agreements. They didn’t agree to any particular stipulations or restrictions. How could they? Therefore, their rights should be ringfenced and protected, so that they are not diminished in situations where these clauses exist.
Clauses certainly can still apply between the insurer and the policyholder. Both of those parties agreed a contract and, as long as it complies with motor insurance law, the particulars of that contract may impact both the insurer and the policyholder. So, if that contract offers the insurer certain rights against the policyholder based on particular situations (for example drunk or drug affected driving), then those can be implemented.
But as previously referenced, that agreement is only between the insurer and the policyholder. Victims should remain immune and their rights to compensation should not be diminished.
So, if there are motor insurance policy clauses in place that impact the level of cover provided to the policyholder, Principle 9 of the Charter of Road Traffic Victims’ Rights makes it clear that victims won’t be affected and they should still receive the full level of compensation they are due.
