Zurich success underlines the definition of “same damage” in face of challenge from police commissioner

Navid Doroudvash v Zurich Insurance Plc (1) The Commissioner of the Police for the Metropolis (2) [2025] EWCC 10

Can a motor insurer sued directly under the European Communities (Rights against Insurers) Regulations 2002 (the 2002 Regulations), bring a Part 20 claim in its own name pursuant to the Civil Liability (Contribution) Act 1978? Lauren Flanagan, Complex Injury Partner and Keoghs lead on the case, examines an interesting recent decision from the County Court.

This case - with its striking procedural background - came before the County Court at Central London on an application by Zurich to bring an additional claim for contribution or indemnity against the Commissioner. The hearing also dealt with a separate application by the claimant to add the Commissioner as a second defendant after the expiry of the limitation period.

Zurich’s application appears to deal with a point that is not known to have been raised before or at least is not the subject of a reported judgment. Notwithstanding the factual background, the Commissioner opposed the application on a technicality that may surprise those who deal regularly with motor claims.

The court found its way to a sensible conclusion that hopefully puts to bed an argument that had the potential to completely undermine the purpose and scheme of the 2002 Regulations.

The facts

The claim arose from a collision on the Uxbridge Road in London. Police Constables Sehmi and Doroudvash (the claimant) were responding to a 999 call, with PC Sehmi driving and the claimant in the front seat as passenger. PC Sehmi was driving at 87mph on a road with a speed limit of 30mph, when he collided with a vehicle driven by Mr Tarnowski, Zurich’s insured, who was emerging from a minor road.

Before reaching Central London County Court, this collision had been the subject of concluded proceedings in two other courts:

• PC Sehmi was convicted at Southwark Crown Court of causing serious injury by dangerous driving and was sentenced to a suspended term of imprisonment (Mr Tarnowski was not reported for any driving offences).
• Mr Tarnowski, under separate representation, issued a claim in the High Court for his personal injuries, naming as defendants PC Sehmi and the Commissioner. In her defence, the (then) Commissioner not only admitted liability on the basis that she was statutorily liable for the driving of PC Sehmi (s.88 of the Police Act 1996), she took the unusual step of explicitly pleading that “no allegations of contributory negligence are pursued”. On that 100% basis, Mr Tarnowski’s claim settled pre-trial.

Following these proceedings, Mr Doroudvash sent a CNF to Zurich on 1 May 2018, exercising his rights under the 2002 Regulations. On 23 May 2018 Zurich admitted liability in full for the accident.

In June 2020 Mr Doroudvash issued a Part 8 claim form and thereafter was permitted stays to collate medical evidence. Following collation of the evidence, he indicated that he would seek damages in excess of £200,000. The parties agreed that the matter should proceed under Part 7, with PC Doroudvash issuing and serving Part 7 proceedings that named only Zurich as the defendant.

Zurich indicated its intention to withdraw the admission of liability and, in the face of opposition by the claimant, applied in September 2023.

The application was heard by DJ Griffiths, who delivered judgment in June 2024 permitting Zurich to withdraw its admission of liability.  DJ Griffiths factored in as “highly relevant” the conviction of the other driver and that in the High Court proceedings the Commissioner had accepted statutory liability and had explicitly refused to allege contributory negligence against Mr Tarnowski.

Prior to the hearing before DJ Griffiths, Zurich had already made its application to seek a contribution or indemnity from the Commissioner.

Zurich’s application - submissions

It was argued that the insurer found itself embroiled in County Court proceedings in relation to a collision for which another party – the Commissioner – had already accepted 100% responsibility in High Court proceedings. Moreover, the Commissioner’s driver, PC Sehmi, was successfully prosecuted for a driving offence relating to the collision, whereas Mr Tarnowski was not prosecuted or considered for any offence. Therefore, Zurich applied to “bring in” the “true defendant”, i.e. the Commissioner, in circumstances where PC Doroudvash persisted with his claim against Zurich. Keoghs sought to exhaust avenues that did not engage the court’s resources but was left with no choice but to pursue this application. 

It was submitted that Zurich’s application engaged and satisfied the overriding objective of enabling the court to deal with cases justly. Adding the Commissioner would enable full participation (CPR r.1.1(2)(a)) and would deal with as many aspects of the case on the same occasion (CPR r.1.4(2)(i)) as possible, in circumstances where the claimant persisted with his claim against Zurich. It was also argued that the Commissioner should be included within these proceedings to ensure the administration of justice was not prejudiced, in circumstances where proceedings in two other domestic jurisdictions were inconsistent with the outcome the claimant sought in the county court.

The Commissioner revealed the basis of his opposition to the application not long before the hearing. Counsel for the Commissioner argued that no contribution claim could be brought against him as a claim brought under section 3(2) of the 2002 Regulations is not the “same damage” for the purposes of section 6(1) of the Civil Liability (Contribution) Act 1978. It was argued on behalf of the Commissioner that one is a claim against an insurer, limited under the 2002 Regulations to the extent of its own liability to the insured person; the other is a direct cause of action against a tortfeasor. Case law was placed before the court where the meaning of “same damage” has been considered when an insurer is sued, either pursuant to the Third Parties (Rights Against Insurers) Act 2010 following the recent decision (apparently under appeal) in Riedwig v HCC and others [2024] EWHC 2805 (Ch), or as section 151 Road Traffic Act insurer, and seeks to bring a contribution as per Jubilee Motor Policies Syndicate at Lloyds v Volvo Truck & Bus (Southern) Ltd [2010] EWHC 3641 (QB). It was argued that the same interpretation should be applied to the 2002 Regulations.

In oral submissions responding to the Commissioner’s late declared position, counsel for Zurich drew the court’s attention to the following provisions:

2002 Regs, r.3(2):

the entitled party may, without prejudice to his right to issue proceedings against the insured person, issue proceedings against the insurer which issued the policy of insurance relating to the insured vehicle, and that insurer shall be directly liable to the entitled party to the extent that he is liable to the insured person.

Police Act 1988, s.88:

The [CPM] shall be liable in respect of any unlawful conduct of constables under his direction and control in the performance or purported performance of their functions in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and accordingly shall in the case of a tort be treated for all purposes as a joint tortfeasor.

Counsel for Zurich argued that if the Commissioner was right then insurers who are sued directly under the 2002 Regulations would be hamstrung and would need to add their own insured as a defendant in order to exercise their subrogated rights to seek a contribution through the insured which would blunt the effect of the 2002 Regulations. The Commissioner’s position was misconceived because the words “directly liable” in Regulation 3(2) of the 2002 Regulations have the effect that the insurer becomes the tortfeasor, or it is as if it were the tortfeasor.

The decision – success for Zurich

• The condition precedent of “same damage” as required by the 1978 Act was acknowledged.
• Both the Commissioner and Zurich owe the same sum to PC Doroudvash. By way of example, were Zurich to pay PC Doroudvash’s claim for care and assistance in full, PC Doroudvash could not claim that sum against the Commissioner.
• The damage claimed against Zurich in this case is precisely the same damage that PC Doroudvash would have sought had he sued Mr Tarnowski direct. The claim against Zurich is formulated in identical terms to how it might have been framed against Mr Tarnowski. It was difficult to see a clearer case of where the damage was the same.
• Even though the right that gives rise to the remedy is different, that “is not the point”. The purpose of the 1978 Act was to do away with such differences.
• By virtue of the 2002 Regulations, Zurich steps into the shoes of the tortfeasor and defends the claim in the same way as Mr Tarnowski would have done (subject to any additional defence it may have to avoid the policy, or if there was a limit of indemnity).
• The position under the 2002 Regulations is plainly different to an insurer’s obligation to indemnify under s.151 of the Road Traffic Act 1988. The RTA 1988 does not render the insurer liable for the claimant’s personal injuries, rather it requires the insurers to be liable for an economic loss. The judge found this to be “materially different from an insurer who is directly liable to the person who has suffered the damage, as is the position under the 2002 Regulations”.
• The limitation of liability in the 2002 Regulations “to the extent that he is liable to the insured person” does not change the position.
• The clear policy purpose of the 2002 Regulations was to simplify personal injury litigation arising out of road traffic collisions. Such claims are almost always defended by an insurer. It is not uncommon for more than two vehicles to be involved in collisions, and in those cases issues of contribution will arise. The Commissioner’s arguments would suggest that the 2002 Regulations could not be used in such situations. That would add an unfortunate additional complexity to these types of cases, increasing costs and using up more court time, which “would be most unfortunate”.

Practice points

The decision provides useful clarity that an insurer sued under the 2002 Regulations is not restricted by the 1978 Act from seeking in its own name a contribution or indemnity from another tortfeasor.

A contrary decision would have undermined the purpose of the 2002 Regulations. Where an indemnity or contribution might be sought, insurers would have had to require proceedings to be issued and served on their insured, and/or would have had to take steps to join their insured as a defendant to enable a 1978 Act claim to be pursued. These are steps the 2002 Regulations were intended to obviate. This decision upholds the sensible and pragmatic status quo.

Anecdotally, the 2002 Regulations have operated satisfactorily for over 20 years, so the Commissioner’s position may be regarded as surprising. It seems it is an argument that has not been run previously, or if it has it had not succeeded.

It is fair to observe that there have been several authorities in recent years examining the scope of “same” damage (several of which were put before HHJ Holmes), so it is helpful to have this clarity on the interface between the 1978 Act and the 2002 Regulations.

Lauren Flanagan and William Fitch, Keoghs, were instructed by Zurich, with Jamie Clarke, Crown Office Chambers, appearing as counsel.