Law of Compulsory Motor Vehicle, The

ÖZLEM GÜRSES

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CHAPTER 5 The meaning of “use” of a vehicle

Significance of defining the term “use”

5.1 Identifying the “user” of a motor vehicle is the matter at the heart of motor vehicle insurance. Under the RTA 1988 s 145(3)(a) the compulsory liability insurance must cover “the use of a vehicle.” The crucial question is whether or not at a particular time a motor vehicle is being used. 5.2 It is the user’s obligation to insure his/her use of the vehicle. The liability of “user” as identified under the RTA 1988 is the relevant liability that is covered by the MIB in the absence of insurance.1 If the owner of the vehicle allows an uninsured person to use the vehicle civil liability may be imposed on the owner.2 The offences under the RTA 1988 with regard to “not having a valid insurance” or “not having a valid certificate” are attached to the use of the vehicle.3 Hence, identifying if the person who caused the loss was the user of the vehicle in question and if the accident that caused the injury amounted to the use of the vehicle are the starting points of the analysis of the compulsory motor vehicle insurance in the UK. 5.3 Does the term “use” of a vehicle include anything which is consistent with the normal function of the vehicle? Further, what functions of a vehicle fall under its “normal function”? The RTA 1988 s 143(1)(a) states “a person must not use a motor vehicle on a road [or other public place]” without having the insurance or security required by the Act. The section does not distinguish whether the vehicle is in motion or stationary, whether

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the owner’s intention to use or not to the vehicle is relevant or whether when a vehicle is towed by another vehicle that falls under the meaning of “use” in this context. Moreover, a question may be raised if carrying out some repairs on a motor vehicle amounts to its use? In this regard could a distinction be proposed between when repairs are carried out because the vehicle broke down during the course of a journey or when it was not making a journey but it did not pass its MOT. The uses on the road or other public place of diverse categories of vehicle vary greatly. This chapter attempts to provide a critical overview of the meaning of “use” as expressed by the statute and read by the common law courts as well as the CJEU.

Meaning

5.4 In determining what amounts to “use” of a vehicle emphasis should be put on the purpose of the RTA 1988 s 143 which is “to protect the safety and property of other road users.”4 5.5 The user principle is itself very broad.5 The RTA 1988 s 143(a) says nothing about driving; it refers to the use of the vehicle. The “user” concept is not confined to ownership6 and goes much further than the physical act of driving7 or operating.8 There are authorities which approved that a person who rides in his car while being driven by someone else is using, although is not driving, the vehicle.9 5.6 The broad reading of the word “use” in this context reflects the reality that a motor vehicle can pose a danger for others in its vicinity whether or not it is being driven; for example, from a fire or explosion due to petrol, oil or lubricants leaking or if its hand brake fails while parked. 5.7 What has to be covered by insurance is the use of the vehicle, not the person using the vehicle.10 It is true that typically a motor vehicle insurance policy insures the assured in respect of the ownership and user of a particular car, and the premium is calculated by considering the characteristics of the vehicle and the owner.11 However, there is nothing that prevents a user who is not the owner of the vehicle to be insured with respect of its use. The compulsory MTPL insurance requires cover in respect of third party risks only and accordingly that there is no necessity for the assured to have any insurable interest in the vehicle.12 5.8 It is worth noting here that the European Court of Justice stated that the concept of “use of vehicles” within the meaning of the compulsory MTPL insurance covered by the

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Directives is an autonomous concept of EU law which cannot be left to the assessment of each Member State.13 That interpretation has to take into account not only its wording but also its context and the objectives pursued by the rules of which it was part.14

“Use” is not confined to “drive”

5.9 A person uses a vehicle on a road if he has the use of it on a road.15 Authorities confirmed and it has recently been emphasised more heavily both in the European16 and domestic17 contexts that such use is not confined to the act of driving the vehicle.18 In Dunthorne v Bentley 19 about ten minutes before the accident, B had been driving her car but then parked with the hazard lights flashing as she was running out of petrol. She was seen by a colleague who stopped her motor car on the opposite side of the road. Following some shouted conversation, B ran cross the road,20 into the claimant’s path whose car struck B. B was fatally injured and the claimant suffered a serious head injury. The Court of Appeal held that B was using the car within the meaning of the RTA 1988 s 145(3) even though at the time of the accident she was not driving it. B would not have been crossing the road had her car not run out of petrol and because she was seeking help to continue her journey.

Causation

5.10 Section 145 of the RTA 1988 requires insurance to cover “the death of or bodily injury to any person or damage to property caused by, or arising out of, the use of the vehicle on a road or other public place.” It is a matter of fact and degree to determine if the relevant loss arose out of the use of a vehicle on a road or other public place.21 5.11 Historically, it was stated that a policy wording that provides cover for losses that have been “caused by or through or in connection with the insured car” expressed a wider coverage than the Road Traffic Act provided.22 Further, the case law has established that the phrase “arising out of” does not dictate a proximate cause test.23 It expresses somewhat a weaker causal connection and contemplates more remote consequence than is embraced by “caused by.”24 5.12 In Dunthorne v Bentley mentioned above, a collision took place between the claimant’s vehicle and B when B, after stopping her car upon running out of petrol, was running across the road to speak with her colleague who stopped on the other side of

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the road. In a claim brought against B’s estate it was held that the collision was caused by her negligence when seeking help to continue the journey in her car. B was using her car at the time of the accident. Rather than viewing her crossing the road in isolation, the Court considered what use of the car was being made by B at the time or immediately before the accident occurred.25 She would not have been crossing the road had her car not run out of petrol, causing her to seek help to continue her journey. 5.13 It follows that a driver of a parked car walking to the boot to get a can of petrol would be engaged in an activity arising out of the use of the car.26 Consequently, the words “arising out of use of the vehicle” would cover a case of an assured meeting with fatal injuries when filling the petrol tank or engaged in work on his car.27 5.14 The meaning of the words “arising out of” has been a matter of dispute in a number of occasions. A further clarification provided by the common law courts is that the term “arising out of” has a somewhat weaker causal connection than the words “caused by” that the former contemplates more remote consequences than those determined by the latter.28 5.15 Caution must be taken however in expanding the cover of the phrase so that “arising out of” is not given a strained meaning outside the purpose of the statutory requirement. This can be illustrated by Slater v Buckinghamshire CC.29 P, who had suffered Down’s syndrome, was knocked down by a car when he was about to be taken by a minibus to go to the centre where P used to spend weekdays. The minibus stopped on the far side of the road from P’s house to pick him up. An escort who crossed to the middle of the road shouted P “Stay there,” because there was a car coming. P however ran to the road and was hit by a car. The driver of the car was blameless. In an action against the minibus driver it was held that the accident was neither caused by nor arose out of the use of the minibus. It occurred when it did and where it did because P was making his way to board the minibus. To interpret “arising out of the use” to include the circumstances giving rise to P’s accident would be to give an utterly strained meaning outside the purpose of RTA 1988 section 145(3). What Slater makes clear is the importance of the causal link between the vehicle that is used at the time of the accident and the injury suffered. If the vehicle has no link with the accident that occurred, it cannot be argued that the accident and the injury have occurred as a result of the use of the vehicle.

Normal function of the vehicle

5.16 At the time of writing this chapter Vnuk v Zavarovalnica Triglav dd 30 gives authoritative guidance on the first paragraph of Article 3 of the Consolidated Directive.31 Vnuk was referred to in with regards to the meaning of motor vehicle. Another area that the Vnuk case introduced further clarification with regards to the compulsory MTPL insurance is that it extended the meaning of use to a wider level than it had been

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applied before. The accident occurred when a tractor to which a trailer was attached was reversing in the courtyard of the farm to position the trailer in that barn. The tractor was used when bales of hay were being stored in the loft of a barn. Whilst reversing the tractor struck the ladder on which V had climbed and caused V to fall. In an action by V against the insurers of the tractor the CJEU held that Article 3(1) of the First Directive32 was to be interpreted as meaning that the concept of “use of vehicles” covered any use of a vehicle that was consistent with the normal function of that vehicle.33 That concept might therefore cover the manoeuvre of a tractor in the courtyard of a farm in order to bring the trailer attached to that tractor into a barn.34

Is “normal function” of a vehicle confined to use as a means of transport?

5.17 The words “use of the vehicle on a road or other public place” under section 145(3) are not to be qualified as “use of the vehicle as a motor vehicle on a road.” The combination of domestic and EU law interpretation of the words “caused by or arising out of use of the vehicle” has reached that one of the main relevant questions is whether, at the time of the accident, what the vehicle was being used for was consistent with the normal function of the vehicle. 5.18 In the domestic context the Courts disfavoured qualifying the use of the vehicle only to be used as a motor vehicle in the sense that it must be used for transport at the time of the accident in order to fall under the compulsory MTPL insurance.35 The empha sis was put on the danger that such a qualification would privilege certainty of outcome over the breadth and flexibility that the statutory formulation provides.36 In Wastell v Woodward and Chaucer Syndicates Ltd 37 Master Davidson said that for the purpose of section 145(3) a vehicle is not required to be used qua motor vehicle. The relevant issue to be determined was “what was the relevant use of the vehicle on the road” and then “whether the accident arose out of that use.” 5.19 In Wastell v Woodward and Chaucer Syndicates Ltd the matter at stake was a vehicle that was being used as a hamburger van. It was parked in a lay-by. J, who was running it with his partner S, had adjusted a sign that he had placed on the opposite side of the road. When he was crossing the road to get back to his van he was hit by a motorcycle. J was killed, and the driver of the motorcycle was badly injured. In an action by the motorcycle driver against J’s insurer the Court held that the accident arose out of the use of the hamburger van. Slater v Buckinghamshire CC 38 mentioned above was distinguished as Master Davidson emphasised that the interpretation of “use” of a vehicle varies greatly. Section 145 (3) states “the use of the vehicle on a road or other public place in Great Britain.” The judge found it attractive at first that if the statute was qualified by the words “use of the vehicle as a motor vehicle on a road etc,” such a qualification would offer a test which was simple to apply and which was closely aligned

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with the principal purpose of any motor vehicle, namely locomotion.39 On the other hand, it would privilege certainty of outcome over the breadth and flexibility which the statute in its unadorned formulation provides.40 The law has developed in a way focusing on the particular use of the vehicle, be that a tractor, an ice cream van, a flatbed lorry, an ambulance, a car or whatever. The precedent cases, in the view of Master Davidson, did not require that the vehicle be used qua motor vehicle in order for the statute to be engaged. The question was set by Master Davidson as “What was the relevant use of the vehicle on the road?” and “whether the accident arose out of that use.” This is clearly a very broad and flexible interpretation of the words “use” which led to the conclusion that the hamburger van fell within the scope of section 145(3). 5.20 A further example is AXN v Worboys 41 in which the Court discussed the meaning of “arise out of” to a great extent. Worboys, after finishing his legitimate work as a taxi driver, offered to take women who were alone at night to their destinations. Once they accepted his offer, during their journeys, Worboys engaged them in conversation and persuaded them with lies to accept alcoholic drinks. The drinks, unknown to his passengers, contained sedatives and when they had taken effect, he carried out sexual assaults on his sedated victims. The victims brought claims against Worboys for damages alleging assault by poisoning, sexual assault and false imprisonment. The victims argued that they had a right of direct claim against the motor vehicle insurers who insured Worboys’ liability in respect of the matters of which complaint was made. The question against the insurers was whether the bodily injuries suffered by the victims arose out of the use of Worboys’ vehicle on a road or other public place within the meaning of RTA 1988 s 145(3)(a). 5.21 It was held that the chain between Worboys’ use of the taxi and the claimants’ injuries was broken by Worboys’ acts of using sedatives with drinks and committing sexual assaults. The Court found no link between the injuries suffered by the claimants and the use of the taxi on a road at the time when the claimants were poisoned and assaulted. Their claimants’ injuries arose not because of any wish to continue the journey, but instead because Worboys wanted to poison the claimants so as to facilitate and implement his wish to sexually assault them. This was a factor, which was not connected with the use of the taxi on a road.

EU law

5.22 It appears that, as also confirmed by the CJEU, the relevant period of time to assess the purpose of use of the vehicle is the time of the accident.42 The discrepancy between the authorities, however, has been observed in terms of whether the normal function of the vehicle is confined to be used as a means of transport. Wastell above decides it is not. Worboys, however, seems to support this restriction. In the context of the EU law, the CJEU has recently held that the determining test will be whether, at the

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time of the accident involving such a vehicle, that vehicle was being used principally as a means of transport.43 5.23 In Rodrigues de Andrade and another v Proença Salvador 44 although an agricultural tractor falls within the definition of motor vehicle, the CJEU held that it was not used as a means of transport at the time of the accident. In Rodrigues A was one of four workers applying herbicide to vines on the sloped terraces on the farm. The herbicide was contained in a drum with a spraying device mounted on the back of a tractor. It was necessary to run the engine of the tractor in order to operate the spraying device, but the tractor itself was stationary. There had been heavy rain that day and the land was slippery. A combination of the weight of the tractor, the vibrations of the engine, the movement of the herbicide hose and the condition of the land caused a landslip. The tractor fell down the terraces, reached the workers and landed on A with tragic fatal consequences. A claim was made against the employer’s liability insurers for material and against motor insurers for non-material damages. 5.24 As mentioned in , the CJEU ruled that a tractor fell within the definition of “vehicle,” in that it was a “motor vehicle intended for travel on land and propelled by mechanical power.” The question was whether it was being “used.” In Vnuk the vehicle in question was also a tractor which was in the courtyard of a farm and was reversing when the accident occurred. In Rodrigues, the tractor was stationary but being not in motion was not material to decide the case. The focus appears to be on the meaning of “normal function of a vehicle” which, in Rodrigues, was held to be “any use of a vehicle as a means of transport.” 5.25 In Rodrigues the purpose of the use of the tractor was to generate, as a machine for carrying out work, the motive power necessary to drive the pump of the herbicide sprayer. The tractor was stationary, but the engine was turned on to power the spray. Whether or not the tractor was stationary or the engine was running did not, in itself, preclude the use of that vehicle at that time from falling within the scope of its function as a means of transport.45 The tractor was nevertheless held not to have been used as a means of transport because the purpose of the use was to generate power for the herbicide sprayer. 5.26 The European Commission’s proposal to amend the Consolidated Directive is referred to in . In the light of the decisions of Vnuk v Zavarovalnica Triglav dd,46 Rodrigues de Andrade v Proença Salvador,47 and Nunez Torreiro v AIG Europe Ltd 48 the Commission proposed adding 1a to Article 1 of the Directive. Article 1a describes “use of a vehicle” meaning

any use of such vehicle, intended normally to serve as a means of transport, that is consistent with the normal function of that vehicle, irrespective of the vehicle’s characteristics and irrespective of the terrain on which the motor vehicle is used and of whether it is stationary or in motion.

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