Charli Lewington (Claimant v The Motor Insurance Bureau
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Bryan |
| Judgment Date | 27 October 2017 |
| Neutral Citation | [2017] EWHC 2848 (Comm) |
| Docket Number | Case No: CL-2016-000639 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 27 October 2017 |
[2017] EWHC 2848 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
COMMERCIAL COURT
IN AN ARBITRATION CLAIM
(In Public)
The Rolls Building
7 Rolls Buildings
London EC4A 1NL
THE HONOURABLE Mr. Justice Bryan
Case No: CL-2016-000639
Mr. Andrew Ritche QC (instructed by Slater & Gordon) appeared for the Claimant
Mr. Stephen Worthington (instructed by Weightmans) appeared for the Respondent
Hearing date: 27 October 2017
A. Introduction
The parties appear before me today on the hearing of an appeal on questions of law under section 69(2)(b) of the Arbitration Act 1996 from the award of Richard Methuen QC, dated 26th September 2016, pursuant to the permission to granted by Mr. Justice Knowles CBE of 6th March 2017.
B. Questions of Law that Arise
The questions of law that arise concern the proper interpretation of section 185(1)(c) of the Road Traffic Act 1988, which it is common ground is to be interpreted in accordance with the principles identified in the Marleasing case ( case C-106/89) and, therefore, the wording and purpose of the relevant EC Directive. Since 1972 EC Directives have required Member States to impose compulsory insurance upon motor vehicles on land. The original EC Directive was 72/166/EC. With later Directives it was consolidated into EC Directive 2009/103/ EC, which is the relevant Directive in the present case (the "Directive").
There is a difference between the Road Traffic Act 1988, section 185(1)(c) and Article 1.1 of the Directive 2 in relation to which "motor vehicles" are required to be insured for use on roads. The former provides that "motor vehicle" means "a mechanically propelled vehicle intended or adapted for use on roads" (my emphasis) whilst the latter provides that "vehicle" means any "motor vehicle intended for travel on land and propelled by mechanical power" (my emphasis).
It is the Appellant's case that the Road Traffic Act has to be interpreted by the Arbitrator in accordance with the purpose of the Directive which was to provide protection for members of the public from the negligence of others who were driving vehicles with engines on public roads, but that the Arbitrator failed so to do as a result of erring in law as to the correct test under section 185(1)(c) interpreted in accordance with Marleasing principles.
C. The Circumstances of the Accident
The appellant in this case is Charli Lewington. On 23rd February 2012 Ms. Lewington suffered serious injuries caused by the negligence of a criminal who stole a Bell B30D articulated dumper truck, drove it on a public road and caused a crash that resulted in Ms. Lewington's injuries which included a fractured neck, spinal injuries and a severed artery in her left arm, after which the criminal ran off and has never been traced.
More specifically, and I take this from the Defendant's Skeleton Argument, at about 10.45pm on 23rd February 2012 the Appellant was driving her Ford Fiesta car on the A120 near Felsted in Essex. The A120 is a dual carriageway with a speed limit of 70 miles per hour. It was dark and the road was unlit. Unknown to the Appellant there were two large earth movers or dumper trucks on the road in front of her which had been stolen from a quarry. They were unlit at the rear. With a published maximum speed of 33 miles per hour, they were travelling relatively slowly. The Appellant was following her uncle's vehicle which suddenly swerved to avoid the rear most earth mover. She swerved too, but lost control and went off the road as a result of which she was injured. The drivers of the earth movers made off and were never traced. So the Appellant applied to the Defendant, the Motor Insurers Bureau (the "MIB"), for compensation under the Untraced Drivers' Agreement 2003.
There are pictures of a Bell B30D dumper truck in the bundle before me and, as the Arbitrator referred to in his Award, it was described by the police who attended the accident as being like a large yellow Tonka toy, which seems to be an apt description. It is a very sizable dumper truck and at 2.99 metres wide, it is wider than the 2.5 metres width restriction in the Construction and Use Regulations 1986 governing the use of vehicles on the road, although there are provisions in the Road Vehicles (Authorisation of Special Types) Order 2003 which may allow registration and taxing of particular special types of vehicle including engineering plant if they fall within its terms. There is something of a dispute between the parties as to whether in fact this particular Bell B30D could or could not fall within that Order as to registration and taxing.
D. Background to the Road Traffic Act and the Motor Insurers Bureau
The Road Traffic Act 1988 (the "RTA") protects the public by imposing an obligation to insure drivers of motor vehicles used on public roads and other public places. The MIB, the Respondent to the present appeal was created in 1946 to protect the public against criminals who failed to comply which the obligation to insure under the RTA. The MIB is required to compensate innocent victims of negligent criminals who drive without insurance under the Uninsured Drivers Agreement 1999 or who crash and drive away without stopping under the Untraced Drivers' Agreement 2003 (the "UDA"). The UDA applied to this road traffic accident and provided the claimant with the right to apply directly to the MIB for compensation.
The UDA sets out a procedure under which the MIB was required to investigate the application and determine whether it was required to pay compensation and how much. The MIB refused the Claimant's application on the ground that the unidentified driver was not required by law to insure the Bell to drive on a public a road. Under their interpretation of section 185 of the RTA the Bell was excluded from the insurance obligation because its main use was for transporting heavy loads off road (for instance at gravel quarries) and not for driving on public roads, so it was not a "motor vehicle". The Claimant appealed to the Arbitrator.
In his preliminary decision the Arbitrator found that the accident was caused by the negligence of the unidentified driver of the dumper truck which Ms. Lewington swerved to avoid. The MIB did not challenge that finding at the oral arbitration hearing.
E. The Issues before the Arbitrator
It was common ground before the Arbitrator at the oral hearing, as the Arbitrator noted in his Award at paragraphs 13 to 18, that in order to be entitled to an award under the agreement Ms. Lewington had to prove two things:-
(1) That the dumper truck was a motor vehicle, and
(2) That the dumper truck required motor insurance.
The Arbitrator found against the Appellant on both points, upholding the MIB's interpretation of section 185(1)(c) of the RTA.
F. Facts Found by the Arbitrator
In his Award the Arbitrator first addressed the Bell B30D dumper truck and its characteristics and made factual findings in that regard that it will be necessary for me to return to after considering the applicable legal principles of interpretation and the Arbitrator's findings in that regard.
The Arbitrator found that the dumper truck had the following characteristics:-
(1) It had a driver's cab, a windscreen, windscreen wipers, a steering wheel, a speedometer, wing mirrors, an engine, a gear box, six wheels and rubber tyres (paragraphs 32 and 33 of the Award).
(2) It had front lights (see paragraph 36 of the Award) and a flashing roof light (paragraph 43(iii) of the Award).
(3) It had no rear lights (paragraph 40 of the Award).
(4) It was big and could move fast with a top speed of 33 miles per hour (paragraph 43(i) of the Award).
(5) It could be driven on roads and be very dangerous to other road users.
(6) It was wider at 2.99 meters than the 2.5 width restriction in the Construction and Use Regulations 1986 (paragraph 43(ii) of the Award).
(7) The Road Vehicles (Authorisation of Special Types) Order 2003 allowed registration and taxing of special types of vehicles including "engineering plant" and dealt with specifically with permitting them, to go by road to and from repair garages and work sites (paragraph 42(v) of the Award).
(8) At paragraph 81 of his Award the Arbitrator also found that, "It may have been possible to render the use of the Bell lawful", by registering it under the 2003 Order.
(9) Some wider similar Bell articulated dump trucks (the B50D, which is 3.7 meters wide, i.e. even wider), have been registered for road use by Bell UK as a special type of vehicle (paragraph 43(vi) of the Award.
(10) Some Bell B50D's were used at China Clay quarries in Cornwall and registered for road use to enable them to take clay from a quarry via a public road to another site (paragraphs 43(iv) and 86 of the Award).
(11) Plant hire businesses offered articulated dumper trucks for hire, DVLA registered and insured for £1,100 per week (that was based on the expert evidence that the Arbitrator heard, and he made a finding in that regard at paragraph 43(vii) of his Award).
(12) A firm, Richard Marshall, hired out Bell articulated B30D dump trucks with "low ground pressure tyres [which] are very advantageous on all roads and dig and tip areas", and "All machines come with up to date service records, certificates of newness, daily tick sheets and insurance documentation)" (paragraph 46 of the Award).
(13) The arbitrator also found, and noted, at paragraph 45 of his Award that a Bell B30D was photographed on...
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