Motor Brief: latest decisions October 2019
A roundup of recent court decisions raising issues relating to use of a mobile phone while driving, the courts approach to incorrect figures in the Court Proceedings Pack, compensating victims of uninsured drivers on private land, and the concept of ‘use’ of a vehicle.
DPP unsuccessful in challenging overturned conviction for using mobile phone to film while driving
Director of Public Prosecutions v Ramsey Barreto [31.07.19]
The respondent had been convicted in the magistrates’ court for using his mobile phone to film the scene of an accident as he was driving past (contrary to the Road Traffic Act 1988 and the Road Vehicles (Construction and Use) Regulations 1986). This conviction was overturned by the Crown Court, which held that taking photographs or filming with a mobile phone did not amount to “using” it for the purposes of the relevant regulations. The DPP appealed.
The High Court concluded that the decision to quash the conviction was correct on the basis that:
“The legislation does not prohibit all use of a mobile phone while driving. It prohibits driving while using a mobile phone or other device for calls and the use of interactive communication functions (and holding it at some stage during that process).”
Lady Justice Thirwell (hearing the case with Mr Justice Goss), did however add that:
“It should not be thought that this is a green light for people to make films as they drive. As I have already said, driving while filming events or taking photographs whether with a separate camera or with the camera on a phone, may be cogent evidence of careless driving, and possibly of dangerous driving.”
Contact: Naomi North
Additional safeguard to address non-compliance with the MoJ Protocol
Matloob v EUI Ltd [17.07.19]
This personal injury claim for damages (including physiotherapy treatment) arising from an RTA, proceeded via the Ministry of Justice (MoJ) Portal. With settlement not being reached, the claimant submitted a Court Proceedings Pack (CPP) to the defendant with a view to commencing Stage 3 Proceedings and for the matter to be determined at an oral hearing.
However, when completing Part B of the CPP, the claimant’s solicitor amended the claimant’s offer to reflect a revised position in respect of physiotherapy treatment, meaning that it no longer reflected the final offer at Stage 2. The defendant objected on the basis that the Part B form must only contain offers that have been communicated on the Stage 2 Settlement Pack form, and requested a revised pack be provided.
The matter proceeded to a final Stage 3 oral hearing without a revised CPP being provided. The claimant was awarded damages, an additional punitive uplift in respect of damages and interest as a consequence of beating its own (incorrectly) amended Part B offer.
On appeal by the defendant it was held that the Part B Form must contain the final offer and counter offer from the Stage 2 Settlement Pack. Further, in the event that the amount listed on the Part B Form differs, then it is not a valid Protocol Offer. As a result of this, the order for an uplift of damages and interest was set aside.
Related item: Clarity from the courts on errors in a stage 3 Pack
MIB liable to compensate when the incident occurs on private land
MIB v Michael Lewis (a protected party) [05.06.19]
The claimant was walking on private land when he was struck by a vehicle. There was no doubt that the driver was negligent but he was uninsured. The claimant sustained serious injuries and pursued a claim for compensation against the driver, the MIB and the Secretary of State for Transport.
The MIB denied any liability to satisfy any judgment obtained against the driver as, pursuant to the Road Traffic Act 1988 (RTA), the accident had occurred on private land and as such did not fall within the definition of a ‘road’ and therefore insurance was not required.
The Court of Appeal held that the 2009 EU Directive conferred responsibility on the MIB as to provide compensation to victims of uninsured drivers on roads, private land and public places.
Contact: Mark Walsh
European Court of Justice decision on concept of ‘use of vehicles’
Linea Directa Aseguradora v Segurcaixa [20.06.19] EUECJ
In this case the European Court of Justice (ECJ) considered whether the concept of ‘use of vehicles’ (under the European Motor Insurance Directive 2009/103), “can be interpreted as applicable to circumstances in which a vehicle caught fire when it has been parked in a private parking space for over twenty-four hours”. The fire resulted in damage to the adjoining house.
The ECJ concluded that the relevant part of the Directive relating to insurance against civil liability in respect of the use of motor vehicles did apply in these circumstances.
The decision contrasts with that reached by the UK Supreme Court in R&S Pilling t/a Phoenix Engineering v UK Insurance Ltd [27.03.2019]. In R&S Pilling the Court held that a vehicle being repaired on private property (resulting in a fire and damage to the property) was not being ‘used’.
Following the European Commission’s review of the scope of the Directive, final agreement on an amended Directive following inter-institutional negotiations, is awaited. The extent to which the UK will determine its own future with regard to compulsory motor insurance, remains to be seen.
Contact: Jennifer Harris
- Supreme Court provides useful clarity on the issues of the ‘use’ of a motor vehicle
- Motor Brief market insights – May 2019