It sounds like an obvious question, however if you delve a little deeper it is not entirely clear. There has been much debate between practitioners as to where the line is drawn. What difference does it make anyway?
The starting point is Part 45 of the Civil Procedure Rules, in particular, CPR 45.7 (4) (a)and I quote road traffic accident ”means an accident resulting in bodily injury to any person or damage to property caused by, or arising out of, the use of a motor vehicle on a road or other public place in England and Wales.”
To answer the question posed above, it can make a huge difference in terms of cost recovery. On one hand, a Claimant may be restricted to costs on a fixed basis (CPR 45.9) or on the other costs on a Standard Basis together with a success Fee of up to 100%. There is generally quite a few thousand pounds in difference between the two positions.
Seem straight forward so far? It’s not!
Given the potential outlay for insurers in terms of costs, no doubt you will appreciate that where possible, insurers would much prefer to deal with the Claimants costs on a Fixed Basis rather than on the Standard Basis.
It is this point which can lead to a dispute between the parties on their interpretation of “caused by, or arising out of, the use of a motor vehicle”. I suspect some of you may be saying “what it is straight forward”. A motor vehicle collides into the rear of another motor vehicle, Part 45 applies and the Claimant recovers fixed costs. Agreed it is black and white in these circumstances. However, some time ago I was approached by a client to represent him, in respect of the following circumstances which may persuade you to take a different view:-
Given the potential outlay for insurers in terms of costs, no doubt you will appreciate that where possible, insurers would much prefer to deal with the Claimants costs on a Fixed Basis rather than on the Standard Basis.
Mr Edge was involved in an incident whilst in the course of his employment. He was employed by White Rose Environmental to collect waste from various hospitals. On the 10.05.06 he was in the rear of his vehicle (which was stationary) moving around various Sharpsmart Transporters (large yellow bins) filled with waste. In doing so, one of the transporters became lodged causing the Claimant to twist his knee and sustain injury. It transpired that the Sharpsmart Transporter the Claimant was moving was unsuitable for the vehicle in question.
In the above circumstances, a claim was brought against the Claimants employer under the Manual Handling Regulations 1992. The claim was subsequently handled by the employer’s liability insurers and following successful negotiation “breach of duty” was conceded. A settlement was reached upon presentation of medical evidence without recourse to litigation.
I took a few deep breaths and drafted a suitably worded response, stating the obvious.
In the normal course of events I presented, on the Claimant behalf, his costs (on a standard basis) which were payable by the losing party. Upon presentation of the Schedule the paying party contended that fixed costs applied and offered costs in line with the Predictive Costs Regime (Part 45.9). I took a few deep breaths and drafted a suitably worded response, stating the obvious. One this was an Employers Liability Claim, two it was dealt with by the Employers Liability insurers and three presented due to a Breach of the manual Handling Regulations 1992.
I was met with a similar response in that this incident occurred in a public place, and taking the literal interpretation of Part 45 this incident was “caused by, or arising out of, the use of a motor vehicle”. In the circumstances, I proceeded to draft a Detailed Bill and issue Part 8 proceedings with a view to this particular issue being determined by the court as a preliminary point.
The court determined the point on the 24.11.09 and Counsel for the Claimant was Mr Jonathon Owen of Rope Walk Chambers. I have detailed the salient points directly from the Judgement below: –
1. This court is concerned with a costs issue which arises from a claim which has been compromised and which in itself arose from an accident on the 10th May 2006 when the claimant was injured whilst unloading Sharpsmart transporters filled with waste from the box van which he had been driving. He was employed by the defendant as a driver.
2. The court has to decide whether the facts of the case lead to a conclusion that this is a case to which section 2 of CPR Part 45 applies, i.e., is it effectively a road traffic accident case, or whether this is a case to which section 4 of CPR Part 45 applies, i.e., a dispute between an employee and his employer.
3. The court’s decision will have consequences in terms of the amount of costs recoverable by the claimant whose claim has been compromised in the sum of £5,000.
4. The facts insofar as they are known and as in part conceded by counsel for the claimant are that the claimant had driven the vehicle in question to the scene of the accident, which it is accepted was a public place. The claimant was then required in the course of his employment to unload Sharpsmart transporter units from the van. The claimant says that whilst attempting to move those units, or perhaps one in particular, he was required to use excessive force which caused him to twist and injure his knee. The court has to decide whether the claimant’s injury was caused by or arose out of the claimant’s use of the vehicle.
5. The court has been referred to various authorities which assist in making this decision. The case of Dunthorne relates to a driver who had run out of petrol and crossed the road to seek assistance and was sadly knocked down and killed. The Court of Appeal decided that there was a sufficient causal connection between the use of the vehicle, which had run out of petrol, and the accident for the court to find that this was a road traffic accident.
6. The Betty Green case involved a lady alighting from a bus onto a step placed by the coach driver. The step moved and the claimant fell and suffered injury and again the court found that this was a road traffic accident.
7. Cardiff City Council v Thomas was a case which arose from a defective engine in a vehicle which resulted in a piece of hot metal penetrating the floor of the vehicle, causing injury to Mr Thomas. The court found that this was a road traffic accident.
8. The application of the test of whether the injury was caused by or arose out of the claimant’s use of the vehicle depends on the facts in each case. The court has to be satisfied that there is a causal relationship between the use of the vehicle and the injury. There needs to be a direct or proximate relationship of cause and effect. The term “arising out of” extends this to a result which is less immediate but it still carries a sense of consequence. To quote Windeyer J in an Australian High Court decision in Government Insurance Office of New South Wales and Green v Lloyd, “it excludes cases of bodily injury in which the use of the vehicle is a merely causal concomitant not considered to be in a relevant causal sense a contributing factor.”
9. On the particular facts of this case the court does not find that the use of the vehicle is a contributing factor to the injury suffered and therefore does not find the necessary causal relationship to bring this case within the definition of a road traffic accident.
10. The court notes that in all the cases referred to by learned counsel there was some defect or failure of the vehicle or, in the case of Green, the step which was effectively added to the vehicle. Although it is possible to imagine cases where a defect was not necessary to bring the accident within the definition of a road traffic accident, this case is not, in the court’s opinion, one of those cases.
11. The court therefore finds that this case falls within section 4 of CPR45 for the purposes of assessing costs.
12. The court is grateful to both counsel for their assistance in determining this matter.
MR OWEN: Thank you, sir. Sir, in terms of the further conduct of this matter, the preliminary issue has been disposed of but that still leaves essentially the assessment of the claimant’s bill.
As can be seen on this occasion the Claimant was successful, however, practitioners should be very aware that each case turns on the specific facts of the case and ultimately the courts assessment of the “ causal relationship between the use of the vehicle and the injury”.
This case remains a good authority which can be used to persuade opponents to pay Claimants costs on the correct basis.