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Title: Bikelawyer wins High Court liability case for biker seriously injured by hamburger van owner

Amount: Amount to be decided

The court held section 145(3) of the Road Traffic Act 1998 was engaged when the owner of a hamburger van walked into the path of an oncoming motorcyclist after stepping into the road when displaying a sign for the business. The accident was closely linked to 'using the van on the road' as a hamburger van.

The Facts

Mr Woodward owned a hamburger van which he parked in a layby and traded from on a regular basis. After adjusting his business sign, which was placed on the opposite side of the road, he stepped out into the road in order to cross back over to his van and collided with the Claimant.

The Claimant was travelling at 50mph on his motorcycle. Mr Woodward was unable to see the Claimant as the Claimant was behind a passing car. No blame was attached to the Claimant.

Mr Woodward was killed immediately and the Claimant was badly injured.

Mr Woodward and his estate did not have any funds nor did he have public liability insurance. Accordingly the Claimant wished to bring a claim against the Second Defendant with whom Mr Woodward had motor insurance.

Section 145(3) of the Road Traffic Act 1998 provides that compulsory motor insurance must insure the drivers named in the policy in respect of death or personal injury "caused by, or arising out of, the use of the vehicle on a road or other public place".

The court was asked to consider a preliminary issue, that being, did the accident arise out of the use of a vehicle on the road?

The Law

In Dunthorne v Bentley & Another [1998] RTR 428 the same question arose. The driver's vehicle had run out of petrol and had come to a standstill at the side of the road. As the driver ran across the road to speak with a colleague and obtain petrol, she collided with a passing car. The court held section 145(3) was engaged as the purpose of the driver to cross the road was to receive help and petrol which would have enabled her to continue her journey in her motor vehicle.

The case established a list of principles for courts to consider when faced with this question, including the term 'arising out of' includes a result that carries a consequence and that the purpose of the user of the motor vehicle is relevant.

The commonwealth case of Government Insurance Office (NSW) v RJ Green & Lloyd Pty Ltd [1966] HCA 6 has been very influential in this area. Here the court said the nature of the particular vehicle must be considered in every case. This approach was affirmed in Vnuk v Zavarovalnica Triglav DD [2015] CJEU 142 where the court held that "use of vehicles" in article 3(1) of the First Motor Insurance Directive 72/166/EEC meant "any use of a vehicle that is consistent with the normal function of that vehicle".

The Decision

The Claimant submitted this case was directly akin to Dunthorne as Mr Woodward had adjusted the business sign and was crossing back over the road to continue to use his hamburger van to produce and sell hamburgers.

Counsel for the Second Defendant submitted the motor vehicle was not being used as such and instead was being used as a stationary hamburger van with the purpose of selling burgers to passers-by. Furthermore the activity of placing and adjusting a business sign was a self-contained activity.

The Court held the arguments were finely balanced, but resolved the preliminary issue in favour of the Claimant. The relevant question to determine is what is the relevant use of the vehicle on the road and then ask whether the accident arose out of that use.

Here the relevant use of the vehicle was as a hamburger van, and the act of adjusting a sign to help produce sales of hamburgers and the subsequent collision with the Claimant was closely linked to the relevant use.

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