FACTS:

Mrs Bentley had been driving her car when she ran out of petrol. She had parked her car with the hazard lights flashing and stood at the rear of the car. After about 10 minutes, she had been seen by a colleague who had stopped her car on the opposite side of the road. Mrs Bentley ran across the road into the path of the Claimant. The Claimant’s car struck her. She was fatally injured and the Claimant suffered a serious head injury. The Claimant claims damages against the First Defendant who are the administrators of the Mrs Bentley’s estate. It was admitted that the Claimant’s injuries were caused by Mrs Bentley’s negligence in running across the road. The Second Defendants are Mrs Bentley’s motor insurers.

In January 1994 a judgement in default of defence was obtained against the First Defendant for damages to be assessed. The Second Defendants were then joined and the action stayed pending determination of a preliminary point as to whether liability should attach to the Second Defendant under the terms of their motor insurance policy. Justice Laws decided that it did. He inferred that Mrs Bentley had been running across the road to obtain help and this was “closely and casually connected with her use of the car” and the resulting accident therefore “arose out of” such use.

The Second Defendants appealed that decision in the Court of Appeal before Lord Justice Rose, Lord Justice Pill and Lord Justice Hutchison.

HELD:

Lord Justice Rose determined that the crucial issue in the appeal was whether the Claimant’s injuries were “caused by or arising out of the “use by Mrs Bentley of her motor car.

If they were, the Second Defendants are obliged by section 151 of the Road Traffic Act 1988 to satisfy the judgement obtained against her estate, for Mrs Bentley’s policy with the Second Defendants precisely followed the wording of section 145 (3) (a) of the Act imposes an obligation on the user of a motor vehicle to ensure against liability to third parties for death or bodily injury “caused by or arising out of the use of a vehicle on a road in Great Britain”

Two questions arise, (1) what use of the car was being made by Mrs Bentley at the time or immediately before the accident occurred? (2) was the accident caused by or did it arise out of that use?

Counsel for the Second Defendants advanced seven grounds of appeal;

(1)               Mrs Bentley’s car had been safely and properly parked for at least 10 minutes earlier. This amounted to use of the vehicle on the road, but running across the road was not incidental to using the vehicle to park and the injuries arose not from her use of the car but from her decision as a pedestrian to run across the road.

(2)                Crossing the road to get help to restart her journey did not constitute use of the vehicle and her motive in crossing the road could not alter the use to which the vehicle was being put

(3)               The Judge failed to give the statutory words their natural and proper meaning

(4)               The facts having already been agreed between the parties, it was not up to the judge to re-write that agreement and to implu matters which were not necessary to be implied in order to give efficacy to the agreement; nor was it open to the judge to draw inference which he did as to why Mrs Bentley crossed the road; nor should he, even had it been open to him to draw that inference, to have drawn it in the light of the material before him

(5)               If Mrs Bentley’s motives were relevant, it could not be relied on to show that one set of facts were caused by another’s use of the motor vehicle. Motive is irrelevant to user.

(6)               There was no evidence to support the judge’s finding as to Mrs Bentley’s purpose in crossing the road.

(7)               In the absence of any English authority, the judge’s analysis of the Commonwealth authorities before him was misconceived.

His Lordship was not persuaded by any of these submissions, he did however praise Counsel for the Defendant on his great skill and ingenuity in his submissions.

The case of Elliot v Grey [1960] 1 QB 367 weighed heavily on his lordships mind, for a person uses a vehicle on a road if he has the use of it on a road.  Therefore, when Mrs Bentley crossed the road she was using the road. He was also heavily influenced by the Australian case of Government Insurance Office of New South Wales v Green and Lloyd Limited [1965] 114 CLR 437. At page 443 Barwick CJ says;

“I think the expression arising out of” must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is required to satisfy the words caused”

Windeyer J at page 447 said

“the words injury caused by or arising out of the use of the vehicle” postulate a casual relationship between the use of the vehicle and the injury. Caused by “connotes a direct or proximate relation, of cause and effect. Arising out of extends this to a result that is less immediate; but still carries a sense of consequence”

Lord Justice Rose came to the conclusion the Mrs Bentley’s running across the road was a negligent act which caused the Claimant injuries, that act was closely and casually connected with her use of the car and the Claimants injuries arose out of Mrs Bentley’s use of the car, within the meaning of section 145 (3) of the 1988 Act.

He ended by determining that “arising out of “ is a wider concept than “caused by” and therefore, one accepted, the question was essentially of fact rather than law. The accident arose from her use of the car because she would nto have been crossing the road if her car had not ran out of petrol.

He dismissed the appeal.

Lord Justice Pill agreed, although without hesitation, that the learned judge was entitled to reach the conclusion he did. He agreed with his learned judge that on the balance of probabilities Mrs Bentley was seeking help from her friend and the inference which he made was the correct one, on the limited material available.

He made specific reference to the Australian case of Government Insurance Office of New South Wales v R G Green and Lloyds Limited 114 CLR 437. Justice Windeyer said at page 447;

“Arising out of” extends this to a result that is less immediate; but it still carries a sense of consequence. It excludes cases of bodily injury in which the use of the vehicle is a merely casual concomitant not considered to be, in a relevant casual sense, a contributing factor”

Lord Justice Pill could not agree that someone seeking assistance is necessarily conduct that arises out of use of a vehicle. He was also worried that this could give rise and open the door to a range of situations which could fall on the other side of the line.

Lord Justice Hutchison agreed with his fellow Lords.

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