FACTS:

At 7.10 pm on the evening of 4th May 1995 the Claimant Alison Inman was sitting on the grass in Everton Park, Liverpool, 3.5 metres below the top of a grassy bank. She had her 2-year-old daughter with her. She was sitting with her back to the slope. The bank lay between a metalled path and some games pitches. Her partner and her 6-year-old son were playing football nearby.

 The first defendant, Edward Kenny, then aged 14 and uninsured, rode a friend’s motor cycle along the metalled path to a Y junction in front of the bank. He had built up speed to some 30 to 35 miles per hour. He then left that path, rode onto the grass through some trees up the slight incline to the top of the bank, a distance of 11 metres from for the metalled path and took off with both wheels of the motor cycle in the air. He landed 8 metres further on. There he and the motor cycle impacted with Ms Inman, causing her serious injuries. He was not aware of Ms Inman’s presence until it was too late to avoid hitting her.

The Claimant, Ms Inman commenced proceedings against Mr Kenny on 23rd April 1998 in the Liverpool County Court to claim damages for the injuries caused by his negligence. Judgment was obtained against him on 17th July 1998.

As the Defendant was not insured the Motor Insurers Bureau (“the MIB”) was joined as the second defendant. The MIB’s basic obligation set out in clause 2 (1) of the Uninsured Drivers Agreement 1998 is to satisfy any unpaid judgment in respect of “any relevant liability” in respect of which judgment is obtained against a person whether or not that person is covered by a contract of insurance. “Relevant liability” is defined by the Agreement as “a liability in respect of which a policy of insurance must insure a person in order to comply with Part VI of the Road Traffic Act 1992.”

The Recorder found there were three issues before him. The first was whether the ground over which Mr Kenny drove between leaving the metalled path and the take-off point was a road. I shall call that stretch of 11 metres “the grassy bank path”. The Recorder found in relation to the physical character of the grassy bank path that it was a defined path in that it was a depression in the grass. It had marked ascertainable edges and led from the junction of the metalled path to the top of the bank and in relation to its function that it did not have any function as a road, the only use to which it may have been put being as a take-off ramp. The Recorder therefore held that it was not a road

The second issue was whether the metalled path was a road. The Recorder answered that unequivocally in the affirmative.

The third issue was whether the accident arose out of the use of a vehicle on a road. The Recorder repeated that the grassy bank path was not a road and said that in relation to the use of that path the answer must be no. Further, he said the accident did not arise out of the use of a motor vehicle on the metalled path.

The Recorder answered the preliminary issue in the negative, which was the accident did not occur as a result of the use of a motor cycle on a road and refused leave to appeal. But on an oral application to the High Court made by Ms Inman for permission to appeal, Mr Justice Penry-Davey on 3rd July 2000 gave permission to appeal out of time and ordered the transfer of the appeal to this Court pursuant to CPR r.52.14.  

HELD:

Lord Justice Gibson found it impossible not to feel the greatest sympathy with Ms Inman, the innocent victim of appallingly reckless and inconsiderate behaviour by Mr Kenny in a public park. Gibson LJ found that he could not let that sympathy distort the position in law and found the Recorder correct in his decision. The Regulations which have been brought into effect in April 2000 do what Lord Clyde indicated should be done, that is to say, they alter the law by extending the remedy to be provided to an innocent victim who has been caused injury by an uninsured driver of a motor vehicle in a public place other than a road; but they do not do so retrospectively. Therefore the Regulations cannot assist Ms Inman.  Gibson LJ held that the Recorder’s decision was right and refused permission to appeal.

Chadwick LJ took the view, whether or not the liability was a relevant liability for the purposes of the Uninsured Drivers Agreement 1988 must be determined by reference to the law as it was at the time the liability arose. It has not been suggested otherwise. On that basis “relevant liability” was liability of a description contained in s.145 Road Traffic Act 1988. 

Chadwick LJ stated that Ms Inman had suffered serious injuries as a consequence of irresponsible and deplorable conduct on the part of the rider of the motor cycle in the case. The law has given her a remedy against him although the remedy was of no value to her. Chadwick stated ‘Enforcement of that remedy against him would produce no fruits.’ But, in the circumstances of the case, the law had not given her a remedy against the Motor Insurers Bureau. The position had changed on 3rd April 2000. But the law was not altered so as to assist this unfortunate plaintiff.  Chadwick LJ thus held that the appeal must fail. 

Lord Justice Keene agreed with both the judgements given.  Keene LJ referred to the House of Lords Judgment in Cutter in that the decision is not to be departed from because of the latter amendment due to the Motor Vehicles (Compulsory Insurance) Regulations 2000. 

The Appeal was refused with costs.

No related posts.