England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF MR JUSTICE LAWS

		Royal Courts of Justice Strand London WC2
		Monday, 26th February 1996

LORD JUSTICE ROSE: This is an appeal by the second defendants against a judgment of Laws J on the 9th September 1994 on a preliminary point. The litigation arises from a road traffic accident which occurred on the 20th March 1992. The plaintiff was driving his motor car on the A109 at about 7 p.m. when Mrs Bentley ran across the road into his path. The plaintiff's car struck her. She was fatally injured and the plaintiff suffered a serious head injury. He claims damages against the first defendants who are the administrators of Mrs Bentley's estate. It is admitted that the plaintiff's injuries were caused by Mrs Bentley's negligence in running across the road. The second defendants are Mrs Bentley's motor insurers.

The agreed facts show that 10 minutes or more before the accident Mrs Bentley had been driving her car on the same road. She ran out of petrol, parked with the hazard lights flashing and stood at the rear of her car. None of these acts caused or contributed to the accident. She was seen by a colleague who stopped her motor car on the opposite side of the road. Following some shouted conversation, Mrs Bentley ran cross the road and the collision occurred.

In January 1994 a judgment in default of defence was obtained against the first defendants 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 defendants under the terms of their motor insurance policy. Laws J decided that it did. It is against that decision that the second defendants appeal. The crucial question is whether the plaintiff'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 judgment 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 which 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, first, what use of the car was being made by Mrs Bentley at the time or immediately before the accident occurred? Secondly, was the accident caused by or did it arise out of that use? In answering those questions, the judge inferred from the facts agreed between the parties, which I have earlier summarised in their relevant respects, that Mrs Bentley was running across the road to obtain help, in particular, it appears, to get petrol to restart the car. He concluded that this was "closely and causally connected with her use of the car" and the resulting accident therefore "arose out of" such use.

Before this court Mr O'Brien QC, for the second defendants, appearing as he did for them in the court below, challenges both the inference drawn by the judge from the agreed facts and the judge's conclusion following from those inferences. Mr O'Brien advances 7 grounds of appeal.

First, he says Mrs Bentley's car had been safely and properly parked 10 minutes or more 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. Secondly, 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. Thirdly, the judge failed to give the statutory words their natural and proper meaning. Fourthly, the facts having been agreed between the parties, it was not open to the judge to re-write that agreement and to imply 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 the 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. Fifthly, if Mrs Bentley's motive in crossing the road were relevant, it could not be relied on to show that one set of facts (the plaintiff's injuries) were caused by another's use of the motor vehicle. Motive, submits Mr O'Brien, is irrelevant to user. Sixthly, there was no evidence to support the judge's findings as to Mrs Bentley's purpose in crossing the road. The original statement of facts was not evidence. Mrs Bentley's purpose was not in issue before the judge and, in any event, the purpose which he found was only one of several possible reasons why she might have been crossing the road. Mr O'Brien itemises a number of other possibilities such as her failure properly to hear or understand what her colleague was saying, an intention to refuse rather than accept help from that source, or the possibility that she was going to abandon her journey and her vehicle to the care of others. Or it may have been that she wanted some message to be conveyed to someone else or to talk about some entirely unrelated topic or possibly some combination of two or more of these other possibilities.

Seventhly, in the absence of any English authority, the judge's analysis of the Commonwealth authorities before him was misconceived. Mr O'Brien referred to two decisions from the courts of New Zealand: Commercial Union Insurance Company Limited v Colonial Carrying Company of New Zealand Limited [1937] NZLR 1041 and State Fire Insurance Office v Blackwood [1956] NZLR 128. He referred to two Australian authorities: Government Insurance Office of New South Wales v King [1960] 104 CLR 93 and Government Insurance Office of New South Wales v Green and Lloyd Limited [1965] 114 CLR 437. He also referred to two Canadian authorities: Law, Union & Rock Insurance Company v Moore's Taxi Limited (1959) 22 DLR (2d) 264 and Hubarewich v Nousek (1963) 43 DLR (2d) 306. The New Zealand authorities, he submits, require vehicular use, that is, the vehicle must be instrumental in bringing about the injuries. The Australian authorities exclude, he submits, accidents to persons away from vehicles. The Canadian authorities are, he submits, indistinguishable from the present facts and fatal to the plaintiff's case.

Despite the great skill and ingenuity of Mr O'Brien's submissions, I am unpersuaded by them, separately or together.

It is common ground in the light of Elliot v Grey [1960] 1 QB 367 that at the time Mrs Bentley crossed the road she was using the car even though not at that moment driving it, for a person uses a vehicle on a road if he has the use of it on a road.

I agree with Laws J, and Mr O'Brien accepts, that the phrase "arising out of" contemplates a more remote consequence than is embraced by "caused by". This is, indeed, the view of the High Court of Australia in the Green and Lloyd case. 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 by'.

Menzies J at page 445 said:

"The words `arising out of the use' have no doubt a wider connotation than the words `caused by the use'. To my mind, however, they do import a relationship between the use of the vehicle and injury which has some causal element in it."

Windeyer J said at page 447:

"The words `injury caused by or arising out of the use of the vehicle' postulate a causal relationship between the use of the vehicle and the injury. `Caused by' connotes a `direct' or `proximate' relationship, of cause and effect. `Arising out of' extends this to a result that is less immediate; but it still carries a sense of consequence."

For my part, that construction of the phrase "arising out of" by contrast with the phrase "caused by" is the only significant assistance to be derived by this court from the Commonwealth authorities.

So far as the New Zealand cases are concerned, it is to be noted that the comparable legislation in New Zealand is materially different from that which this court has to consider in that it refers to death or injuries "caused by or through or in connection with the use of" a motor vehicle. The New Zealand legislation does not contain the phrase with which this court is directly concerned -"arising out of". Apart from that question of construction in relation to the two phrases used in the English as well as the Australian and Canadian legislation, the matter, as it seems to me, must be determined by the facts of the particular case of which the Canadian and Australian authorities provide examples.

Turning then from principle to the facts of this case, I am unable to accept that Mrs Bentley's reason for being in the road when she came into collision with the plaintiff's motor car is irrelevant and should be disregarded. In my view, the reason why she was crossing was one of the factors which had to be considered when determining whether the accident was caused by or arose out of the use of her car. I accept that, as Mr O'Brien says, Elliot v Grey and Eden v Mitchell [1975] RTR 425, to which reference was also made, show that the intention of the owner of a motor vehicle is irrelevant to the question of whether or not at a particular time a motor vehicle is being used.

But in my judgment, it by no means follows that intention and motive are irrelevant to what can be said to have arisen out of the use of the vehicle. Indeed, this is demonstrated by Mr O'Brien's acceptance that a driver of a parked car walking to the boot to get a can of petrol would be engaged in an activity arising out of the use of the car. This, to my mind, shows that the reason for a pedestrian being in the road is or may be relevant to whether or not that which occurs arose out of the use of the motor car. The mere activity of crossing the road cannot, as it seems to me, be viewed in isolation. A pedestrian may cross a road as an end in itself, for example, to reach a shop or to walk where there are street lights in the hours of darkness, or as part of a longer journey on foot, or incidentally to some other activity, for example, to fetch water to refresh a horse or, indeed, to clean a motor car. In each case how the act of crossing the road is to be categorised and, in particular, whether it can be said to arise out of some other activity is to be judged objectively according to all the circumstances of the particular case including the reason why the pedestrian was there. To exclude consideration of the pedestrian's purpose would be an unwarranted disregard of common sense and to close one's eyes to potentially important information as to the origins of the act of crossing the road. It follows, in my judgment, that the judge was entitled to consider what Mrs Bentley's purpose was. To that end he drew inferences from the agreed facts. In my judgment, that is a role which a judge is not only entitled to perform but is, by our trial process, expected to perform.

The question then arises whether, on the material before him, the judge was entitled to draw the inference which he did as to Mrs Bentley's reason for being in the road, or whether, in the light of the other possible explanations to which Mr O'Brien referred, he should have drawn some other inference, looking at the whole of the circumstances in this case, which include the agreed fact that Mrs Bentley had run out of petrol and had been there for some 10 minutes or more. In my judgment, not only was the judge entitled to draw the inference which he did, namely that she was seeking help in order to assist her in resuming her journey, but that was the obvious inference, the one which, as a matter of probability, ought properly to have been drawn.

The learned judge expressed his conclusion in this way (page 12 F):

"(1) Mrs Bentley's running across the road was a negligent act which caused the plaintiff's injuries (as well as her own tragic death);

(2) That act was closely and causally connected with her use of the car; and therefore

(3) The plaintiff's injuries arose out of Mrs Bentley's use of the car, within the meaning of s145(3) of the Act of 1988."

With that conclusion I agree.

Once it is accepted, as it is by Mr O'Brien, that "arising out of" is a wider concept than "caused by", the question for the judge was essentially one of fact rather than law. This accident was caused by Mrs Bentley's negligence when seeking help to continue the journey in her car. It arose from her use of the car because she would not have been crossing the road had her car not run out of petrol and because she was seeking help to continue her journey.

Accordingly, for my part, despite the ingenuity of Mr O'Brien's submissions, I would dismiss this appeal.

LORD JUSTICE PILL: The issue in the case is whether the late Mrs Bentley's act in crossing the road was in all the circumstances an act arising out of the use of her motor car. Which side of the line did Mrs Bentley's conduct fall? The words require a judgment as to whether there is a sufficient nexus. There was an agreed statement of facts. An issue arose as to whether the learned judge was entitled to draw an inference as to Mrs Bentley's reasons for crossing the road on the facts agreed. I agree with my Lord that he was. There could be no sensible resolution of the issue which arose without the judge forming a view as to Mrs Bentley's reason for crossing the road. That reason was one of the relevant factors to be considered. The calling of such evidence as was available, for example that of Mrs Faulkener, may have assisted the judge to perform his task. However, the existence of an agreed statement of fact did not, in my judgment, disentitle the judge from drawing an inference arising from the facts. The inference which he drew was that Mrs Bentley was seeking help with refuelling her car. On a balance of probabilities, the learned judge held, she was seeking assistance from Mrs Faulkener. That is an inference of a general kind which not only was the learned judge entitled to make but was, I agree, correct to make. The judge does not appear to me to have drawn any more precise inference as to the form the assistance was to take. Nor could he have formed, on the limited material available, a more precise view.

There is a range of possibilities. That being the case, I have had more difficulty than my Lord in deciding whether the conduct of Mrs Bentley is properly categorised as arising from her use of the motor car. Had she, for example, been walking to the rear of the vehicle to fetch an emergency petrol can in the boot in order to fill the tank I would have had no difficulty. Walking across the road to seek assistance from a passing friend some time after having properly parked her vehicle gives me more difficulty.

In the High Court of Australia in Government Insurance Office of New South WalesvRG Green and Lloyd Limited 114 CLR 437 Windeyer J 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 causal concomitant not considered to be, in a relevant causal sense, a contributing factor."

Applying that test, I could not regard it as a general principle that an act performed by someone seeking assistance of some kind because his vehicle has broken down is necessarily conduct which arises out of the use of the vehicle.

A finding in the plaintiff's favour on the limited material available to the court appears to me to carry the danger that it may be thought to open the door to a range of situations which I would regard as properly falling on the other side of the line. I do not consider that any general principle is established by this decision. Having said that, I agree, although not without hesitation, that the learned judge was entitled to reach the conclusion he did.

LORD JUSTICE HUTCHISON: I agree that this appeal should be dismissed for the reasons given by my Lord. Laws J was, in my view, right to draw the inference that he did and I add nothing on that issue.

The real question in the case is whether Mrs Bentley's act in crossing the road was an act which arose out of her use of the vehicle that night. The judge, holding that her negligent act was closely and causally connected with her use of the car considered it did so arise. This was a matter to be decided in the light of all the circumstances of the case including the inference already referred to. It is easy to envisage facts which, on the one hand, plainly do and, on the other hand, plainly do not arise out of the use of the vehicle. The question for the judge, as is so often the case, was on which side of the line the present case fell.

I would accept that this is a case close to that line and I agree with the observations of Lord Justice Pill in that regard. However I am satisfied that, on the facts before him, the judge was entitled to reach the conclusion he did and I, too, would dismiss this appeal.

Order: Appeal dismissed with costs. Leave to appeal was refused.