England and Wales High Court (Senior Courts Costs Office) Decisions

IN THE SENIOR COURTS COSTS OFFICE
FROM EDMONTON COUNTY COURT

		Clifford's Inn, Fetter Lane London, EC4A 1DQ
		18 July 2011

Master Campbell:

1. This judgment addresses the following issue: did the Claimant, Mrs Schneider, suffer injury in a road traffic accident, in which case her costs are limited to those fixed under the recoverable costs regime in CPR rule 45 Part II; or are they "at large" because the accident was an accident, but not a road traffic accident and accordingly her costs are recoverable without limit, subject to being proportionate and reasonable? I heard argument on this issue on 24 June 2010, when Mrs Schneider was represented by Mr Mark James of Counsel. For the Defendant ("Door2Door") Miss Jarratt appeared before me; both advocates lodged skeleton arguments together with bundles of authorities. I reserved judgment.

THE FACTS

2. These are agreed. The following, taken from Mrs Schneider's Solicitor's letter before action dated 15 July 2008, sets out the background:

"The circumstances of the accident were that our client was offered transport by the Trust [University College London Hospital] after an appointment at the National Hospital for Neurology and Neuro Surgery. This appointment took place in the Orthotics Clinic at 1.45 pm [on 9 June 2008]. Our client was waiting with another patient. Transport was provided by yourselves. It would appear that the driver was Mark Hill. They were both informed by your driver, who saw them in the out-patient's section, that the steps at the side of the transport vehicle were not working. They were supposed to unfold so that the patients could use them to gain access to the vehicle. Instead, the driver offered our client a steep ramp which was for wheelchairs or passage through the central part of the vehicle. She chose the latter. She was holding on to two contact points (one of which was definitely a handle). She placed her foot high up and this was on the floor of the vehicle. As she transferred weight onto the right foot, she felt her hip dislocate."

3. The letter of claim was initially sent to the NHS Trust, but subsequently re-directed to Door2Door (the vehicle owners) and their insurers, QBE, on 20 November 2008. QBE acknowledged the claim on 12 December 2008 and denied liability. Following a pre-action disclosure application, the claim was settled without recourse to the courts on the basis of an acceptance by Mrs Schneider of an offer made by Door2Door under CPR Part 36 in the sum of £5,000.
4. The Part 36 offer carried a "deemed" costs order in Mrs Schneider's favour. Unfortunately, the costs could not be agreed, and in these circumstances on 3 November 2010, Part 8 "costs only" proceedings pursuant to CPR 44.12A were issued in the Edmonton County Court. By his order dated 6 December 2010, District Judge Silverman transferred the costs assessment to the SCCO under CPR PD s.31.1A where the matter was balloted to me. Mrs Schneider's bill seeks a total of £22,982.91 including VAT and disbursements, whereas it is Door2Door's case that the costs should be limited to those payable under the fixed costs regime in CPR 45 Section 2, so that no more than £800, plus 20% of the damages calculated at £1,000 and a success fee of 12.5% plus VAT together with a reasonable sum for the disbursements listed in CPR.45.10 (2), would be payable

THE LAW

5. Rule 45 provides as follows:

"Scope and Interpretation

45.7 –

(1) This Section sets out the costs which are to be allowed in –

(a) costs-only proceedings under the procedure set out in rule 44.12A;

…

(2) This Section applies where –

(a) the dispute arises from a road traffic accident;

(b) the agreed damages include damages in respect of personal injury, …

(c) the total value of the agreed damages does not exceed £10,000;

…

(4) In this Section –

(a) '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;

(b) 'motor vehicle' means a mechanically propelled vehicle intended for use on roads; and

(c) 'road' means any highway and any other road to which the public has access and includes bridges over which a road passes.

Application of Fixed Recoverable Costs

45.8 Subject to rule 45.12, the only costs which are to be allowed are –

(a) fixed recoverable costs calculated in accordance with rule 45.9;

(b) disbursements allowed in accordance with rule 45.10; and

(c) a success fee allowed in accordance with rule 45.11.

Amount of Fixed Recoverable Costs

45.9 –

(1) Subject to paragraphs (2) and (3), the amount of fixed recoverable costs is the total of –

(a) £800;

(b) 20% of the damages agreed up to £5,000; and

(c) 15% of the damages agreed between £5,000 and £10,000.

…"

6. It is common ground that the transport vehicle belonging to Door2Door was a "motor vehicle" within the meaning of CPR 47.7(4)(b) and that at the date of the accident, it was parked on a "road" within the meaning of sub-section (4)(c).

THE DETAILED ASSESSMENT PROCEEDINGS

7. General point 1 of the Points of Dispute says this:

"The paying party argues that the correct costs to be applied in this matter are costs pursuant to the predictable costs regime … The paying party refers the receiving party to the Civil Procedure Rules, particularly at CPR 45.7(4) … The paying party therefore calculates the profit costs pursuant to CPR 45.9 to be £1,800 with the appropriate VAT thereon. A success fee of 12.5% in the sum of £225 is calculated with the appropriate VAT thereon …"

8. It follows that the issue for decision is whether Mrs Schneider was involved in a road traffic accident, thereby triggering the provisions of CPR 45.7(4) (as Miss Jarratt contends) or whether, as Mr James submits, this was an accident that was not a road traffic accident within the meaning of this provision, in which case Mrs Schneider's claim for costs is not fettered or limited by the fixed costs regime.

MORE LAW

9. The only authority to which Miss Jarratt and Mr James have been able to refer me at Court of Appeal level is Dunthorne v Bentley & Hume (Administrators of the Estate of Diane Elizabeth Bentley) and Cornhill Insurance Plc [1996] P.I.Q.R. 323. (Both referred to various unreported County Court cases but they are not binding and save as set out below, I did not find them to be of assistance).
10. In Dunthorne, Mrs Bentley ran out of petrol when driving her car on the A107. She parked with her hazard lights flashing and stood at the rear of the vehicle. A colleague, passing on the other side of the road, stopped to assist. Mrs Bentley ran across the road, whereupon she was fatally injured when she was hit by Mr Dunthorne's car. He suffered a serious head injury. In subsequent proceedings, it was admitted that his injuries were caused by Mrs Bentley's negligence in running across the road. Whether or not Cornhill, as Mrs Bentley's insurers, were liable to meet Mr Dunthorne's damages, depended upon whether or not the accident was a road traffic accident and for that to be the case, Mrs Bentley must have been using her car.
11. The issue for the Court of Appeal was this (see judgment of Rose LJ at 324):

"The crucial question was 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 against her estate … 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? …"

12. At page 326, the learned Lord Justice continued:

"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 … 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 [Counsel for Cornhill] acceptance that a driver of a parked vehicle 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, it seems to me, be viewed in isolation … To exclude consideration of the pedestrian's purpose would be an unwarranted disregard of common sense and 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 ...

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

"(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 Section 145(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 of petrol and because she was seeking help to continue her journey."

13. It followed that the appeal by Cornhill was dismissed.

THE SUBMISSIONS FOR THE DEFENDANT

14. Miss Jarratt draws attention to the fact that it is common ground that the transport vehicle, a specially adapted minibus, was a "motor vehicle" which was stationary "on a road" when the accident in which Mrs Schneider was injured took place. She contends that this was a road traffic accident arising out of [emphasis added] the use of the minibus on Queen's Square outside the Hospital (see her skeleton argument paragraph 6 and her own emphasis therein). In this context, Miss Jarratt relies on Dunthorne and contends that the court must consider why the pedestrian in question was in the road. In the present case, she submits that the answer to that is that Mrs Schneider's purpose was to use the minibus to complete the return journey from the Hospital where she had been given treatment, to her home. That use occurred when Mrs Schneider stepped up to put her feet on the floor of the vehicle and held onto the contact points on the mini-bus to assist her in gaining access. In doing so, her injury arose out of her use of the vehicle and the fact that her journey had not actually started was irrelevant; the vehicle did not need to be in motion for a road traffic accident to occur; nor did there need to be a collision for there to be a road traffic accident. In short, "arising out of" was a very wide concept and where, as here, Mrs Schneider had injured herself as a direct result of boarding the bus, this was a personal injury arising out of the use of a motor vehicle for the purposes of CPR 45.7 (see her skeleton at paragraph 14). Accordingly, under the fixed costs regime, Mrs Schneider is precluded from recovering higher costs than those prescribed under the rule.

THE SUBMISSIONS FOR THE CLAIMANT

15. Mr James submits that the accident was not caused by, nor did it arise out of use of the minibus. (In respect of "caused by", I do not understand there to be any difference between the parties, since Miss Jarratt puts her case principally on the basis that the personal injuries arose out of, rather than were caused by, the use of the vehicle; however, this is not a point conceded by Door2Door)).
16. So far as Dunthorne is concerned, Mr James submits that the Court of Appeal carried out a very specific examination of the meaning of "use", to the extent that the Court held that a pedestrian walking away from a vehicle was still capable of using it. However, Dunthorne had been decided on different facts and with different policy decisions to those involved here; there was no principle of law involved (see judgment of Pill LJ at page 328) and the point for decision was whether the Judge below, Laws J, had been correct to reach the findings of fact that he had made. The Court of Appeal had held that he had.
17. Here the position was different. Mrs Schneider had not been using the minibus. All that she had done was to make an attempt to get into it, so as to put herself in a position where she could use the minibus. Nor was Door2Door (by its driver) using the minibus. He was merely assisting Mrs Schneider into the vehicle. No collision had taken place, whether between pedestrian and vehicle or between vehicle and vehicle. The minibus was not being driven and it was not in any way causal to the accident. On the contrary, it had merely been "part of the scenery" and In Mr James' submission, this combination of factors explained why the allegation of negligence had focussed on whether the minibus had been adequately maintained and whether the instructions that had been given by the driver were sufficient to enable Mrs Schneider to board safely. For these reasons, the documents sought during the case had included the risk assessment under the Management of Health and Safety at Work Regulations 1999 and the contract between the Hospital and the Defendant. In short, this had not been a case involving a road traffic accident which concerned motor insurers but one that had proceeded as public liability claim and had concerned insurers for public liability risks.
18. Mr James further relies on the approval by the Court of Appeal in Dunthorne of the judgment in The Australian High Court in Government Insurance Office of New South Wales v Green & Lloyd Ltd [1965] 114 CLR 437 when Winder J had said this 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 sensible consequence. It excludes cases of bodily injury in which the use of the vehicle is merely causal concomitant not considered to be, in a relevant causal sense, a contributing factor."

19. In the present case, Mr James submits that the use of the vehicle was simply a "causal concomitant". Accordingly, Mrs Schneider's costs cannot be restricted to the fixed costs regime.
20. Finally, Mr James draws attention to the fact that although in criminal cases, it has been held that a vehicle owner has use of a vehicle even though it cannot be driven (in Elliott v Grey (1960) 1 QB 367 the car in question had no battery), those cases concern the actual owner or driver (or possibly his employer- see for example Windle v Dunning and Son Ltd. (1968) 1 WLR 552). Here, Mrs Schneider was neither a vehicle owner nor a driver and in Mr James' submission, the definition of "use" in these cases derives from criminal statutes where different policy considerations are involved. Such technical or extended meanings should not, he contends, be adopted by this court.

DECISION

21. As I have said, the issue is whether the bodily injury suffered by Mrs Schneider occurred in a road traffic accident and arose out of her use of the mini-bus provided by the Health Authority to convey her home following her hospital appointment. Mr James advances a common sense argument that there could be no road traffic accident because the mini-bus was stationary and not in use, either by Mrs Schneider, who was simply trying to get into it so that she could use the vehicle, or by the driver, who was not at the wheel, but was outside, assisting her into the mini-bus. No collision had taken place, either between Mrs Schneider and the vehicle, or between the vehicle and another vehicle. In these circumstances, Mr James submits that the Court should not extend the meaning of an ordinary word like "use", the natural (dictionary) meaning of the word "use" being "the act or mode of using".
22. Mr James submits that the facts are no different to those before Deputy District Judge Cooper in Edge v Whiterose Environmental (Chester County Court) 24 November 2009 (unreported) in which an accident had taken place on 10 May 2006, when the claimant was injured whilst unloading "Sharpsmart Transporters" filled with waste from the box van which he had been driving. The District Judge had stated that the Court needed to be satisfied that a causal relationship existed between the use of the vehicle and the injury. On the facts, he held that the Court did not find the use of the vehicle to be a contributing factor to the injury suffered. Accordingly, the necessary causal relationship to bring the case within the definition of a road traffic accident was not present.
23. However, as Miss Jarratt points out, Edge is not binding, and for my part I have gained more benefit from Betty Green v Kis Coaches & Taxis Ltd (2008), another unreported case in the Plymouth County Court, in which the claimant had travelled in a coach to a church for a wedding. As she alighted onto a step which had been placed on the ground by the coach driver, Mrs Green had fallen backwards, landing on the bottom of the steps which had formed part of the coach. At paragraph 12 the learned Judge said this:

"Having regard to the dicta of Rose J in Dunthorne, I have come to the conclusion on the facts of the present case that the injury arose out of the use of the coach."

24. Mr James' riposte is that in ordinary language, an accident of the type in which Mrs Schneider was involved was not a road traffic accident (see his skeleton at paragraph 8). Whilst I accept in layman's terms that it might appear to defy logic were I to find on the facts of this case, that a road traffic accident could have taken place when, at the moment of injury, (1) Mrs Schneider was not the owner of the vehicle, (2) she was not inside the vehicle, (3) she was not the driver of the vehicle, (4) the vehicle was not in motion and (5) the vehicle was not in collision with Mrs Schneider or another vehicle, it is clear from Dunthorne that for a road traffic accident to occur, the tortfeasor's vehicle does not need to be moving, nor must it be involved in a collision. On the contrary, in Dunthorne the Court of Appeal held that a road traffic accident had occurred through Mrs Bentley's use of the car, even though at the moment of injury, it was stationary, undriveable and she was moving away from it. It follows that simply because the mini-bus had not commenced its journey, nor had it collided with another vehicle or pedestrian, that no road traffic accident could have taken place. As was the case in Betty Green, I consider that use of the minibus occurred when Mrs Schneider placed her foot on the floor and her hands on the holding contact points, one such point being a handle. From that moment, she was engaged in an act or mode of "using" the vehicle and contrary to Mr James' submission, in my judgment, what Mrs Schneider was not doing was simply putting herself into a position so that she could use it and that that use would not start until she was safely in her seat and the mini-bus had set off. Far from being a "causal concomitant", in my judgment, her injury arose out of her use of the contact points and vehicle floor which were causal to the injury Mrs Schneider suffered. For that reason, the submission attractively advanced by Mr James on behalf of Mrs Schneider must fail.
25. In reaching this conclusion, I would add for completeness that I agree with Mr James that the criminal cases are of limited relevance. They deal with owners or drivers of vehicles, which Mrs Schneider was not. Miss Jarratt's case succeeds for the reasons I have given in paragraph 24, so my agreement with Mr James about the criminal cases cannot affect the outcome of my decision.
26. In the result, I am satisfied that Mrs Schneider was involved in a road traffic accident which resulted in bodily injury that arose out of her use of Door2Door's minibus on a road. As the claim settled for £5,000, the costs fall within the fixed recoverable costs regime in CPR rule 45 and will be limited in the way contended for by Miss Jarratt.

NEXT STEPS

27. As I indicated when I reserved judgment, given that there is no case directly on this point, I consider that may be a real prospect of success on appeal should Mr James be instructed to take this matter further and for that reason, it is appropriate to give permission to appeal. I assume that the parties will wish any appeal to be disposed of before the detailed assessment is concluded. In these circumstances, the parties have liberty to restore the matter before me by letter as and when they are ready to complete the assessment.