Dunthorne v Bentley & Anor

For statutory motor insurance, arising out of vehicle use extends beyond direct or proximate causation but still requires a causal nexus. A person may be using a vehicle on a road while not driving it. Whether an injury arose out of that use must be assessed objectively, including the reason why a pedestrian was on the road. A judge may draw reasonable inferences from agreed facts. On the facts, crossing to obtain help after running out of petrol was sufficiently connected with the vehicle’s use. The decision was fact-sensitive and did not establish that every attempt to obtain assistance after a breakdown necessarily arises out of vehicle use.

The plaintiff was injured when his car struck Mrs Bentley, who had run across the road after her car had run out of petrol. Liability had been entered by default against the administrators of her estate. Her motor insurers were subsequently joined, and the action was stayed for determination of a preliminary issue.

Laws J held that the plaintiff’s injuries arose out of Mrs Bentley’s use of the car, so that the insurers were liable under the policy and the Road Traffic Act 1988. The insurers appealed. The central questions were whether Mrs Bentley was using the vehicle when she crossed the road and whether the accident was caused by or arose out of that use.

Disposition. The appeal was dismissed unanimously with costs. Leave to appeal was refused.

1. Use of the vehicle. Rose LJ held that a person uses a vehicle on a road if he or she has its use on the road, even though not driving it at the relevant moment. This was established by Elliot v Grey [1960] 1 QB 367. The intention of the vehicle owner is irrelevant to whether the vehicle is being used, as shown by Elliot v Grey and Eden v Mitchell [1975] RTR 425.
2. Causal connection. Under section 145(3)(a) of the Road Traffic Act 1988, arising out of is wider than caused by. It requires a less proximate relationship, but still a causal relationship or sense of consequence. Rose LJ adopted the significant assistance provided by Government Insurance Office of New South Wales v Green and Lloyd Limited [1965] 114 CLR 437. The New Zealand authorities concerned materially different statutory wording. The Australian and Canadian authorities were examples showing that the issue depends on the facts of the particular case.
3. Objective assessment. The reason why a pedestrian was in the road may be relevant to whether the accident arose out of vehicle use. The act of crossing cannot be viewed in isolation. The court must assess objectively all the circumstances, including the purpose of the crossing and the surrounding circumstances.
4. Inferences from agreed facts. The judge was entitled, and expected, to draw inferences from the agreed facts. The obvious inference was that Mrs Bentley was seeking assistance with refuelling so that she could resume her journey.
5. Application. Her negligent crossing caused the injuries and was closely and causally connected with use of the car. She would not have been crossing but for the car having run out of petrol, and she was seeking help to continue the journey. The insurers therefore had to satisfy the judgment under section 151 of the Road Traffic Act 1988.
6. Qualification. Pill LJ agreed, but emphasised that the case was close to the line and established no general rule that any person seeking assistance because a vehicle had broken down was necessarily acting in a way arising out of vehicle use. Hutchison LJ agreed with Rose LJ’s reasons and Pill LJ’s caution.

• Court of Appeal (Civil Division): On 26 February 1996, dismissed Cornhill Insurance plc’s appeal with costs and refused leave to appeal.
• High Court: Laws J, on 9 September 1994, held on a preliminary issue that the plaintiff’s injuries arose out of Mrs Bentley’s use of her car and that liability attached to the insurers.