Lewington v The Motor Insurance Bureau

For the purposes of compulsory motor insurance, the question is whether a reasonable person looking at the vehicle would regard road use as one of its general uses. A subsidiary or foreseeable road use may suffice. The use need not be lawful, and the vehicle’s principal use may be off-road. The statutory test must be interpreted purposively and, where applicable, consistently with the wording and purpose of the relevant European directive. The qualification for isolated, emergency or extraordinary use is narrow. On the facts, an articulated dumper truck was a motor vehicle within section 185 of the Road Traffic Act 1988, despite its principal off-road use and possible unlawfulness on roads.

Charli Lewington was seriously injured after swerving to avoid an unlit Bell B30D articulated dumper truck, stolen from a quarry and driven on a public road by an unidentified criminal. She sought compensation from the Motor Insurance Bureau under the Untraced Drivers’ Agreement 2003.

The arbitrator held that the dumper truck was not a motor vehicle within section 185(1)(c) of the Road Traffic Act 1988 and was not required to be insured. The claimant appealed on questions of law under section 69 of the Arbitration Act 1996. The central issues were the proper interpretation of “intended or adapted for use on roads”, the effect of the relevant directive, and whether lawful road use was required.

1. Appeal allowed and award set aside. The arbitrator made errors of law in treating section 185 of the Road Traffic Act 1988 as irreconcilable with the relevant directive, applying the wrong test, failing to give effect to the statutory and directive purposes, and treating lawful road use as necessary.
2. The governing common-law test, derived from Burns v Currell [1963] 2 All ER 297, asks whether a reasonable person looking at the vehicle would say that one of its uses would be road use, or whether some general use on roads is contemplated. The test is concerned with the vehicle’s general or foreseeable uses, not the particular use made by the defendant.
3. The qualification for isolated use, emergency use, or use by a person losing his senses is a narrow gloss on the statutory words. It does not require the court to disregard a foreseeable subsidiary road use merely because road use is not the vehicle’s principal function.
4. Applying the purposive approach required by Marleasing (case C-106/89), the court could construe section 185 consistently with the directive without substituting “land” for “roads”. The relevant common purpose was protection of the public through compulsory insurance and compensation for injury caused by road use.
5. Lawful road use was not a condition of being a motor vehicle. The fact that similar vehicles had been registered for road use, were hired with insurance, and could foreseeably be driven on public roads supported the conclusion that the dumper truck was within section 185.
6. Remission was unnecessary because the arbitrator had made comprehensive factual findings and those findings permitted only one legal conclusion: the dumper truck was a motor vehicle within section 185 and its use on the road required insurance. The award was set aside in whole under section 69(7)(d) of the Arbitration Act 1996, and a declaration was made that the Motor Insurance Bureau was liable to the claimant.

• Arbitration: Richard Methuen QC’s award dated 26 September 2016 held that the dumper truck was not a motor vehicle within section 185(1)(c) of the Road Traffic Act 1988 and was not required to be insured.
• High Court (Commercial Court): The appeal on questions of law was allowed. The award was set aside in whole under section 69(7)(d) of the Arbitration Act 1996.