Section 145 of the Road Traffic Act 1988 requires that drivers of all vehicles ‘on a road or other public place’ must have compulsory motor insurance to cover death or personal injury ‘arising out of the use of the vehicle’. In the recent case of Wastell v Estate of John Wooodward (deceased) & Others, the court was required to determine whether a burger van being used in a public layby was in fact being used on a road or other public place and whether the collision which resulted in injury to the claimant arose out of that use.

The defendant operated a snack van which was parked in a public layby for trading. He was setting up for business and placing a roadside board when he stepped into the path of the claimant who was travelling along the main road on his motorbike. There was a collision resulting in the death of the defendant and serious injury to the claimant.

The claimant pursued the defendant – who did not have motor insurance himself – through a claim on his partner’s motor policy on which he was a named driver. The defendant’s insurer argued that the stationary van was not being used on a road or public place and that even if it was, the accident did not arise out of the use of the vehicle but the defendant’s actions as a pedestrian.

The court considered previous case law on the issue of what was covered by the term ‘arising out of the use of the vehicle’ and concluded that it was not required that the motor vehicle was actually being used as a motor vehicle at the time the injury was caused for the injury to be covered by the statutory requirements of insurance cover. The correct test was the use of the vehicle at the time and whether the injury arose out of that use.

Applying the test to the facts of the Wastell case, the court ruled that the vehicle in question was a burger van and it was being used for this purpose at the time of the accident. The defendant’s actions in setting up the board at the roadside were part of the use of the vehicle as a burger van. On that basis, it held that the accident and injury did arise out of the use of the vehicle in a road or public place and so the insurer was liable for the claimant’s injuries as they came within the requirement of compulsory motor insurance cover.

Philippa Luscombe, a partner in the personal injury team at Penningtons Manches LLP, comments: “This case is an interesting one in terms of defining the scope of compulsory motor insurance cover. At face value, one might have expected the claimant to have difficulties in recovering damages. The defendant did not have his own insurance and while he was covered under a motor insurance policy, he was not even in a motor vehicle when the accident occurred. However, the court made clear that the issue is whether a motor vehicle was in use at the time of the accident and whether that use was linked to the accident and injury.

“Ultimately the claimant here was an innocent party who suffered serious injury and so the careful application of the law was extremely important to him. While the ruling demonstrates the importance of looking very carefully at any accident occurring on a road or public place to establish whether it could be said to be linked to the use of a motor vehicle, it is likely that each case will be very fact specific and that the courts will consider closely the relative actions of the claimant and defendant.”