Keoghs for claimant, DAC Beachcroft for defendant

The defendant, a garage mechanic, obtained permission from his employer to use the loading bay at his work premises to carry out some repairs to his own car. Due to his negligence when carrying out the repairs, a fire started at the premises and spread to adjoining premises. The employer's insurer paid out and then sought to bring a subrogated claim against the defendant. The only insurance policy which might potentially cover that claim would be the defendant's ordinary car insurance. The insurer of that policy sought a declaration of non-liability.

Section 145(3) of the Road Traffic Act 1988 provides that a motor insurance policy must cover liability caused by the "use" of the vehicle "on a road or other public place".  Waksman QC HHJ held as follows:

(1) The policy was worded too narrowly when it referred to having "an accident in your vehicle" and should, in light of section 145(3), be read as covering legal responsibility if there is an accident caused by, or arising from, the use of the vehicle.

(2) The policy itself did not limit cover to roads and there was nothing "commercially odd" about the policy giving cover which more generous than section 145(3). Accordingly, the policy covered the location of the accident.

(3) In light of that conclusion, it was unnecessary for the judge to consider the effect of the ECJ decision of Vnuk (see Weekly Update 34/14). Nevertheless, he concluded that "it must be implicit in this decision that, in an appropriate case, cover can extend further than where the accident happens on a road" and so section 145(3) is incompatible with the relevant EU motor directive, as interpreted by the ECJ in Vnuk.

(4) Vnuk was also held to be authority for the finding that "use" suggests some activity performed by the vehicle as a vehicle: "Thus, carrying passengers or goods, transporting the driver to some destination, positioning a trailer or caravan, or parking, by way of some examples. On the other hand, sleeping in an ordinary saloon car would not in my judgment constitute such use because the normal function of a saloon car does not include providing accommodation".

Undertaking a repair to a vehicle is not a "use" of it: "The thing being used is the repair equipment". Furthermore, it is not a "normal function" of a car to undergo repair (although driving to test a repair would be a different matter).

The judge also noted that the courts of other jurisdictions have adopted different approaches to this question.

(5) Nor could it be said that the fire was caused by the use of the car. This case differed from that of Dunthorne v Bentley [1999], where an accident arose when a driver, who had run out of petrol, ran across the road, having seen a colleague (and where the accident was said to have been caused by her driving, and then parking up, of the car).

Accordingly, there was no cover under the defendant's policy.