It was always going to be the way that when my colleague Terry Renouf in his blog of 19 February ‘Unlucky 13 – Damijan Vnuk’, asked how significant an influencer would the Slovenian farmhand be in the coming year, that on that same day, Mr Vnuk could be seen ‘influencing’ a High Court judgment.
Following the judgment in Vnuk there has been much commentary on the wide interpretation of ‘type of vehicle’ and the broader ‘geographic’ (off-road/private land) scope of compulsory motor insurance.
However it was interesting to see the ‘ Vnuk influence’ with regard to the concept of ‘use’ of a vehicle by Judge Waksman QC, in his judgment in UK Insurance Ltd v (1) Thomas Holden (2) R & S Pilling (T/A Phoenix Engineering) (2016)
In the UK Insurance case the defendant mechanic had been welding a vehicle in a workshop when a fire broke out, and the central question was whether this was ‘use’ of a vehicle. Judge Waksman QC, in reaching his decision, not only set out a detailed analysis of past authorities on the ‘use ‘ of a vehicle but also helpfully provided some useful commentary on the binding effect of Vnuk.
The judgment in Vnuk highlighted that one of the key objectives of the European Motor Insurance Directives (MID) was to ensure the protection of injured parties to an accident caused by a vehicle in the course of its use, if that use is consistent with the ‘normal function of a vehicle’.
The question arising though is what is meant by this Vnuk definition of ‘use’ of a vehicle. To date in the UK the ‘use’ of a vehicle has been interpreted widely, with the most extreme example being in the case of Dunthorne v Bentley. There the driver of a vehicle, who caused an accident whilst she was crossing the road from her broken down vehicle, was found to be using a vehicle. Judge Waksman though concluded that welding a vehicle, and repair generally, “unless some important part of the vehicle is moving”, is not “use” for the purposes of compulsory vehicle insurance. In so deciding he accepted that the “Vnuk” concept of “use” (i.e. “being used for intended function”) can be directly read into the Road Traffic Act 1988.
The judge distinguished between using the vehicle, and repair to make the vehicle roadworthy so that it could be used, and further found that it was the repair equipment being used, not the car. Just because the car had been driven or moved before or during the repair was not enough to make a finding of a causal link between the fire and the ‘use’ of a vehicle.
Although not a defining issue in the case, there was also a discussion around whether this was use of a vehicle on private land and therefore whether the case fell outside the remit of the RTA 1988 and compulsory motor insurance. Here that the RTA did not cover private land and to that effect the RTA was incompatible with the Motor Insurance Directive as interpreted by the European Court of Justice in Vnuk.
Whilst the UK Insurance judgment sensibly draws a restrictive interpretation to the Vnuk definition of use ‘consistent with the function of a vehicle’, it also serves as a salutary warning of the binding effect of the Vnuk decision and that UK law remains incompatible as it stands with EU law.
Undoubtedly Mr Vnuk will, for the foreseeable future, continue to influence and fuel the debate around the requirement and scope for compulsory motor insurance.