Bizarrely, in a recent case that we dealt with, the answer seems to be that if the accident occurs after the Claimant has refuelled with petrol, what is clearly a slipping accident can be treated in law as an accident that arises out of the use of a motor vehicle.
The facts of the case are that the Claimant had stopped at a supermarket garage to refuel. Having refuelled she headed across the petrol station forecourt towards the entrance of the petrol station to pay. As she did so she slipped on an unknown substance causing her injury.
A letter of claim was sent to the defendant supermarket alleging that they had breached their common law and statutory duty to ensure that the Claimant as a visitor was reasonably safe in visiting the premises under the Occupiers Liability Act 1957. The Defendant responded by denying liability on the basis that all reasonable systems of maintenance, cleaning and staff training were in place. Liability was later agreed and the claim was settled by way of part 36 with costs to be paid on the standard basis to be assessed if not agreed.
However, following service of the Claimant’s cost schedule the Defendant argued that predictive fixed costs should be applied as the case fell within the definition of a road traffic accident under the old CPR part 45.9. The Defendant relied upon the decision in Dunthorne v Bentley [1996] RTR 428.
In Dunthorne the Defendant had ran out of petrol on the side of a road. She got out of her car and as she ran across the road to get help she was hit by a car driven by the Claimant. The Defendant died from her injuries and the Claimant driver suffered serious head injuries. It was admitted that the Claimant’s injuries were caused by the Defendant running across the road. The Defendant made a claim against the administrators of the Defendant’s estate and the Defendant’s motor insurers. Notably, the case came before the court for hearing of the preliminary point as to whether the Defendant driver’s estate had indemnity with the Second Defendant, the motor insurance company. It was found that the accident had ‘arisen out of the use of a motor vehicle’ by the Defendant as she had ran out of petrol and crossed the road to obtain help. It was held that the Defendant’s act in running across the road was a negligent act which caused the Claimant’s injuries, that was closely and causally connected with the use of her car and therefore the Claimant’s injuries rose out of the use of Mrs Bentley’s use of the car. It therefore fell within the definition of an RTA and the Defendant’s estate did have indemnity under the motor insurer.
The Lord Justices in Dunthorne stated that no principles were being set down by the decision so perhaps they would be surprised to see the authority used by Defendant insurers as a means of securing a costs windfall.
In our case, a detailed assessment of the Claimant’s costs, the District Judge did not feel the facts could be distinguished from the facts of Dunthorne. The District Judge placed reliance on the refuelling of the Claimant’s vehicle as being reason for being on the Defendant’s premises. This is despite the fact that had the Defendant had breached their duty by failing to keep the premises safe from hazard thereby causing the accident. In our view the cause of the accident was the spillage on the forecourt and not the refuelling of the vehicle.
Does this mean that had the Claimant been visiting the garage to buy milk and had slipped it would have been an RTA? No, the District Judge recognised that if the Claimant had been wandering along and needed cigarettes or a newspaper this would not have related to the use of a motor vehicle. The District Judge’s reasoning in our case suggest that where the main purpose for going to the supermarket petrol station was shopping but that whilst they were there they topped up on petrol, that it would not be caught by Dunthorne. Whereas if the main purpose of visiting the premises were running out of fuel, then when even if walking along a pavement towards the petrol station an injury is suffered by tripping on a defect, this would this fall within the definition?
We were granted permission to appeal the decision as the District Judge recognised that it would be helpful to have further guidance as the case raised a difficult point of law. Interestingly, although a Notice of Appeal was prepared it was not lodged as the parties later reached settlement (a commercial compromise) which reflects that this is a perplexing point of law that can give bizarre outcomes.