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Brown v Roberts 1965
Reported: [1965] 1 Q.B. 1; [1963] 3 W.L.R. 75, QBD
Year: 1965
Court: Queen's Bench Division

FACTS:-

This judgement involves claims against two different defendants both arising from the same traffic accident. The Claimant, a pedestrian, was struck and injured by a van door negligently opened by the passenger of the van. The owner and driver of the van, the Second Defendant, was insured against liability to third parties arising out of the use of the vehicle by himself or by any other persons driving it with his permission. He was not insured against the third party liability of passenger.

The Claimant brings a claim against the First Defendant for failing to take due and proper care for pedestrians on the pavement. In addition she brings a case against the Second Defendant on two grounds. Firstly, for failing to prevent the First Defendant from acting carelessly in opening the door and secondly for breach of statutory duty under section 35(1)(a) of the Road Traffic Act 1930 by failing to insure the vehicle against the third party liability of any person permitted to use the vehicle.

The case focussing on what amounts to “use of a vehicle” for the purposes of section 35 (1) of the Road Traffic Act 1930.

HELD:-

Justice Megan said that the claim against the First Defendant was relatively straightforward. The court was satisfied that the evidence presented by the plaintiff was sufficient to prove that the First Defendant opened the door without taking due and proper care for pedestrians on the pavement. As a result of that negligence the plaintiff was struck by the door, knocked down and sustained her injuries. There was no negligence on the part of the plaintiff.

The claim against the Second Defendant was more complex. The First ground, failing to prevent the First Defendant from acting carelessly in opening the door failed due to lack of evidence. There was no evidence showing that the Second Defendant knew, or should have known that his passenger was going to act this way. Even if he had known, he had no opportunity to stop his passenger flinging open the door as it happened instantaneously.

The Second ground raised more difficult questions, solely of law. The plaintiff argues that the “commercial vehicle insurance policy” did not give cover in respect of the legal liability of any passenger carried in the van, for bodily injury to any third party caused by the negligence of the passenger while mounting in or travelling in or getting out of the van so therefore the Second Defendant breached the statutory duty under section 35 (1).

Under section 35 (1) of the Road Traffic Act 1930;


“It shall not be lawful for any person to use, or to cause or permit any other person to use, a motor vehicle on a road unless there is in force in relation to the user of the vehicle by that person or that other person, as may be, such a policy of insurance or such a security in respect of third party risks”

Counsel for the plaintiff submitted that the First Defendant was at the time of the accident using the Second Defendant’s van with his permission. She was using it because she was a passenger in it, using it on the road as a means of transport.

He referred to the judgement of Lord Parker CJ Elliot v Grey [1959] 3 All ER, a case which the Divisional Court decided, in criminal proceedings, that the owner of a motor vehicle was “using” that motor vehicle on the road, although the motor vehicle in question had broken down and was left in the road outside the owner’s house. In his judgement at p 736; Lord Parker indicates that the word “use” is equivalent to “have the use of”, or, perhaps to “have the advantage of a vehicle as a means of transport”.

This suggests that there may be more than one person who is “using” at any given time, and the element of driving the vehicle is not an essential of “using”. He suggests there is no reason why “using” should be given any narrow, or artificial, meaning in s35 (1).

Counsel for the Second Defendant, on the other hand, submitted that the proposition was a startling one. It would mean, he said, that very many people, probably millions, since 1930 have been committing a criminal offence every time they have entered a “bus or a taxi-cab, unless it should turn out that there was in force an insurance policy covering the possible liability of passengers to third parties for negligence while the passengers as travelling in, or getting into or out of the “bus or taxi cab”. In addition he submitted that the meaning of use in section 35(1) must necessarily be narrower than the plaintiff contends and for the purposes of “use of a vehicle on the road” there must be at least an element on the part of the user, of controlling, managing or operating the vehicle, as a vehicle.

Justice Megan concluded that a person does not “use a motor vehicle on the road” for the purpose of section 35 (1) of the 1930 Act unless there was a sufficient element of controlling, managing or operating the vehicle. This did not extend to a person who was merely a passenger and who had, as a passenger, control of a door as he entered or alighted (see p 269, letter d, post). Accordingly no breach of statutory duty was established against the Second Defendant.

He went on to state that it is inconceivable that Parliament intended that one who was a passenger in, say, a public service vehicle should be regarded as “using that vehicle on a road”, so that he would be guilty of a criminal offence if the vehicle were not properly constructed.

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