Sharon Griffin (A Protected Party) v Wisbech Phab Club (Norwich CC)
We appealed DJ Hayes’ decision to award the claimant’s costs on the standard basis, on the grounds that the accident was in fact an RTA within the definition provided under CPR r. 45.7(4)(a) and so PCR apply.
HHJ Darroch allowed the appeal, holding that the accident arose out of the use of a vehicle because at the relevant time the claimant was on the platform that was attached to the back of the vehicle. It followed that the accident was a road traffic accident on which PCR applied, and he therefore ordered the costs of the claim to be paid by the defendant in accordance with CPR 45 (II).
This was an appeal arising from a summary assessment of costs following an approval hearing in relation to a damages claim brought by the claimant, a patient.
The claimant suffered an injury as a result of an accident when she was elevated, in her wheelchair, onto a platform lift that was attached to the back of a vehicle in which she was about to travel. It transpired that the operator of the vehicle failed to secure the brake on the wheelchair or to fasten the claimant’s seatbelt. The claimant toppled over and suffered an injury.
At the approval hearing the claimant sought costs on the standard basis on the grounds that the accident was not road traffic accident, and therefore PCR does not apply. The defendant however argued that the accident in question was indeed a road traffic accident within the definition provided under CPR r. 45.7(4)(a).
DJ Hayes accepted that the said accident was an RTA as provided for under CPR 45.7(4)(a) but he did not accept the claimant’s argument that this was the intention behind CPR Part 45. He said: “I do not think that the facts of this accident have ever been intended to come within the phrase “use of a motor vehicle”. He concluded that this was a claim in negligence regarding the operation of a wheelchair, and accordingly he held that PCR do not apply, and he went on to summarily assess the claimant’s costs.
We were granted permission to appeal DJ Hayes’ decision, and the appeal hearing was heard before HHJ Darroch.
The respondent (claimant) argued that there must be a connection between the negligent act and the use of the vehicle for the accident to be road traffic accident as per 4. 45.7(4)(a). The applicant (defendant) disputed that and relied upon the decision in Dunthorne v Bentley [1996] PIQR 323.
HHJ Darroch said: “I make no criticism of the decision in Dunthorne but I feel that it stretches the definition of caused by or arising out of the use of the vehicle as far as it is possible to go. It can not be extended further……The Authorities suggest that “Arising out of” has a wider meaning than caused by. The District Judge is not entitled to say that the case was within the rule but that the rule was not intended to apply to the case. The wording is quite clear.”
He went on to say: “The lift was part of the vehicle and the accident arose out of the use of the vehicle….I remind myself that it is possible to escape the recoverable costs rule in exceptional circumstances but no such application has been made in this case, the wording and the interpretation should follow the compulsory insurance provision in the Road Traffic Act. As far as this may give rights to results which may be seen as unfair the remedy is within the exceptional circumstances provision. In the circumstances I am forced to allow this appeal.”
HHJ Darroch allowed the appeal, holding that the accident arose out of the use of a vehicle because at the relevant time the claimant was on the platform that was attached to the back of the vehicle. He ordered the costs of the claim to be paid by the defendant to the claimant, assessed by a DJ in accordance with CPR 45 (II). He awarded us the costs of the appeal summarily assessed at almost £5000.
