A little common sense sprinkled on Vnuk
CJEU qualifies Vnuk by ruling that only the transport uses of a dual use vehicle fall within the compulsory motor insurance requirements.
Much has been written about the decision of the CJEU in the Vnuk case (C-162/13). That decision has caused widespread concern not only in the UK, but also in various other EU Member States, principally around what has been perceived as an extension of the compulsory motor insurance requirements to private land and also as regards precisely what uses of the vehicle would fall within the requirements.
The CJEU held that the concept of “use” in Article 3 of the First Motor Insurance Directive (72/166/EEC) extended to any use of a vehicle which was consistent with the normal function of that vehicle.
What about a dual use vehicle, ie a vehicle which could be used as a means of transport but also has another specific mechanical function?
The issue of dual use vehicles has now been considered by the CJEU in the case of Rodrigues De Andrade v Salvador & Others (28 November 2017 C-514/16).
In that case, a woman (Mrs. Alves), employed as a part time agricultural worker, was applying herbicides to the vines in a vineyard when a tractor which was carrying the herbicide drum moved, crushing her. She died as a result. The exact circumstances were described by the court as follows, namely:
“The herbicide was inside a drum with a spraying device mounted on the back part of an agricultural tractor (‘the tractor in question’) and suspended therefrom. The tractor in question was stationary, on a flat track, but with the engine running to drive the spray pump for the herbicide. The weight of the tractor, the vibrations produced by the engine and by the spray pump and the movement, including by Mrs Alves, of the herbicide hose leading from the drum, together with the heavy rainfall that day, caused a landslip which carried the tractor away. The tractor in question fell down the terraces and overturned, reaching the four workers who were applying herbicide to the vines below. Mrs Alves was hit and crushed by the tractor in question, and died as a result.”
The question arose as to whether the motor insurer of the tractor was liable. This depended upon whether the circumstances fell within the compulsory insurance requirements of the 2009 Directive (2009 (103) EC). It clearly was a motor vehicle within the definition contained in Article 1 of the 2009 Directive.
The court confirmed the basic findings in Vnuk, making it clear that, just because a vehicle was stationary, whether its engine was running or not, was not determinative and it was certainly possible to fall within the concept of the use of vehicles which required compulsory insurance cover even when stationary.
In order to do so, however, it was necessary for the vehicle to be viewed as having been used as a means of transport at the time. The fact that a vehicle was stationary when an accident occurred did not preclude the use of that vehicle from falling within the scope of its function as a means of transport. Where, however, the vehicle was a dual use vehicle, ie it had a use other than as a means of transport, it had to be determined what the principal use was at the time which led to the accident. It would only be where the vehicle was being used principally as a means of transport that this would be covered by the concept of the use of vehicles within Article 3.
On the facts of the case, it was clear that the principal use of the tractor was not as a means of transport when the accident occurred. To quote the CJEU (para 41):
“In this instance, it is apparent from the information provided by the referring court that, at the time of the accident involving the tractor in question, that tractor was being used to generate the motive power required to drive the pump of the herbicide sprayer attached to it for the purpose of applying herbicide to the vines on a farm. Subject to verification, which is a matter for the referring court, it thus appears that such use is principally connected with the function of that tractor as a machine for carrying out work and not as a means of transport, and, therefore, is not covered by the concept of ‘use of vehicles’ within the meaning of Article 3(1) of the First Directive”.
This is a sensible decision which provides some parameters to the uncertain ambit of the Vnuk judgment. Dual use vehicles, whilst being used as a means for transport would require motor insurance but, where an accident results from the alternative function of the vehicle in question, this would not fall within the scope of the compulsory insurance requirements.
There was no definition provided as to what is meant by use “as a means of transport” but arguably this is self evident, namely to carry persons and/or goods from A to B on a journey. The Commission has previously suggested, prior to its current ongoing Refit consultation process regarding the operation of the 2009 Directive, that the Vnuk judgment might be limited to the use of vehicles in a traffic scenario which would essentially be in areas to which the public has access, particularly since one of the main aims of the Motor Insurance Directives has always been to ensure the free movement of persons between Member States and throughout the EU.
In the light of Rodrigues De Andrade, if a mobile burger van is stationary and an accident occurs during the preparation of food, the principal use of that van would not be viewed as a means of transport at the material time and, hence, would not fall within the scope of the 209 Directive. Similarly, if an incident occurs inside a stationary caravan which is being used to live in at the time, this again would not involve the principal use of the caravan as a means of transport.
There remain many unanswered questions arising from Vnuk but at least the dual use vehicle issue appears to have been sensibly constrained. There may still be specific circumstances where it will be necessary to determine whether the principal use of the vehicle at the time of an accident was as a means of transport or in order to carry out its alternative function.
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