The CJEU ruled that it did (although, formally, it left the
factual findings to the local court). On the specific question as to whether
the reversing trailer propelled by a tractor was covered by the duty to insure in
the Directive, it held that it was. The key ruling was this: motor vehicle
“use” covers “any use of a vehicle that is consistent with the normal function
of that vehicle”.
The CJEU did not expressly rule that the geographic scope
of the duty to insure extended to private property, such as the farm where Mr
Vnuk was injured. However, this appears plain from the breadth of its
definition of “use”. It is also clear from its conclusion where it stated that
its definition may cover “the manoeuvre of a tractor in the courtyard of a
Where does this leave the law in this jurisdiction? On its
face in breach of the Directive. Sections 143, 145 and 185 of the Road Traffic
Act 1988 restrict the duty to take out third party motor insurance and the scope
of cover to be provided by authorised motor insurers in the UK to the “use of a
motor vehicle on a road or other public place” and define “motor vehicle” as “a
mechanically propelled vehicle intended or adapted for use on roads”.
Hence it has hitherto been considered that those injured by
motor vehicles on private land (eg car parks or caravan sites) are excluded
from the compensatory guarantee. Similarly, a claimant injured on a public road
by a motor vehicle not intended or adapted for road use. Similar definitions
are used in Uninsured Drivers Agreement 1999 and the Untraced Drivers Agreement
It now appears this is too narrow. The obvious course for
the UK (which it likely to find itself in a similar position to a number of
other EU Member States) would be, having conducted a review, to legislate so as
to ensure the UK has correctly implemented the Directive.
Where does this leave litigants in this jurisdiction who
find themselves in an equivalent position to Mr Vnuk in the meantime? The
answer, it appears, is in the unenviable position of having to bring a claim
for Francovich damages. The alternative is to seek to persuade the
domestic court that the relevant UK legislation must be construed so as to be
compliant with the Directive. However, it does not appear likely that the plain
wording of the domestic legislation will be susceptible to this.