Parked car requires MOT and insurance certificate.
Pumbien v Vines
(1995) The Times June 14 Queen's Bench Divisional Court
A motor car parked on a road was being used on the road for the purposes of sections 47 and 143 of the Road Traffic Act 1988 even if it was totally immobilised and could only be moved by being dragged away, and, therefore, required both a valid MOT certificate and an insurance policy.
The Court so held in dismissing an appeal by way of case stated by Andee Pumbien against his conviction of offences of using a motor vehicle on a road without either a valid test certificate or insurance policy contrary to sections 47(1) and 143(1) of the 1988 act.
THE FACTS
The facts are taken from the judgment of MR JUSTlCE MITCHELL.
In March 1992 Pumbien (the appellant) parked the vehicle on a road at a time when the vehicle was in working order. He cancelled the policy of insurance covering the use of the vehicle and in August 1992 the MOT test certificate expired Pumbien had not driven it since parking it there in March.
No insurance policy or MOT test certificate were in existence for November 10. The prosecution alleged that by reason of the presence of the vehicle on the road on that date Pumbien was using it for the purposes of the two provisions under which he was charged.
On November 13 the vehicle was collected by a vehicle dismantler to whom it had been sold on a date after November 10. The condition of the vehicle was found to have been as follows:
The tyres were deflated, the handbrake was on and the rear brakes were seized. The gearbox contained n oil because there was a leak in the transmission pipe.
It would not have been possible to move the vehicle without first freeing the brakes, replacing the transmission pipe and oiling the gearbox.
The justices found that that Pumbien had taken no positive action to immobilise the vehicle. It was clear that in that state the vehicle, although clearly repairable, could neither be driven nor towed unless it was literally dragged.
THE LAW
The court considered the authorities and concluded that the position appeared to be:
1 A motor vehicle which was mobile at least to the extent that its wheels would rotate had to be insured and there had to be an appropriate test certificate in force in respect of it before it could lawfully be parked on a road: see Elliott v Grey [1960] 1 QB 367 and Gosling v Howard [1975] RTR 429.
2 A motor vehicle which was immobile at least to the extent that its wheels would not rotate did not require a current test certificate before it could lawfully be parked on a road :see Hewer v Cutler (1974) RTR 155.
In The court's judgment, provided (i) that a vehicle was a "motor vehicle" within the definition in section 185 of the Act and (ii) that the vehicle was on a road, the owner of that vehicle had the use of it on a road whether at the material time it could move on its wheels or not.
The court found it impossible either in law or in common sense to justify the proposition that a motor vehicle which was in good condition but which had been immobilised to prevent its wheels from rotating did not attract the insurance requirements whereas the requirements did apply to a vehicle in poor condition and without certain important parts if the wheels could rotate.
Such a distinction was both artificial and unfair; all the more so if the insurance obligation could be avoided simply · by immobilising the vehicle to the extent that the wheels could not rotate. The one was neither more nor less of a hazard than the other when standing stationary on a road.
Hewer v Cutler. could be distinguished on the ground that the insurance provision was not there under consideration and Thomas v Hooper [1986] RTR 1on the basis that Lord Justice Glidewell had emphasised that it was a decision on its own facts.
In The court's judgment the two allegations should stand or fall together. That had been the approach of the court in Gosling v Howard. It was true that both in that case and in Elliott the vehicle had not been immobile but, more significantly, Lord Parker, who presided on each occasion, made it clear in Gosling that in the case of each provision the test of user was the same.
The definition of user in those statutory provisions obviously had to have some regard to the mischief which the prohibition was catering for. The provisions were catering not for different mischiefs but for different aspects of the same mischief. Their object and that of many other provisions was to protect the safety of property of other road users.
The court did not. therefore. accept that as between the two provisions the word "use" had a different meaning Nor did he accept that the distinction between mobility and immobility had any greater relevance to issue of "use" in section 47 than it did in section 143.
Further, if a particular user was such as to warrant insurance he failed to understand why the same use might not warrant the existence of a current MOT certificate.
Applying those principles to the facts of the case, the appeal had to be dismissed. Pumbien's vehicle was on the road. It was a motor vehicle as defined in the Act, notwithstanding that one aspect of its condition was reversible immobility. In such circumstances Pumbien was under the obligations imposed upon him by sections 47 and 143 of the Act.
Comment
By distinguishing both Hewer v Cutler and Thomas v Hooper and marrying the requirements of the two sections (47 and 143); which was the approach of the courts in Gosling v Howard the Divisional court have simplified the law on the "use" of a motor vehicle in this circumstances.
When Elliott v Grey was reported in the Criminal Law Review, see [1960] Crim.L.R. 63 the learned commentator referred to the mischief the statute was aimed at. he said, inter alia, "A motor vehicle standing on a road clearly comes within the mischief aimed at by the Act..... The decision therefore achieves a desirable result from a social point of view".
It is submitted that it also makes good law, inevitable when a car has no MOT it more often than not has no insurance, or vice versa. Proving one set of facts should aid prosecutions.