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How to beat the MIB's off-road vehicle defence - Alan Ball, Irwin Mitchell

26/07/19. This article will discuss a recent case (KMX v DPX and MIB [2018]) that myself and Carolyn Heaton, Partner at Irwin Mitchell, alongside our Counsel, Henry Witcomb QC, have successfully resolved against the Motor Insurers’ Bureau (MIB). After over three years of liability being in dispute in August 2018, less than two weeks before trial, the MIB admitted liability in full. This article will discuss the ‘off-road’ vehicle defence used by the MIB and how we overcame this defence.

We represented a young girl who was catastrophically injured when she was crossing a residential road with her father and brother. The Claimant crossed the road and had nearly reached the safety of the pavement when she was collided into by an off-road Yamaha YZ85 motorcycle, ridden by a local youth.

The motorcycle ridden by the First Defendant was uninsured. We therefore submitted a claim against the MIB in accordance with the MIB Uninsured Drivers Agreement 1999. Despite the availability of police and witness evidence no admission of liability, or confirmation that the MIB would deal with the claim, was received.

Court proceedings were served on the First Defendant and the MIB as Second Defendant. No defence was filed by the First Defendant. The MIB served its defence and denied liability on two grounds. The first was that the First Defendant was not negligent. Based on the police report, CCTV footage, witness evidence and accident reconstruction evidence obtained the First Defendant’s negligence was beyond question. This article will not cover the negligence of the First Defendant, but instead how we overcame the second ground of the MIB’s Defence.

The second argument adopted by the MIB was that the MIB did not have to satisfy judgment against the First Defendant due to the type of motorcycle ridden by the First Defendant. It was argued that it was an ‘off-road’ motorcycle and therefore not classed as a motor vehicle in accordance with section 185 of the Road Traffic Act 1988. Consequently it was asserted that its use by the First Defendant did not give rise to a ‘relevant liability’ as defined in clause one of the Uninsured Drivers Agreement 1999 (UDA). In accordance with the UDA the MIB would only be responsible if a judgment is obtained against a Defendant who was required by Part VI of the Road Traffic Act 1988 to be insured against liability (and that judgment remains unsatisfied).

Section 185 of the Road Traffic Act 1988 defines a motor vehicle as follows:

“motor vehicle” means , subject to section 20 of the Chronically Sick and Disabled Persons Act 1970 (which makes special provision about invalid carriages, within the meaning of that Act), a mechanically propelled vehicle intended or adapted for use on roads”

The words ‘intended or adapted for use on roads’ were significant in our case and were a key part of the MIB’s defence in arguing that the motorcycle ridden by the First Defendant was not classed as a motor vehicle. The MIB averred that because it was an ‘off-road’ motorcycle intended and manufactured for dirt track and competition use, it was not intended or adapted for road use. The MIB detailed that the motorcycle ridden by the First Defendant did not have a speedometer, number plate, or battery, and that the tyres were moulded with the wording ‘Not for highway use’, in addition to various other reasons to support its defence...

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