In costs law you can be sure of only one thing: If something looks like a duck, swims like a duck and quacks like a duck, it’s probably not a duck.
Following on from my recent post as to When is an RTA not an RTA?, the decision of Costs Judge Master Campbell in Schneider v Door2door PTS Ltd  EWHC 90210 (Costs) is worth reviewing. The issue being:
“did the Claimant, Mrs Schneider, suffer injury in a road traffic accident, in which case her costs are limited to those fixed under the recoverable costs regime in CPR rule 45 Part II; or are they ‘at large’ because the accident was an accident, but not a road traffic accident and accordingly her costs are recoverable without limit, subject to being proportionate and reasonable?”
The facts were that the claimant was offered transport by an NHS Trust after a hospital appointment. Following the appointment the claimant was waiting with another patient. Transport was provided by the defendant. The claimant was informed by the defendant that the steps at the side of the transport vehicle were not working. They were supposed to unfold so that the patients could use them to gain access to the vehicle. Instead, the defendant offered the claimant a steep ramp which was for wheelchairs or passage through the central part of the vehicle. She chose the latter. She was holding on to two contact points (one of which was a handle). She placed her foot high up and this was on the floor of the vehicle. As she transferred weight onto the right foot, she felt her hip dislocate.
The subsequent claim for damages against the defendant for negligence succeeded with a costs order in the claimant’s favour.
The claimant’s bill of costs sought a total of £22,982.91 including VAT and disbursements, whereas it was the defendant’s case that the costs should be limited to those payable under the fixed costs RTA regime in CPR 45 Section 2, so that no more than £800, plus 20% of the damages calculated at £1,000 and a success fee of 12.5% plus VAT together with a reasonable sum for the disbursements listed in CPR.45.10 (2), would be payable.
The rules state, so far as relevant:
“In this Section –
(a) ‘road traffic accident’ means an accident resulting in bodily injury to any person or damage to property caused by, or arising out of, the use of a motor vehicle on a road or other public place in England and Wales;
(b) ‘motor vehicle’ means a mechanically propelled vehicle intended for use on roads; and
(c) ‘road’ means any highway and any other road to which the public has access and includes bridges over which a road passes.”
It was common ground that the transport vehicle belonging to the defendant was a “motor vehicle” within the meaning of CPR 47.7(4)(b) and that at the date of the accident, it was parked on a “road” within the meaning of sub-section (4)(c).
Following the Court of Appeal’s reasoning in Dunthorne v Bentley & Hume (Administrators of the Estate of Diane Elizabeth Bentley) and Cornhill Insurance Plc  P.I.Q.R. 323, the Master concluded:
“Whilst I accept in layman’s terms that it might appear to defy logic were I to find on the facts of this case, that a road traffic accident could have taken place when, at the moment of injury, (1) Mrs Schneider was not the owner of the vehicle, (2) she was not inside the vehicle, (3) she was not the driver of the vehicle, (4) the vehicle was not in motion and (5) the vehicle was not in collision with Mrs Schneider or another vehicle, it is clear from Dunthorne that for a road traffic accident to occur, the tortfeasor’s vehicle does not need to be moving, nor must it be involved in a collision. On the contrary, in Dunthorne the Court of Appeal held that a road traffic accident had occurred through Mrs Bentley’s use of the car, even though at the moment of injury, it was stationary, undriveable and she was moving away from it. It follows that simply because the mini-bus had not commenced its journey, nor had it collided with another vehicle or pedestrian, that no road traffic accident could have taken place*. As was the case in Betty Green, I consider that use of the minibus occurred when Mrs Schneider placed her foot on the floor and her hands on the holding contact points, one such point being a handle. From that moment, she was engaged in an act or mode of “using” the vehicle and contrary to Mr James’ submission, in my judgment, what Mrs Schneider was not doing was simply putting herself into a position so that she could use it and that that use would not start until she was safely in her seat and the mini-bus had set off. Far from being a “causal concomitant”, in my judgment, her injury arose out of her use of the contact points and vehicle floor which were causal to the injury Mrs Schneider suffered.”
[*I think this should read: “It does not follow that…”]
The claim was therefore deemed to be an RTA under the rules. As the claim settled for £5,000, the costs fell within the fixed recoverable costs regime in CPR rule 45 and were limited accordingly.