There’s an old saying, if it looks like a duck, walks like a duck…it’s a duck. It may therefore seem hard to comprehend that a recovery vehicle, that is to you and us a recovery vehicle, may not always be a recovery vehicle in the eyes of the law. It all rather depends on the status of the vehicle being recovered.
Now for a bit of law.
“’Recovery vehicle’ means a vehicle which is constructed or permanently adapted primarily for any one or more of the purposes of lifting, towing and transporting a disabled vehicle.”
A vehicle is not a recovery vehicle if at any time it is used for a purpose other than—
(a) the recovery of a disabled vehicle,
(b) the removal of a disabled vehicle from the place where it became disabled to premises at which it is to be repaired or scrapped,
(c) the removal of a disabled vehicle from premises to which it was taken for repair to other premises at which it is to be repaired or scrapped,
(d) carrying fuel and other liquids required for its propulsion and tools and other articles required for the operation of, or in connection with, apparatus designed to lift, tow or transport a disabled vehicle, and
(e) any purpose prescribed for the purposes of this sub-paragraph by regulations made by the Secretary of State
So what is a ‘disabled vehicle’? It is not something defined in statute. Often important terms are not defined and this can be extremely frustrating.VOSA’s view is that the term disabled vehicle should be given its ordinary meaning: i.e. ‘rendered incapable of action or use’. We can’t say we disagree with the compelling logic of this absent a statutory definition.
A leading authority on the issue is a 1983 High Court decision, Squires v Mitchell. The High Court decided that a ‘disabled vehicle’ was not only a vehicle which suffered from a significant disability but also a vehicle which had broken down, and had broken down because of that disability.
The High Court has also held that a vehicle which suffers from a minor disability is not a disabled vehicle. Somebody had the bright idea removing the rotor arm to disable it. The High Court unimpressed by this stroke of genius decided that “[the cars] were quite obviously not disabled vehicles. Disabled vehicles are vehicles which suffer some disability other than simply having the rotor arm removed’.
The answer to the question is essentially what we lawyers like to term a question of fact and degree. So whether a vehicle’s disability is sufficiently ‘significant’ to pass the threshold set in Squires v Mitchell for it to be classed as a ‘Disabled Vehicle’ depends on all the circumstances of the case. This is why lawyers are kept busy. The Courts will have to decide this question on a case by case basis which will, of course, lead to uncertainty and the need for lawyers.
VOSA has expressed some views on the position. The following situations do not, in VOSA’s view, constitute recovery:-
Picking up cars or MOT failures from car auctions;
Picking up cars from Scrap yards;
Removing abandoned wheel clamped/abandoned vehicles from a road, unless that removal is under the instruction of the police or local authority.
VOSA appears to limit the scope of ‘disabled vehicle’ with a roadside breakdown but we are not saying that is a proper interpretation.
VOSA advise that their list is not exhaustive but should be considered as a good indication of what activities may or may not require an Operator’s Licence when in the recovery game. We think VOSA’s advice is open to question and as such it is not really a good indication of anything.
So what is to be deduced from all this? It seems that a vehicle that is unable to proceed under its own steam is clearly a disabled vehicle as such disability is likely to be significant. So a serious mechanical breakdown such as engine failure or gearbox failure will qualify. Would running out of fuel amount to a significant disability?
It seems that disabling a vehicle deliberately as a work around i.e. deliberate removal of a rotor arm or other necessary component will not constitute a significantly disabled vehicle. However any significant disability not involving deliberate sabotage by the recovery vehicle operator/driver must potentially fall within the scope of the exemption.
If you are affected by the issues raised in this article remember that this article is not to be treated as advice either general or specific. Each case will turn on its own facts and two similar sets of circumstances could quite easily have different outcomes. The law sometimes really does seem to work in mysterious ways.
Operators should be aware that the Government is considering removing the exemption for recovery vehicles from Operator Licences. A consultation on this law change opened at the end of 2014. If a decision is made to change the law then presumably there will be a lead in period before a licence is required but operators should be alive to this potential law change and should seek advice at an early stage.