(1998) The Times, October 23 HOUSE OF LORDS

Clarke v Kato and Others Cutter v Eagle Star Insurance Co Ltd

The Facts

In the General Accident proceedings, the plaintiff had sustained injuries when she was struck by a car driven by an uninsured driver in an open car park.

The plaintiff brought an action for damages in the county court against the driver, who was uninsured, and the Motor Insurers' Bureau as being liable to satisfy any judgment obtained against the driver if his liability was one which he had been required by section 145(3)(a) to insure against, which included injury to any person "caused by, or arising out of, the use of [a] vehicle on a road in Great Britain".

The Trial

On a trial of a preliminary issue as to whether the car park was a "road" the judge had held that the car park, if considered together with an adjoining passageway, formed a line of communication allowing pedestrians and cyclists to reach shops nearby and concluded that the incident had occurred on a road. On appeal by General Accident, who had been substituted for the bureau, the Court of Appeal upheld the judge's decision.

In the Eagle Star proceedings, the plaintiff had been injured when sitting in the passenger seat of a car, parked in a parking bay of a multi-story car park, as a result of a cigarette igniting inflammable gas which had leaked from a can of lighter fuel left in the car by the driver.

The plaintiff obtained a judgment in the county court for damages for negligence against the driver but, although the driver had been insured, he had forfeited his right to indemnity under the policy by

failing to report the accident to his insurers and to send them the summons.

The plaintiff had thereupon commenced proceedings for the recovery of the judgment sum from the insurers as being liable under section 151 of the 1988 Act to satisfy any judgment against an assured where the assured's liability arose out of a matter required to be covered by section 145(3)(a).

The judge had held that the car park was not a road and dismissed the claim, but the Court of Appeal had held that the way marked out for the passage of vehicles in the car park was a roadway, that the adjoining parking bays were an integral part of that roadway, and that accordingly the injury sustained by the plaintiff arose from the use of a motor vehicle on a road and fell within section 145(3)(a).

House of Lords Decision

Road Defined

LORD CLYDE said that the word "road" was defined in section 192 of the 1988 Act. For England and Wales it meant "any highway and any other road to which the public has access".

Was it a Road?

The first question to be asked was whether the place in issue was a highway. That possibility did not arise in the present appeals and it was sufficient to observe that a highway included public footpaths and bridleways.

One then had to proceed to ask whether the place qualified as being "any other road to which the public has access".

NO Comprehensive Definition

His Lordship would hesitate to formulate a comprehensive definition whereby a place might be identified as a road, but some guidance might be found by considering its physical character and the function which it existed to serve. Whether a particular area of land was or was not a road eventually came to be a matter of fact.

As a matter of ordinary language, a car park did not qualify as a road. In character and more especially in function the two were distinct.

The proper function of a road was to enable movement along it to a destination. Incidentally a vehicle on it might be stationary. One could use a road for parking.

The proper function of a car park was to enable vehicles to stand and wait. A car might be driven across it but that was only incidental to the principle function of parking.

A hard shoulder might be seen to form part of a road. A more delicate question might arise with regard to a lay-by, but where it was designed to serve only as a temporary stopping place incidental to the function of the road it might be correct to treat it as part of the road.

While circumstances might occur where an area of land which could be reasonably described as a car park could qualify as a road for the purposes of the legislation, such circumstances would be somewhat exceptional.

The possibility had been canvassed in each of the two present cases whether there might not be a road within the respective car park. It might be acceptable in some cases to distinguish the carriageway and the car parking areas within the car park.

But once that analysis was adopted it was not then permissible to claim that the car parking areas were an integral part of the carriageway and so establish the whole as a road.

The distinction between a road and a car park which was reflected in the ordinary use of words was reinforced by a consideration of the language of the legislation.

Section 25 of the 1988 Act started with the words: "If, while a motor vehicle is on a road or a parking place. . ." The distinction recognised by Parliament between a road and a parking place could also be found in Part IV of the Road Traffic Regulation Act 1984.

Sections 1 to 3 of the 1988 Act, which prescribed certain serious driving offences, were expressly made to apply not simply to "a road" but to "a road or other public place".

It had been argued that a greater breadth of meaning should be allowed by way of a purposive construction. If that approach was to be adopted, the first step had to be to identify the purpose of the legislation.

Was the danger from which the public were to be protected the use of vehicles on roads or, more widely, the use of vehicles? His Lordship was prepared to proceed on the basis that the latter view was correct.

By giving a purposive construction to the word "road" what was meant was a strained construction, beyond what the word would mean in ordinary usage, sufficient to satisfy that expression of the purpose of the legislation.

It might be perfectly proper to adopt a strained construction to enable the object and purpose of legislation to be fulfilled, but it could not be taken to the length of applying unnatural meanings to familiar words or of so stretching the language that its former shape was transformed into something which was not only significantly different but had a name of its own. That was particularly so where the language had no evident ambiguity.

While his Lordship had recognised that there could be some exceptional cases where what could reasonably be described as a car park might also qualify as a road, it was the unusual character of such cases which would justify such a result in the application of the statutory language rather than any distortion of the language itself.

The adoption of a construction which departed boldly from the ordinary meaning of the language was, however, particularly appropriate where the validity of the legislation had to be tested against the provisions of European law.

Mr Sales, amicus curiae, (Friend of the Court), had referred to three Directives 72/166/EEC; 84/5/EEC and 90/232/EEC on the approximation of the laws of member states relating to insurance against civil liability in respect of the use of motor vehicles.

His Lordship was not persuaded, however, that in respect of the particular question which had arisen in the present case those Directives required the word "road" in section 145 to be construed as including a car park.

Turning to the circumstances of the present appeals, if one had recourse to the ordinary use of language, his Lordship did not consider that either of the car parks would be regarded as a road or part of a road. In each case the function of the place was for the parking of vehicles.

In the Clarke case, the judge had found that the car park by itself was not a road. Where he erred was to take account of the passage. The character and function of the car park did not change even though one could drive a motor cycle or push a pram through the passage. Even if the passage was a road that did not mean that the car park became a road.

In the Cutter case the Court of Appeal fell into the trap referred to earlier of first identifying a road within the car park, thereby identifying two things, and then, inconsistently, treating the parking bays as integral with the road.

The Decision

Save in exceptional circumstances, a car park would not qualify as a "road" for the purposes of section 145(3)(a) of the Road Traffic Act 1988 so as to be an area in respect of which a motor insurance policy had to provide cover.

The House of Lords so held in allowing appeals by;

1 General Accident Fire and Life Assurance Corporation plc against the order of the Court of Appeal, The Times December 11, 1996; [1997] 1 WLR 208) and

2 Eagle Star from the order of the Court of Appeal, The Times December 3, 1996; [1997] 1 WLR 1082).

Comment

Some Previous Decisions

The word "Road" is defined by the Road Traffic Act 1988, s. 192.

The question of whether or not a particular road is one to which the public has access is one of fact and degree see Waterfield [1964] 1 QB 164.

In Oxford v Austin [1981] RTR 416, consideration was given as to whether or not a car park was a road.

In Randall v Motor Insurers’ Bureau [1968] 1 WLR 1900, a pedestrian pavement was accepted as forming part of the road, so that a lorry, the greater part of which was on the road, could properly be said to be using the road, even though the plaintiff and that part of the lorry which caused injury to him were at the relevant time on private property.

Similarly, in Price v DPP [1990] RTR 413, Price drove across a pavement (part of which was maintained at public expense and part of which was privately owned) thereby causing a pedestrian to jump out of the way, it was held that the justices were fully entitled to conclude that the pavement as a whole constituted a road and Price was, therefore, properly convicted of driving without reasonable consideration for another road user.

In Holliday v Henry [1974] RTR 101, a case under the Vehicles (Excise) Act 1971, the respondent kept his car on a road, with a roller skate under each wheel, contending that by this device the car was not "on" the road. the Divisional Court allowed the prosecutor’s appeal, stating that it was perfectly clear that, for the purposes of the 1971 Act, the vehicle was on the road.

In Hawkins v Phillips [1980] RTR 197, a filter lane or slip road was held to be part of the main carriageway for the purposes of the Road Traffic Regulation Act 1967.

In Worth v Brooks [1959] Crim LR 855, the grass verge by the side of a carriageway was held to form part of the highway which itself constituted a road.

The primary intention of the place does not appear to be of relevance, as in all cases it remains a question of fact whether or not the area is a road to which the public has access, irrespective of whether it is publicly or privately owned Price v DPP [1990] RTR 413.

A road which is not maintainable and manageable at public expense does not preclude it from being "a road open to the public" as that expression refers to a road to which the public has access Director of Public Prosecutions v Cargo Handling Ltd [1992] RTR 318.

In Bowman v DPP [1991] RTR 263it was said that whether or not such access is sufficient for a finding that the place is a "public place" for the purposes of the Road Traffic Acts is a question of fact and degree to be arrived at after consideration of the evidence. Justices are entitled to use their "local knowledge" in arriving at their conclusion on this point, but it is good practice to inform the prosecution and defence so that they can comment .

In Montgomery v Loney [1959] NILR 171, which concerned a petrol station forecourt, the Court drew the distinction between members of the general public and persons who belong to a special class of members of the public and who have "some reason personal to them for their admittance", such as postmen, meter readers and employees going to work along a factory road.

In Rodger v Normand 1995 SLT 411, the High Court of Justiciary in Scotland decided that, as members of the public chose to go to the

school grounds in question, either because they were open to the public or because they were permitted to have access to them, the grounds were a "public place" within the meaning of the Road Traffic Act 1988.

In DPP v Coulman [1993] RTR 230, the respondent’s presence in the Freight Immigration Lanes at Dover Eastern Docks after disembarkation, whilst personal to himself, was not material as it was incapable of removing him from being a member of the public and consequently the Lanes constituted a public place for the purposes of the Road Traffic Act 1988, s5.

In Havell v DPP (1994) 158 JP 680, use of a car park, which was readily accessible from the road, without restricted access and not marked as being private, as a member of a bona fide club whose membership was not of such a size "that it was indistinguishable from the public at large in the locality" did not constitute use as a member of the general public; therefore the defendant’s appeal against a conviction for being "in charge" of a motor vehicle on a road or other public place whilst unfit through drink or drugs was allowed.

In these present Appeals the question in both cases was, was the car park a "road"?

In the case of Clarke it was an open area of ground, roughly oblong in shape, with its longer, western, side running behind a parade of shops. There were various areas delineated in paint on the surface of the park along the west and north sides to indicate particular areas in which cars might park. There was a vehicular access by means of a short drive at the northeast corner leading from a public road called Pinfold Lane. The western side of the car park was separated from the rear of the parade by a high wall.

Access from the car park to the parade could be obtained by means of a covered passage through an opening in the wall. This opening, which was higher than the level of the car park, was reached from the car park by means of a ramp which extended alongside the wall. The sides of the car park were for the most part bounded by a kerb (Clarke was sitting on this kerb when struck by a motor vehicle).

The Court of Appeal concluded that the incident had occurred on a "road".

In Cutter case, the car park was a conventional multi-storey structure. It was laid out on six floors, only four of which were used for public parking. There was an entrance to it off a public road and cars were enabled by means of carriageways and ramps to move through the successive floors. On each floor there were rows of designated parking spaces between the areas used for the passage of vehicles. The incident occurred while the car in which Cutter was sitting was stationary in one of the designated parking spaces.

The Court of Appeal held that the parking spaces were an integral part of the carriageway, which was itself a road. Thus, the incident occurred on a "road".

In conclusion, it was held that in neither of the appeals did the incident in question occur on a "road". They were not places designed or dedicated for the passage of vehicles, and neither in character nor in function did they qualify to he "roads".

Rob Jerrard