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HOUSE OF LORDS
Lord Browne-Wilkinson
Lord Goff of Chieveley
Lord Slynn of Hadley
Lord Steyn
Lord Clyde
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE
CLARKE (A.P.)
(RESPONDENT) AND OTHERS
v.
KATO, SMITH AND GENERAL ACCIDENT
FIRE & LIFE ASSURANCE CORPORATION PLC
(APPELLANTS)
CUTTER
(RESPONDENT)
v.
EAGLE STAR INSURANCE COMPANY
(APPELLANTS)
(CONJOINED APPEALS)
ON 22 OCTOBER 1998
LORD BROWNE-WILKINSON
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Clyde. For the reasons which he gives I would allow both appeals and make the orders which he proposes.
LORD GOFF OF CHIEVELEY
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Clyde. For the reasons which he gives I would allow both appeals and make the orders which he proposes.
LORD SLYNN OF HADLEY
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Clyde. For the reasons he gives I would allow both appeals and make the orders he proposes.
LORD STEYN
My Lords,
I have had the advantage of reading a draft of the speech of my noble and learned friend Lord Clyde. For the reasons he gives I would allow both appeals.
LORD CLYDE
My Lords,
These two appeals concern the construction and application of the word "road" in section 145(3)(a) of the Road Traffic Act 1988. The Appellant in each case is an insurance company. Each of the two appeals relates to an incident involving a motor car. In the one case on 15 August 1991 Ellen Clarke was sitting on a kerb at the side of a car park in Grimsby, South Humberside, talking to some friends. She was struck by a car driven by Paul Kato with the permission of his companion Jarred Smith. In the second case on 21 July 1991 Stuart Cutter was sitting in the front passenger seat of a motor car parked in a car parking space in a multi-storey car-park in Tunbridge Wells. There was a can of lighter fuel in the rear of the car which had leaked inflammable gas into the inside of the car. The driver entered the car and before driving off lit a cigarette. The gas was thereby ignited and Cutter sustained injury.
In neither case does the injured party have a practical prospect of recovery from the driver. In the case of Clarke the driver was not insured. Clarke brought an action against Kato, Smith and the Motor Insurers' Bureau. The General Accident Fire and Life Assurance Corporation plc was later substituted as the third defendant in place of the Bureau. In the case of Cutter the driver forfeited his right to an indemnity under his insurance policy. In these circumstances a question has arisen regarding the liability of the respective insurance company under section 151 of the Act of 1988. In Clarke's case the point has been taken as a preliminary issue. In Cutter's case an award of damages and costs has been made in proceedings against the driver.
I turn first to the relevant statutory provisions. Section 151(5) of the Act of 1988 imposes an obligation on an insurer to satisfy a judgment awarded against the insured even although the insurer may be entitled to avoid or cancel the policy or may have avoided or cancelled it. By virtue of section 151(2) the scope of the provision is limited to "judgments relating to a liability with respect to any matter where liability with respect to that matter is required to be covered by a policy of insurance under section 145 . . ." Section 145(3) requires inter alia that the policy:
"(a) must insure such person, persons or classes of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of or bodily injury to any person or damage to property caused by, or arising out of, the use of a vehicle on a road in Great Britain . . ."
The word "road" is defined in section 192 of the Act. For England and Wales it means "any highway and any other road to which the public has access . . ."
It is accepted that in each case a car was being used. The issue in each case has come to be whether the car in question was being used on a road for the purposes of section 145(3)(a). In each case the Court of Appeal has held that the respective car was being used on a road. The insurance companies have appealed.
It became evident when the appeal first came to be heard before this House that the decision in it could have far reaching consequences. The word "road" is used repeatedly throughout the primary and secondary legislation relating to road traffic and the construction of the word in section 145(3)(a) might affect a considerable number of other provisions. In these circumstances the hearing was adjourned so that we could have the benefit of further guidance from an amicus curiae. At the resumed hearing we had the assistance of a lucid and useful presentation from Mr. Sales for which our gratitude should be recorded.
It is convenient at this stage to narrate the facts and the history of the cases in more detail. There was an obvious physical distinction between the car parks which feature in each case. In the case of Clarke the park 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 north-east 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 and it was while she was sitting on the kerb on the western side against the wall that the plaintiff Clarke was struck and injured by the car driven by Kato which had been parked in the car park.
The Assistant Recorder took the view that the car park on its own and ignoring the passageway to the parade was not a road. But he then looked at the passage and the park together, considered that they formed a line of communication from east to west and that bicycles, prams and motor bicycles could use the passage, and so reached the conclusion that the incident had occurred on a road. The result was affirmed by the Court of Appeal [1997] 1 W.l.R. 208. That court held that since there was through traffic, even if there was only unrestricted pedestrian traffic, the car park could be regarded as a road.
The car park in the case of Cutter 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.
In the County Court the judge decided that he should look at the car park as a whole. On a consideration of the particular circumstances he took the view that it was not a road. He sought in particular to follow the criterion expressed by Kilner Brown J. in Oxford v. Austin [1981] R.T.R. 416 at p. 418 where he referred to "a definable way over which vehicles may pass which in plain common sense qualifies as a road." The Court of Appeal [1997] 1 W.L.R. 1082 sought to give the definition in section 192 a broad meaning and held that the parking spaces were an integral part of the carriageway, which was itself a road. They accordingly allowed the appeal.
I turn next to consider the statutory definition of the word "road" in section 192 of the Act of 1988. In applying the definition the first question to be asked is whether the place in issue is a highway. We are not concerned here with that possibility and it is sufficient to observe that it includes such things as public footpaths and public bridleways. Failing an affirmative answer one then has to proceed to the words which follow; Does the place qualify as being "any other road to which the public has access?" This provision has to be analysed into two parts; first, is it a road? and second, if so, is it a road to which the public has access? In the present case we are not concerned with the matter of public access, but two observations on that phrase may be made. The first is that the element of public access has to be tested by reference to facts as well as rights. The question in this context is whether the public actually and legally have access. As the Lord Justice-General (Clyde) observed in Harrison v. Hill 1932 J.C. 13, 16:
"There must be, as matter of fact, walking or driving by the public on the road, and such walking or driving must be lawfully performed--that is to say, must be permitted or allowed, either expressly or implicitly, by the person or persons to whom the road belongs."
Lord Sands observed in the same case at p. 17:
"Any road may be regarded as a road to which the public have access upon which members of the public are to be found who have not obtained access either by overcoming a physical obstruction or in defiance of prohibition express or implied."
Secondly, the public in this context means the general public. To quote again from the opinion of the Lord Justice-General in Harrison v. Hill at p. 16
"I think that, when the statute speaks of 'the public' in this connection, what is meant is the public generally, and not the special class of members of the public who have occasion for business or social purposes to go the farmhouse or to any part of the farm itself; were it otherwise, the definition might just as well have included all private roads as well as all public highways."
It is important to observe that the consideration of access by the public only arises if the place is a road. It may well be that the public has access to it but that is not enough. As was recognised in Griffin v. Squires [1958] 1 W.L.R. 1106 it has also to be a road. In Oxford v. Austin [1981] R.T.R. 416, 418 Kilner Brown J. referred to a road as "a definable way between two points over which vehicles could pass." I would hesitate to formulate a comprehensive definition whereby a place may be identified as a road, but some guidance should be found by considering its physical character and the function which it exists to serve. One obvious feature of a road as commonly understood is that its physical limits are defined or at least definable. It should always be possible to ascertain the sides of a road or to have them ascertained. Its location should be identifiable as a route or way. It will often have a prepared surface and have been manufactured or constructed. But it may simply have developed by the repeated passage of traffic over the same area of land. It may be continuous, like a circular route, or it may come to a termination, as in the case of a cul-de-sac. A road may run on a single line without diversion or it may have branches. A branch which leads for example to a hotel or some other place of refreshment may qualify as a road, particularly, but by no means exclusively, where it leads into and continues out of the place in question, such as for example the forecourt in Bugge v. Taylor [1941] 1 K.B. 198. I do not find it helpful to use the language of a "through route" beyond recognising that a road should lead from one point to another.
But it is also necessary to consider the function of the place in order to see if it qualifies as a road. Essentially a road serves as a means of access. It leads from one place to another and constitutes a route whereby travellers may move conveniently between the places to which and from which it leads. It is thus a defined or at least a definable way intended to enable those who pass over it to reach a destination. Its precise extent will require to be a matter of detailed decision as matter of fact in the particular circumstances. Lines may require to be drawn to determine the point at which the road ends and the destination has been reached. Where there is a door or a gate the problem may be readily resolved. Where there is no physical point which can be readily identified, then by an exercise of reasonable judgment an imaginary line will have to be drawn to mark the point where it should be held that the road has ended. Whether or not a particular area is or is not a road eventually comes to be a matter of fact. It was in the context of the particular facts in Griffin v. Squires [1958] 1 W.L.R. 1106 that the Court considered that the magistrates had been entitled to hold that a car park was not a road.
In the present case the question is raised whether one or other or both of the car parks qualifies as a road. In the generality of the matter it seems to me that in the ordinary use of language a car park does not so qualify. In character and more especially in function they are distinct. It is of course possible to park on a road, but that does not mean that the road is a car park. Correspondingly one can drive from one point to another over a car park, but that does not mean that the route which has been taken is a road. It is here that the distinction in function between road and car park is of importance. The proper function of a road is to enable movement along it to a destination. Incidentally a vehicle on it may be stationary. One can use a road for parking. The proper function of a car park is to enable vehicles to stand and wait. A car may be driven across it; but that is only incidental to the principal function of parking. A hard shoulder may be seen to form part of a road. A more delicate question could arise with regard to a lay-by, but where it is designed to serve only as a temporary stopping place incidental to the function of the road it may well be correct to treat it as part of the road. While I would accept that circumstances can occur where an area of land which can be reasonably described as a car park could qualify as a road for the purposes of the legislation I consider that such circumstances would be somewhat exceptional.
The possibility was canvassed in each of the two present cases whether there might not be a road within the respective car park. In Clarke where there were only some marked bays for parking, there was no definable limit of a carriageway short of the whole area, with the possible exception of the marked bays. In Cutter it seems easier to identify a carriageway running through the building up or down the ramps and over the floors. But there is one trap to be guarded against in such an approach, to which I shall have to refer again later. The initial analysis distinguishes the carriageway and the car parking areas within the car park. That may be an acceptable analysis in some cases, although it may lead to undesirably fine questions whether a vehicle was in a bay or on the carriageway. But once that analysis has been adopted it is not then permissible to claim that the car parking areas are an integral part of the carriageway and so establish the whole as a road. Once the analysis has been made which distinguishes areas of road from areas of car park, the latter cannot simply be integrated with the former.
The distinction between a road and a car park which is reflected in the ordinary use of words is reinforced by a consideration of the language of the legislation. Section 25 of the 1988 Act which prescribes the offence of tampering with a vehicle starts with the words "If, while a motor vehicle is on a road or on a parking place . . . ." This plain recognition of a distinction between the two things cannot, as was suggested in argument, be put aside as simply a fortuitous anomaly in a consolidation statute, particularly when one finds the same distinction in the earlier appearance of the provision in section 29(2) of the Road Traffic Act 1930. Indeed the recognition of parking places for vehicles as a distinct matter can be found in section 68 of the Public Health Act 1925 where a specific definition of the term is given. A corresponding distinction can be seen in the language of the Road Traffic Regulation Act 1984 between roads and parking places. While there is a difference in the precise terms of the statutory definition in that Act from those in the Act of 1988, there appears to be no difference intended as regards what is meant by the words "any other road to which the public has access." The distinction recognised by Parliament between a road and a parking place can be found in the provisions forming Part IV of the Act of 1984 and the definition of "street parking place" and "off-street parking place" in section 142. In particular section 57(1)(b) empowers the provision and maintenance of "suitable parking places, otherwise than on roads, for vehicles . . . ." While a parking place could be on a road, it is nevertheless not itself a road. All the less is there reason to regard a car park as a road.
A more formidable argument for the appellants in my view lies in the fact that the legislation is in certain sections expressly made to apply not simply to "a road" but to "a road or other public place." These added words appeared in section 15(1) of the Road Traffic Act 1930 in relation to the offence of driving a motor vehicle when under the influence of drink or drugs. Following on the report of the North Committee in April 1988 these added words were introduced by sections 1 and 2 of the Road Traffic Act 1991 into the first three sections of the Act of 1988 which prescribe certain serious driving offences. While there was some discussion in argument before us whether the North Committee had correctly stated the law on the meaning of the word "road" the express addition of the words seems to me to be a clear indication that a conscious extension of the scope of the provisions in question was being made, reinforcing the conclusion that where the word "road" stands alone it bears its ordinary meaning and is not to be extended to public places such as car parks. The North Committee referred in paragraph 8.10 of its Report to the provision for insurance which was then in section 145(3)(a) of the Road Traffic Act 1972, but it was not within its remit to consider the desirability of making a similar addition to its terms. Attention was thus drawn to the matter, but no such addition has been made to that section. The contrast in the terminology used remains as a matter of significance.
The word "road" is plainly intended to cover all kinds of roads. It embraces not only highways but "any other" roads. So a considerable breadth of meaning is available, provided that the place still qualifies as a "road." But it is argued that a greater breadth should be allowed by way of a purposive construction. If that approach is to be adopted the first step must be to identify the purpose of the legislation. The purpose of the Act of 1988 is stated as a consolidating Act so that little assistance is obtained from the title. Certainly the purpose is to achieve some greater public protection. That was recognised in Harrison v. Hill [1932] J.C. 13 in relation to the construction of the words "to which the public has access" in the Road Traffic Act 1930. But in the present context a more precise definition of the purpose is required.
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