Clarke v Kato; Cutter v Eagle Star Insurance Company Ltd

JurisdictionEngland & Wales
JudgeLORD JUSTICE BELDAM,LORD JUSTICE MORRITT,SIR JOHN BALCOMBE,LORD JUSTICE POTTER,WAITE LJ,McCOWAN LJ
Judgment Date29 November 1996
Neutral Citation[1996] EWCA Civ J1122-9
Judgment citation (vLex)[1996] EWCA Civ J1129-2
Docket NumberCCRTF 95/1506/C,CCRTF 95/1175/C
CourtCourt of Appeal (Civil Division)
Date29 November 1996

[1996] EWCA Civ J1122-9

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM TUNBRIDGE WELLS COUNTY COURT

(HIS HONOUR DEPUTY JUDGE KEE)

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Beldam

Lord Justice Morritt

Sir John Balcombe

CCRTF 95/1506/C

Stuart Richard Cutter
Plaintiff/Appellant
and
Eagle Star Insurance Company Limited
Defendant/Respondent

MR R BARRACLOUGH (Instructed by Max Barford & Co, Tunbridge Wells, Kent, TN1 1QU) appeared on behalf of the Appellant.

MR C COPYWRIGHT (Instructed by C M Sinclair-Jenkins, London ECJ 8JQ) appeared on behalf of the Respondent.

LORD JUSTICE BELDAM
1

The question for the court in this appeal is whether an injury sustained by the passenger in a car in a multi-storey public car park was caused by or arose out of the use of the vehicle on a road.

2

On the 21st July 1991 the appellant was injured whilst sitting in the front passenger seat of a Volvo motor car parked in a car parking space in the Great Hall multi-storey car park, Mount Pleasant Road, Tunbridge Wells. The car was owned by the plaintiff's friend Mr Pennial who had left an aerosol can of lighter fuel in the rear of the car behind the front seats. The can had leaked creating an inflammable gas in the car. After returning to the car and before driving off, Mr Pennial lit a cigarette and as he did so he ignited the gas causing a fire. The plaintiff was burnt and claimed damages from Mr Pennial who was entitled to the benefit of a motor insurance policy issued by the respondent, Eagle Star Insurance Co. Ltd. If Mr Pennial had reported the accident and complied with the terms of the policy, the respondent would have indemnified him and would no doubt have taken over conduct of the plaintiff's claim. But Mr Pennial did not do so and on 28th April 1992 the appellant's solicitor gave the respondent notice under sec. 149 of the Road Traffic Act 1988 that he was about to issue proceedings against their insured, Mr Pennial.

3

On 5th May 1992 the appellant issued proceedings claiming damages for the injuries he had received alleging they were due to the negligence of Mr Pennial in leaving the lighter fuel container in the motor car in circumstances in which it could be caused to give off inflammable gas. Judgment in default was obtained by the appellant on 10th December 1992 and on 29th October His Hon. Judge Hargrove QC assessed the appellant's damages at £8,547.33, including interest. He gave judgment for that sum and for costs which were subsequently taxed in the sum of £4,105.86. The appellant took proceedings to make Mr Pennial bankrupt at an additional cost of £1,139.05. He claimed a total of £15,575.54 from the respondent insurers.

4

The respondent conceded that the accident and the appellant's consequent injury arose out of the use of Mr Pennial's car but contended that the car was not at the time of the accident being used on a road as defined in sec. 192 of the Road Traffic Act 1988.

5

The action was tried by Deputy Judge Kee in the Tunbridge Wells County Court on 21st September 1995. He dismissed the plaintiff's claim holding that the accident had not occurred on a road. He rejected a submission by the respondent that, even if some part of the car park over which cars travelled could be regarded as a road, the parking bays could not. They were analogous to a lay-by which was to be considered as part of a road. He thought that the car park had to be looked at as a whole and held "this multi-storey car park is not a road…" He relied principally on "the criterion laid down by Kilner-Brown J. in the Oxford v Austin case"

6

The appellant contends that the judge ought to have found that the car park was a road; the respondent by cross notice argued that even if some part of the car park was held to be a road the car parking space ought not to be regarded as part of the road.

7

The appellant's right to recover the amount of his judgment directly from the respondent results from the duty of an insurer under sec. 151 of the Road Traffic Act 1988 to satisfy a judgment obtained against a person insured for third party risks in respect of a liability required to be covered by a policy of insurance under sec. 145 of the Act.

8

Sec. 145(3)(a) requires that such a policy —

"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 the vehicle on a road in Great Britain …"

9

Thus the respondent argues that, unless the insured was using his vehicle on a "road", it is not bound to meet the judgment. If the parking place where the vehicle was stationed at the time of the accident was not within the definition of "road" in sec. 192 of the Act, the insured's liability was not a liability required to be insured under sec. 145(3)(a) of the Act.

10

Sec. 192 of the Act provides:

""road", in relation to England and Wales means any highway and any other road to which the public has access."

11

As might be expected in a Road Traffic Act, the word "road" occurs many times. It appears in sections creating offences, sections imposing duties on drivers and sections providing for traffic regulation in general. The definition provided in sec. 192 has thus to do duty in many different circumstances. It is not surprising therefore to find decisions, particularly on cases stated for the opinion of the Divisional Court, in which that court refers in particular instances to the decision being one of fact for the justices and thus whether there was evidence upon which the justices could reach the decision called in question. When however the facts are determined or are not in dispute, the question whether they support the conclusion that the place in question is or is not "a road" within the definition in the Act is a question of law.

12

The definition is clearly intended to include roads which are not highways but to exclude roads to which the public do not have access. There are therefore two separate questions:

(i) Is the place in question a road?

(ii) If it is a road, do the public have access to it?

13

Many of the reported cases concern the second question and in particular what type of access by the public is necessary. In deciding that question, Lord Widgery in Cox v White [1976] RTR 248 at page 251 gave this advice:

"I would invite the justices next time, and other justices charged with this same question, to look at the very brief statement of Lord Sands in Harrison v Hill [1932] JC 13, 17 … Lord Sands said:

In my view, 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.

I think that in 99 cases out of 100 that direction is all the justices need to decide whether a road is a "road" for current purposes."

14

The present case requires the court to focus on the first question, whether the car park or any part of it can be considered a road having regard to its layout, its physical characteristics and the type of use made of it. In some of the cases it appears to have been assumed that the car park is capable of being a road if members of the public have access to it for the purpose of passing across it or if it is possible to use it as a means of access from one road to another but, unless the evidence shows those characteristics, it is not a road within the definition. In my view these are relevant but not determinative attributes.

15

The public have access to the Great Hall multi-storey car park for the purpose of leaving their cars on payment of a parking fee and it is conceded that, if the car park or any part of it can be considered "a road", it is a road to which the public have access.

16

The physical characteristics of the car park are clearly shown in photographs and plans put before us. Briefly described, it is a conventional multi-storey car park of the kind provided for off-street parking in many towns. It is laid out on six floors, though only four are used by the public for parking. Access is gained to the car park by an entrance leading from Mount Pleasant Avenue. On entering the car park, traffic is directed by a standard road sign to give way to traffic emerging. A carriageway three metres wide is provided for a distance of some thirty metres between rows of parking spaces, leading to ramps which give access to the floor above or the floor beneath. There is an exit on each side of the car park and pedestrians can cross from one side of the car park to the other to visit an arcade of shops and offices fronting on Mount Pleasant Road. Road signs and carriageway markings direct cars entering and driving within the car park. Drivers follow the carriageway until an empty space is available. A complete circuit of one level of the car park is about 80 metres so that the total distance marked off for and used by cars driving from the entrance to the fourth floor is approximately 320 metres. As the photographs show, carriageway markings including white direction arrows, give way lines and "slow" signs are painted on the surface to regulate the behaviour of traffic.

17

On a typical floor there are 36 car parking spaces between the areas marked out for the passage of vehicles and a further 20 on each side of the areas.

18

Because of the vast increase in the use by the public of motor vehicles, the size of car parks generally has greatly increased. Many super-stores and shopping centres provide very large areas for car parking which are laid out on...

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