Clarke v Kato; Cutter v Eagle Star Insurance Company Ltd
| Jurisdiction | UK Non-devolved |
| Judge | LORD BROWNE-WILKINSON,LORD GOFF OF CHIEVELEY,LORD SLYNN OF HADLEY,LORD STEYN,LORD CLYDE |
| Judgment Date | 22 October 1998 |
| Judgment citation (vLex) | [1998] UKHL J1022-1 |
| Date | 22 October 1998 |
| Court | House of Lords |
And Others
(Conjoined Appeals)
[1998] UKHL J1022-1
Lord Browne-Wilkinson
Lord Goff of Chieveley
Lord Slynn of Hadley
Lord Steyn
Lord Clyde
HOUSE OF LORDS
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.
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.
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.
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.
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...
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Table of Cases
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