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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Clark and Others v. Kato, Smith and General Accident Fire & Life Assurance Corporation Plc [1998] UKHL 36; [1998] 4 All ER 417; [1998] WLR 1647 (22nd October, 1998)
URL: http://www.bailii.org/uk/cases/UKHL/1998/36.html
Cite as: [1998] UKHL 36, [1998] 4 All ER 417, [1998] 1 WLR 1647, [1998] WLR 1647, [1998] 4 All ER 417

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Clark and Others v. Kato, Smith and General Accident Fire & Life Assurance Corporation Plc [1998] UKHL 36; [1998] 4 All ER 417; [1998] WLR 1647 (22nd October, 1998)

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:

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 WLR 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:

Lord Sands observed in the same case at p. 17:

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

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.
 

      The question is what is the danger from which the public are to be protected. Is it the use of vehicles on roads, or is it more widely the use of vehicles? If it is the former then one is left with no guidance for a purposive construction. If the purpose of the Act is to protect persons on roads then one is still left with the problem of defining a road. Such might well be thought to be the purpose of the Act given the repeated references to roads throughout the legislation. However I am prepared to proceed on the basis that the latter view is correct. It may have some support from the terms of the title set out in the Road Traffic Act 1930 and in the heading to Part II of that Act, "Provision against Third-Party Risks arising out of the use of Motor Vehicles." The provision of insurance to cover liability for injury sustained by third parties in the same context may then be seen as a measure designed for the protection of the public from dangers arising out of the use of motor vehicles. It may also be noted that in section 34 of the Act of 1988 the driving of motor vehicles on any land elsewhere than on roads is prohibited. By giving a purposive construction to the word "road" what is meant is a strained construction, beyond the literal meaning of the word or beyond what the word would mean in ordinary usage, sufficient to satisfy that expression of the purpose of the legislation.

      It may be perfectly proper to adopt even a strained construction to enable the object and purpose of legislation to be fulfilled. But it cannot be taken to the length of applying unnatural meanings to familiar words or of so stretching the language that its former shape is transformed into something which is not only significantly different but has a name of its own. This must particularly be so where the language has no evident ambiguity or uncertainty about it. While I have recognised that there could be some exceptional cases where what can reasonably be described as a car park may also qualify as a road, it is 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.

      But beyond this objection in the present context there are in my view two particular considerations which militate against any such broad approach. In the first place it has to be remembered that in many instances the purpose of the legislation is achieved by the creation of an offence. Against the employment of a broad approach to express the purpose of the Act must be put the undesirability of adopting anything beyond a strict construction of provisions which have penal consequences.

      Secondly, it is clear that on the respondents' construction the whole body of statutory provisions and regulations will be applicable to car parks. But these provisions include powers to carry out works which will constitute some invasion of the proprietor's rights in his land. The provisions of Parts I,III, and V to VIII of the Act of 1984 contain a variety of such powers. It is true that to an extent such an invasion has already been authorised by the legislation, but in so far as this can be said in respect of roads in the ordinary sense of that word that fact cannot be founded upon in relation to car parks without begging the question in the present appeals. I do not regard it as an insignificant consideration that on the respondents' construction a greater opportunity is afforded to statutory authorities to interfere with private property, even although this may be thought to be in the interests of public safety.

      I turn next to the European dimension which emerged in the submissions of the amicus curiae.

      The adoption of a construction which departs boldly from the ordinary meaning of the language of the statute is, however, particularly appropriate where the validity of legislation has to be tested against the provisions of European law. In that context it is proper to strain to give effect to the design and purpose behind the legislation, and to give weight to the spirit rather than the letter. In this way the Court may implement the requirement formulated by the European Court of Justice in Marleasing SA v. La Comercial Internacional de Alimentacion SA (Case C-106/89) [1990] E.C.R. 1-4135 where, at paragraph 8 of the judgment, it was stated:

But even in this context the exercise must still be one of construction and it should not exceed the limits of what is reasonable.

      Mr. Sales referred to three European Directives on the approximation of the laws of member states relating to insurance against civil liability in respect of the use of motor vehicles. These are the First Council Directive (72/166/EEC of 24 April 1972), the Second Council Directive (84/5/EEC of 30 December 1983), and the Third Council Directive (90/232/EEC of 14 May 1990). Each of these was successively implemented in British domestic law in so far as the existing law did not already meet their requirements.

      In the present two cases the accident occurred within Great Britain. There is no suggestion that either vehicle was travelling between any member States. I think that it may also be assumed that in each case the territory in which the vehicle was normally based was Great Britain, that is to say, in accordance with the definition contained in Article 1 of the First Directive, that the vehicle in each case was registered in this country. The question then arises whether these Directives, or any of them, require this country to legislate in order to secure that insurance protection is available for the victims of accidents which occur in Great Britain through the use of a motor vehicle which is normally based in Great Britain where that accident did not occur on a road.

      Having considered the terms of the Directives I am not persuaded that any of them impose such an obligation. The basic purpose as expressed in the first preamble to the First Directive is to bring about the free movement of goods and persons with a view to the creation of a common market. The following preambles point to the restraints on free movement caused by disparities in national requirements for insurance and the consequential checks and controls at frontiers. The text later states:

Article 3 of the First Directive provides:

      It seems to me that while in this Directive it is certainly required that there be in each country an insurance against civil liability in respect of the use of motor vehicles, recognition is being paid to the fact that there may be differences in the precise cover which national laws may impose in the different member States. The First Directive was implemented by the Motor Vehicles (Compulsory Insurance) (No.2) Regulations 1973 (SI 1973 No.2143), introducing amendments to the then recent consolidation of road traffic legislation in the Road Traffic Act 1972. One of these was the adding of the words "in Great Britain" after the words "on a road" in section 145(3), the forerunner of section 145(3)(a) of the Act of 1988. It also introduced what came to be section 145(3)(b) of the Act of 1988, adding the requirement that the insurance must be in respect of any liability incurred in respect of the use of a vehicle in the territory of each of the member states of the Community, excluding Great Britain and Gibraltar, according to the law on compulsory motor insurance of the state where the liability might be incurred. It seems to me that the implementing legislation was entitled to restrict the cover in respect of the use of vehicles on roads to roads in Great Britain and correct to extend the requirements so as to cover liabilities incurred in respect of the use of the vehicle in other member states according to the local law on compulsory insurance in respect of the use of the vehicle in the other member states. Thus while the restriction to the use on roads was retained for Great Britain, the possibility was recognised that there might be a different scope of the requirement for insurance in other states.

      The Second Directive builds on the first. The Second Directive was implemented, so far as was considered to be necessary, by the Motor Vehicles (Compulsory Insurance) Regulations 1987 (SI 1987 No.2171), which, among other provisions, extended the scope of the insurance cover required under section 145(3)(a) to include damage to property. But I do not find further guidance from the Second Directive for the purposes of the present problem.

      The Third Directive seeks further to supplement the earlier ones. It affirms in Article 1 that the insurance referred to in Article 3(1) of the First Directive included liability to passengers. Article 2 states:

      Here again is a recognition of the possibility of difference in the precise extent of the cover between the laws of individual member States. The scope or extent of the cover required in different member States may be greater or smaller than in others, but the policy must secure that the greater cover is available in respect of those States where the greater cover is required by its domestic law. That seems to me to have been recognised in the implementation of the Directive. The Third Directive was implemented so far as was considered necessary by the Motor Vehicles (Compulsory Insurance) Regulations 1992 (SI 1992 No.3036). As Mr. Sales has pointed out this Statutory Instrument is later in date than the dates of the incidents which have given rise to the present claims. But I consider that it is right to look at it. By Article 2(1) of those Regulations a new paragraph (aa) was added to section 145(3) of the Act of 1988. This provision required that in the case of a vehicle normally based in the territory of another member State the insurance must cover any civil liability which may be incurred by the insured:

      By Article 2(2) of the Regulations amendment was made to section 145(3)(b) so as to relate that provision to vehicles normally based in Great Britain and to secure that the cover will meet the requirements of the law of the State where the event giving rise to the liability occurred, or, if it would give higher cover, the law which would be applicable if that event had occurred in Great Britain.

      The cover is required to be available for a vehicle registered in another member State than Great Britain where the liability arises as a result of "an event related to the use of the vehicle in Great Britain." So that would cover incidents occurring on or off a road. But this is to apply only if the law of the other member State requires insurance for a civil liability "if the place where the vehicle was used" had been in that other member state and the cover required in that other state was higher than the cover required under section 145(3)(a). Even if the directives are to be understood as requiring insurance cover in respect of vehicles for events occurring in other places than on roads that requirement seems to me to have been satisfied by the amendments to section 145 in so far as the provisions of that section relate to the movement within Great Britain of vehicles based in other member states and the movement in other member states of vehicles based in Great Britain. None of that however touches upon the validity of section 145(3)(a). Nor is it of consequence that the enforcement provision in section 143 is limited to the use of a motor vehicle on a road.

      Stress was placed on the reference to "the entire territory" in Article 2 of the Third Directive as an indication of an intention to secure cover against liability wherever an accident might occur, whether on or off a road. But the reference is to the entire territory of the Community, not of each member State, and in my view the intention is simply to secure that each policy of insurance shall be effective to cover accidents in all the Member States comprised in the Community, and not just some of them. The expression "Territory in which the vehicle is normally based" is defined in Article 1 of the First Directive in terms which suggest that there also the word "territory" is intended to have a political rather than a geographical connotation. In connection with the sufficiency of the implementing legislation in Great Britain it appears that vehicle insurance has been the subject of discussion with the Commission and that no action has been taken either further to amend the British legislation or to challenge its terms.

      I am not persuaded that in respect of the particular question which has arisen in the present cases the Directives require that the word "road" in section 145 should be construed as including a car park, or indeed as including any place whatsoever where a vehicle might be used. Indeed it might be that while the language of the directives is of "the use of vehicles" it is with travel and movement between states that they are dealing and that they should be taken to be concerned simply with the use of vehicles on a road, which is the usual place for a vehicle to be used. Thus it may be that the addition of the words "on a road" in section 145(3)(a) could be consistent with the universal intention of the directives in their application to traffic between member states. Indeed it may be noticed that Article 5 of the Third Directive refers expressly to parties involved in "a road traffic accident." The context there is the necessity of identifying promptly the insurance company covering the liability. It would be curious if that provision was meant to exclude accidents occurring elsewhere than on roads.

      It was suggested that if the Directives did require a broad construction then it might be that this particular construction could be restricted to the use of the word in section 145, leaving it to be construed more narrowly elsewhere in the legislation. But the word "road" runs through the whole of the legislation and in my view it would be going beyond the bounds of legitimate construction to introduce a special meaning for the word in section 145 and leave the same word to have a different meaning wherever else it occurs. This would not only run counter to the usual presumption that a word should bear the same meaning throughout the same Act but would be a quite extraordinary course where the word is so frequently used in other sections of the Act. Furthermore, while it may be appropriate to add words by way of modification of the meaning of a statutory expression in order to find a construction consistent with European law, as was done in Litster v. Forth Dry Dock and Engineering Co. Ltd [1990] 1 AC 546, it would in my view be going beyond the judicial task of construction to add to the word "road" the words "or in any public place", in circumstances where Parliament has expressly used that phrase in the context of other particular sections of the Act but has refrained from doing so in section 145.

      Accordingly I see no necessity to resort to any kind of broad construction such as could include a car park within the expression "road". Indeed on the contrary there appear to be some troublesome consequences if such an approach was adopted. Two examples may be mentioned. One is that there is at least a serious doubt whether a local authority could lawfully charge for parking in an off-street car park. The point here relates to section 35(1)(iii) of the Act of 1984 together with the definition of "off-street parking place" in section 142 of that Act. The former section allows for charges to be paid where an off-street park is being used. But under the definition such a park has to be one on land which does not form part of a road. It seems that if the respondents are correct that a car park is a road the section enabling charges to be made will not be available. An attempt was made in argument to distinguish between the provision of a car park and its existence thereafter, so as to enable it, after construction, to qualify for the purposes of section 35(1)(iii). But such attempts to overcome the problem, while commendable for their ingenuity, seem to me to be lacking in substance and I have not been persuaded that a real difficulty may not arise here on the respondents' approach. The other example is the application of the Road Vehicles Licensing Regulations 1989 (SI 1989 No. 1796). These were made under section 41 of the Act of 1988 and the word "road" in the regulations must bear the meaning which it has in that Act. If a car park is, as the respondents contend, a road it looks from the regulations as if vehicles parked in car parks would require to keep their lights lit from sunset to sunrise, which seems at the least somewhat surprising. Again there may be room for argument about the application of the regulation, but no satisfactory solution was forthcoming at the hearing and it is enough to find that there is at least a problem here.

      It was suggested in argument that various provisions of the legislation could with advantage be made to apply to car parks. It was, for example, pointed out that under section 163 of the Act of 1988 it is only on a road that a driver is required to stop on being requested to do so by a constable in uniform. But it is hard to believe that the fact that the provision does not apply within a car park gives rise in practice to any serious problem. In the various other sections to which attention was drawn there may or may not be good reason to extend their application to car parks. But all of that is matter of policy and not matter to be canvassed or determined in the present appeals. Despite the detailed and diligent investigations which have been made I remain uneasy that situations could be found within the complex collection of statutory provisions regarding road traffic where the adoption of the broad construction for which the respondents contend would lead to difficulties if not absurdities. As appears from paragraph 8.7 of their Report the North Committee was conscious of the difficulties of extending the whole Act, for example to conduct in any public place. In relation to the legislation before us, if it is thought that an extension of the application of the Act, or of any part of it, is required, that must, in my view, be matter for Parliament to achieve.

      Turning then finally to the circumstances of the present appeals and the particular places where the respective incidents occurred, I consider that in neither case did the use of the car occur on a road. If one has recourse to the ordinary use of language I do not consider that either of these car parks would be regarded as a road or as a part of a road. They seem on the contrary to be places to which a road may lead. They are not places designed or dedicated for the passage of vehicles. Neither in character nor function do either of the car parks in the present appeals readily qualify as roads. The open area in the case of Clarke does not seem like what one usually regards as a road. More strikingly the six-storey structure in the case of Cutter is in character even less like a road. In each case the function of the place was for the parking of vehicles. Nor does it seem to me to accord with the ordinary use of language to describe the passage and the car park in the case of Clarke as constituting a road. While a route useable by pedestrians or even bicycles may be identified across the park and through the passage it seems to me that cannot suffice to make the car park a road.

      The application of the statutory term "road" comes to be a matter of fact and circumstance to be determined by the tribunal of fact properly directing itself in the law. In the case of Clarke the judge held that the park taken by itself was not a road. I think that was correct and that finding should be respected. Where he erred, and where the Court of Appeal also went astray, was to take account of the passage. The character and the function of the car park does not in my view change even although one can drive a motor cycle, or push a perambulator through the passage in order to enter or leave the park. Even if the passage was a road that does not mean that the park becomes a road. In the case of Cutter the judge took the view that the multi-storey park was not a road. I find no error in his approach and I would respect that decision as a finding in fact. It seems to me that the Court of Appeal fell into the trap to which I have earlier referred of first identifying a road within the park, thereby identifying two things, the road and the park, and then, inconsistently, treating the parking bays as integral with the road. Even if the carriageway should be treated as a road, the bays must retain their own integrity and it was while the car was in a parking bay, not on the carriageway, that the incident occurred. One cannot but feel sympathy for the unfortunate victims of these two accidents but it must be for the Legislature to decide as matter of policy whether a remedy should be provided in such cases as these, and more particularly it must be for the Legislature to decide, if an alteration of the law is to be made, precisely how that alteration ought to be achieved.

      I would allow both appeals. In the case of Clarke paragraph 1 of the order of Mr. Assistant Recorder Goodchild of 20 July 1995 should be reversed and the preliminary issue should be determined in favour of the third defendant. In the case of Cutter the order of His Honour Deputy Judge Kee of 21 September 1995 should be restored.


1998 Crown Copyright


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