Plaintiffs injured by vehicles in car parks – Passengers claiming damages from insurers – Insurers liable for use of car while on a “road” – Whether vehicles were on a “road” – Section 145(3)(a) of the Road Traffic Act 1988 – House of Lords holding car parks outside definition of “road”
The two appeals concerned the construction and application of the word “road” in section 145(3)(a) of the Road Traffic Act 1988. The plaintiff in the first case (Clarke) was sitting on a kerb in a car park when she was struck by a car. The driver was not insured and the plaintiff brought an action against the Motor Insurers’ Bureau, which was later substituted by an insurance company, General Accident. By section 151 of the 1988 Act it was the duty of the relevant insurance company to satisfy a judgment relating to a liability that was required to be covered by a policy. The insurance company contended that section 145(3)(a) of the Act only required a policy to insure liability which might be incurred in respect of bodily injury caused by “the use of a vehicle on a road”, and that at the time of the accident the car was not being used on a “road” within the definition of section 192, namely “any highway and other road to which the public has access . . .”. The matter was heard as a preliminary issue. The judge found 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”. The Court of Appeal affirmed the decision, concluding that the car park could be regarded as a “road” since there was through traffic, even if it was only unrestricted pedestrian traffic.
The plaintiff in the second case (Cutter) was sitting in a car that was parked in a car-parking bay in a conventional multi-storey car park. There was a can of lighter fuel in the rear of the car, which had leaked inflammable gas. The owner returned to the car and, before driving off, lit a cigarette, which caused the gas to ignite, resulting in the plaintiff suffering burns. Cutter issued proceedings against the owner claiming damages and obtained judgment in default. He then claimed the amount of the judgment from the insurers, Eagle Star, under section 151 of the Act. The judge held that the accident had not occurred on a “road” as defined by section 192 and, accordingly, Cutter was not entitled to recover the amount of his judgment. The Court of Appeal allowed the appeal, holding that the definition of “road” in section 192 was to be given a broad meaning consistent with the intention of the Act and that the car-parking bays were an integral part of the carriageway in the car park, which was itself a “road”: see [1996] PLSCS 55. The insurance companies appealed to the House of Lords.
Held The insurance companies’ appeals were allowed.
1. Directives 77/166/EEC, 84/5/EEC and 90/232/EEC, which related to the approximation of the law of member states relating to insurance against civil liability in respect of the use of motor vehicles, did not require the word “road” in section 145 to be construed as including a car park.
2. There was no reason to resort to any kind of broad construction such as could include a car park with the expression “road” and on the basis of the ordinary use of language the car parks could not be regarded as a “road”. The application of the statutory term “road” was a matter of fact and circumstance to be determined by the tribunal of fact properly directing itself in the law. However, although circumstances might occur where an area of land that could reasonably be described as a car park could qualify as a “road”, such circumstances would be exceptional.
3. In the Clarke case the route usable by pedestrians or even bicycles that could be identified across the car park and through a passage did not suffice to make it a “road”. In the Cutter case the Court of Appeal had erred in first identifying a “road” within a the car park, and then inconsistently treating the parking bays as integral with the “road”. Even if the carriageway was to be treated as a “road”, the bays retained their own integrity and it was while the car was in a parking bay that the incident had occurred.
David Farrer QC and Alison Hampton (instructed by Wilkin Chapman, of Grimsby) appeared for the plaintiff, Clarke; Richard Davies QC and Howard Elgot (Gosschalks, of Hull) appeared for General Accident; Camden Pratt QC and Richard Barraclough (instructed by Max Barford & Co, of Tunbridge Wells) appeared for the plaintiff, Cutter; Richard Davies QC and Charles Cory-Wright (instructed by the solicitor to Eagle Star Insurance Co Ltd) appeared for Eagle Star; Philip Sales (instructed by the Treasury Solicitor) appeared as amicus curiae.
Thomas Elliott, barrister
