Tuesday Law Report: Accident in car park was not on a `road'

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Louise Thomas

Editor

ON THE true construction of section 145(3)(a) of the Road Traffic Act 1988, a car park is not a "road".

The House of Lords allowed the conjoined appeals of two insurance companies against decisions by the Court of Appeal that they were liable under section 151 of the Road Traffic Act 1988 in actions brought by plaintiffs who had each been injured in an incident involving a motor car which had occurred in a car park.

In the first case the plaintiff had been struck by a car whilst sitting on a kerb at the side of a car park. In the second case, the plaintiff, who was sitting in a car parked in a car park, had suffered burns when gas which had leaked from a can of lighter fuel had been accidentally ignited by the driver.

In neither case had the plaintiff had a practical pros-pect of recovery from the driver, the driver in the first case being uninsured and the driver in the second case having forfeited his right to an indemnity under his insurance policy. The construction and application of the word "road" in section 145(3)(a) of the Road Traffic Act 1988, and the question whether the respective insurance companies were liable under section 151 of the Act, had therefore arisen.

David Farrer QC and Alison W. Hampton (Wilkin Chapman, Grimsby) for the plaintiff in the first appeal; Richard Davies QC and Howard Elgot (Gosschalks, Hull) for the defendant in the first appeal; Richard Camden Pratt QC and Richard Barraclough (Max Barford & Co, Tunbridge Wells) for the plaintiff in the second appeal; Richard Davies QC and Charles Cory-Wright (Group Legal Dept, Eagle Star Insurance Co) for the defendant in the second appeal; Philip Sales as amicus curiae.

Lord Clyde said that whether a particular area was or was not a road was a question of fact. The distinction between a road and a car park which was reflected in the ordinary use of words was reinforced by a consideration of the language of the legislation, the distinction between road and a parking place being found in section 25 of the 1988 Act, as it had been in section 29(2) of the Road Traffic Act 1930, and also in section 68 of the Public Health Act 1925, and in sections 142 and 57(1)(b) of the Road Traffic Regulation Act 1984.

Moreover, the legislation was in certain sections, namely in section 15(1) of the Road Traffic Act 1930 and sections 1 and 2 of the Road Traffic Act 1991, expressly made to apply not simply to "a road" but to "a road or other public place".

That express addition of the words "or other public place" seemed 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" stood alone it bore its ordinary meaning and was not to be extended to public places such as car parks.

The adoption of a construction which departed boldly from the ordinary meaning of the language of the statute was, however, particularly appropriate where the validity of legislation had to be tested against the provisions of European law.

Nevertheless, in rest of the particular question which had arisen in the instant cases, the word "road" in section 145 was not required by the First Council Directive (72/166/EEC of 24 April 1972), by the Second Council Directive (84/5/EEC of 30 December 1983, or by the Third Council Directive (90/232/EEC of 14 May 1990) to be construed as including a car park, or as including any place whatsoever where a vehicle might be used.

There was, accordingly, no necessity to resort to any kind of broad construction such as could include a car park within the expression "road".