England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCRTF 95/1175/C

(Mr Assistant Recorder Goodchild )

Royal Courts of Justice

Strand

London WC2

Friday, 29th November, 1996

B e f o r e:

LORD JUSTICE McCOWAN

LORD JUSTICE WAITE

LORD JUSTICE POTTER

- - - - - -

CLARKE

Respondent

- v -

KATO & OTHERS

Appellant

- - - - - -

(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

- - - - - -

MR H ELGOT (Instructed by Gosschalks DX 11902) appeared on behalf of the Appellant

MR CJ ALDERSON (Instructed by Messrs Wilkin Chapman DX 13511) appeared on behalf of the Respondent

- - - - - -

J U D G M E N T

(As approved by the Court )

- - - - - -

©Crown Copyright

Friday, 29th November, 1996

JUDGMENT

This is an appeal by the third defendant the General Accident Fire and Life Assurance Corporation PLC, recently substituted for the Motor Insurers Bureau, from the decision of Mr. Assistant Recorder Goodchild on a preliminary issue tried before him as to whether the motor accident which caused injury to the plaintiff on 15th August 1991 in a car park to the rear of a shopping precinct at Waltham Road, Grimsby, occurred on a "road" for the purposes of the Road Traffic Act 1988 (" the 1988 Act").

THE FACTS .

The car park concerned is situated behind a parade of shops which run roughly North-South and front onto a forecourt off Waltham Road, a public road containing a mix of shops and private dwellings. The main area of the car park is roughly oblong in shape, its longer (West and East) sides running parallel with the parade. The West side of the car park is separated from the rear of the parade by a high wall which is unbroken save for the entrance to a covered way ("the passageway") from the car park through the middle of the parade so as to give access from the car park to the front of the shops and the parade forecourt. Because the ground level of the shopping parade is about 3 foot higher than the car park at the rear, a gently sloping ramp has been constructed on the car park side of the high wall, to enable those who have parked their cars in the car park to gain access to the passageway entrance in order to go through to the shops. The ramp is bounded on one side by the high wall and on its open side by a substantial handrail. It is about 4 foot wide, giving a right-angled turn into the passageway itself which is just over 5 foot wide. The ramp and passageway are together designed for access by pedestrians, wheelchairs and perambulators. They are not designed for, or negotiable by, cars, though it is possible for cyclists also to use them.

The North, South and East sides of the car park are bounded by a kerb with hedge and tree borders behind.

Angled to the kerb along the West and North sides of the car park are parallel painted white lines of about a car's length, representing bays or spaces in which individual cars may park. There is no central block of bays, simply a central unmarked area which does not afford sufficient room for additional cars to be parked without obstructing the space required for cars to traverse and manoeuvre when entering or leaving their parking spaces.

The sole vehicular access to and from the car park is at the northeast corner by a short drive running from Pinfold Lane (a public road). The entrance to the drive in Pinfold Lane is clearly defined by a gateway consisting of two white posts and a metal gate, which is effectively open at all times and beside which appears a notice in large letters:

"SHOPPERS CAR PARK - FOR THE USE ONLY OF PERSONS

VISITING THIS SHOPPING CENTRE".

Apart from the message conveyed by that notice, there is nothing to prevent members of the public from using the car park for purposes quite unconnected with shopping. Equally, there is nothing to prevent pedestrians from using the car park as a short cut from Pinfold Lane and the area of housing around it to get through to Waltham Road and points West, via the ramp and passageway. Finally, there is nothing to prevent cyclists from using it for the same purpose, albeit, if done at any speed, such use would present a danger to pedestrians (whether shoppers or members of the public) also using the passageway.

It is not necessary to canvass the circumstances of the plaintiff's accident, save to say that it occurred when she was in the almost empty car park talking with friends at about 10.30pm., being en route from visiting in the area to the West of Waltham Road to her home some hundreds of yards from the Pinfold Lane entrance. Having entered the car park on foot via the passageway and down the ramp, she sat on the kerb talking to her friends some 15 feet from the bottom of the ramp, when she was struck by a car which had earlier been parked in the car park and was being driven by the first defendant, a young man who was not qualified to drive or possessed of any covering insurance. He was, however, driving within the car park with the permission and in the company of the second defendant.

The liability (if any) of the third defendant arises under S.151 of the 1988 Act which by sub-section 2 applies to judgments relating to liability required to be covered by a policy of insurance under S.145, which in turn depends upon whether or not the plaintiff's accident arose out of the use of the second defendant's car "on a road".

Section 192 of the 1988 Act defines a "road" as:

"Any highway and any other road to which the public

have access, and includes bridges over which a road

passes".

This definition has been consistently used in Road Traffic legislation since the 1920's.

So far as the meaning of the word "highway" is concerned it is well established at Common Law. The existence of a highway depends upon the establishment of a public right of passage whether on foot, on horseback or by vehicle, over the way concerned as a result of dedication or long usage. It has not been argued or suggested that the car park, ramp or passageway, separately or together, qualify as a "road" in the sense that they are a "highway". The argument before the Judge and in this court turned entirely upon whether the car park may properly be described or regarded as "any other road to which the public has access". Indeed, the matter is narrower than that, since there is no issue that this was a car park to which the public in fact had access. The question is simply one of whether or not the whole or part of the car park comes within the definition or concept of a "road" at all.

That problem has previously been broached in two car park cases decided by the Divisional Court, notably Griffin -v- Squires (1958) 1 WLR 1106 and Oxford -v- Austin (1981) RTR 416, to which I shall turn shortly. However, the most useful starting point is the Scottish case of Harrison -v- Hill (1932) JC 13, in which the Court of Justiciary applied the definition "any road to which the public have access .." to a privately constructed and maintained farm road providing access from a public highway to a farm.

In that case it was the latter part of the definition, i.e. the question and degree of public access, which was in issue. However, what was said in that context is of some relevance to the arguments in this case. In giving the leading judgment, Lord Clyde said (at p.16):

".. when the statute speaks of the public having

"access" to the road, what is meant is neither (at

one extreme) that the public has a positive right

of its own to access, nor (the other extreme) that

there exists no physical obstruction, of greater or

lesser impenetrability against physical access

by the public; but that the public actually and

legally enjoys access to it. It is, I think,

a certain state of use or possession that is pointed

to. There must be, as a 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 it must be permitted or allowed, either expressly

or implicitly, by the person or persons to whom the

road belongs ..

In arriving at these conclusions I am partly influenced by the broad consideration that, as the

statute is intended for the protection of the public,

it is natural to suppose that the statutory traffic

regulation should apply to any road on which the

public may be expected to be found. Hence the

inclusion of such private roads as the public

(generally) is, as a matter of fact, allowed to use,

and the exclusion of those which the public (generally)

cannot lawfully use at all".

Lord Sand observed:

"As may be clearly gathered from the terms of the Act

here in question, the object of the special legislation

in regard to certain prosecutions and offences was the

protection of the public. This clearly explains why

the prohibition here dealt with is not limited to public highways but extends to any road to which the

public have access. It is the public who are to be

protected, and the provisions of the Act are made to

apply to all roads on which the motorist may encounter

members of the public ... 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".

So far as the definition or concept of a "road" is concerned, it is apparent from decided cases that, to qualify as a road to which the public have access, it is not necessary that the area concerned should enjoy either the usual appearance or common appellation of a road. We have been referred to the case of Bugge -v- Taylor (1941) 1 KB 198 in which the appellant left an unlighted motor vehicle on the forecourt of a hotel which was the private property of the owners of the hotel, separated from the main carriageway of the public road for most of its length by an island public pavement with openings to the highway at both ends. There was no wall or other obstruction to prevent the public from going over the forecourt, which was crossed in various directions by members of the public on foot and was, on occasion, subject of movement over and through the forecourt by public service and other vehicles. It was held to be a road.

In Griffin -v- Squires , the defendant was acquitted before Justices of using a motor vehicle whilst not being the holder of a driving licence or having third party insurance on an open air car park owned and maintained by the local authority. All members of the public were allowed to use it at all times for the purpose of parking vehicles without payment and resorted to it for that purpose via an entrance from the main road. In addition, from one corner, there was an opening to a private footpath leading to a bowling club and council allotment gardens. Members and allotment holders going to and from the club and gardens would enter the car park from the road, traverse it, and then use the footpath for those purposes.

The Magistrates held that, although the private footpath was a "road", it was not one to which the public had access and therefore the fact that club members and allotment holders used the car park to reach the footpath did not make the car park a "road". The Justices further held that, while the car park on its own was a place to which the public had access, they were not satisfied that it was a road, because, although it had two entrances and there was room for vehicles to move from one side of the car park to the other, they were not satisfied that amounted to a line of communication for the use of foot passengers and vehicles, that being the definition of the word "road" in the Oxford Concise Dictionary.

Upholding the Justices' finding on Appeal, Lord Parker CJ stated:

"The Magistrates have found that the general public

did not habitually use the car park and the footpath

to the bowling green and the council allotments, but

only the club members and the allotment holders.

Accordingly, they came to the conclusion, with

which I entirely agree, that it is impossible to say

that this park, as part of this footpath leading to

bowling green, was a "road".

Having quoted Lord Clyde in Harrison -v- Hill , he went on:

"Everything that Lord Clyde said there applies

absolutely to the car park as part of the footpath

leading to the bowling green and allotments, and I

think the Magistrates were perfectly right".

Going on to consider the car park on its own, Lord Parker said:

"The question is whether anything else remains to

be fulfilled, in other words, is it enough that it is

a place to which the general public have access,

or must there be something which as a matter of

common sense and ordinary meaning is a road? ...

It has been said many times that it is eminently

a question of fact for the Magistrates to say

whether a certain space is a road .. I think it

was a matter for the Magistrates to decide as a matter

of fact whether this car park in the ordinary sense

could be treated as a road. It seems to me that there

must be a limitation of that sort, otherwise any place to which the general public have access could be said

to be a road within the definition .."

Agreeing, Streatfield J stated:

"I have no doubt whatever that a public car park

adjoining a public highway, there being two entrances

from the highway onto the car park, is in fact the line of communication from either entrance to and from any

point in that car park. If that was the sole test

I should have undoubtedly come to the conclusion myself

that the Magistrates were wrong; but, as it is, I have to give the proper effect to the words in the Act of

Parliament where the offence consists of the act

complained of performed upon "a road" ... Although a

car park is, in my opinion, a line of communication,

I do not think anybody in the ordinary acceptance of the word "road" would think of a car park as a road,

and if we were to hold that this was a road it would

also be a road if it was a piece of waste land by the

side of the road to which the public could resort for

picnics and nobody would call that a road either".

Diplock J agreed that the appeal should be dismissed and had nothing to add.

In Oxford -v- Austin , the defendant left his uninsured motor vehicle in a car park in which the parking spaces were marked by white lines. He was charged with the unlawful use of that vehicle without insurance. The Justices dealt with the case on the basis that, access to the car park being restricted, the car park was not a road to which the public had access. They did not separately determine whether the car park was a "road". The Divisional Court found the Justices to have been in error, both for treating the fact that the car park was privately owned as decisive of the question whether the public had access, and for failing to address themselves to the question whether, in the ordinary understanding of the word, the car park was a "road". In giving the judgment of the court, Kilner Brown J stated:

"We have been referred to a number of authorities, and in my view, the most helpful and authoritative decision is Griffin -v- Squires ... that case is sometimes cited as being an authority for saying that a car park cannot be a road. In point of fact the only observation to

that effect at p.1109 is plainly one which is obiter

by Streatfield J and does not appear anywhere in the

leading judgment of Lord Parker CJ. In any event I

would respectfully suggest that it is not correct to

say that a car park cannot be a road. There must be

many cases, and this case possibly is such a case,

where there is obviously a definable way over which

vehicles may pass which in plain common sense qualifies

as a road ...

The first question which has to be asked is whether

there is in fact in the ordinary understanding of the

word a road, that is to say, whether or not there is

a definable way between two points over which vehicles

could pass. The second question is whether or not the

public, or a section of the public, has access to that

which has the appearance of a definable way.

..in every case where there is a car park it is for

the Justices to decide as a question of fact on the

lines of all the authorities whether it is a road or

not, and then they have to go on to consider the

second limb, which is whether or not the public has

access."

Pausing there, I would observe that, while the way in which Kilner Brown J propounded the first of his two questions will in many cases afford a correct working approach to the problem of whether a car park, or part of it, may properly be regarded as a road, it is, by its reference simply to passage by vehicles, too narrow in its scope. I say that because it seems to me that the protective intention of the legislature was to include within the definition of "road" for the purposes of the Act, ways which are prima facie used by pedestrian members of the public only.

The use of the word "highways" (which is a legal term of art and itself the subject of statutory definition in S.192) makes this clear in the case of ways used by the public as of right : see Land -v- Hindhaugh 1986 RTR 271. In that case it was held in relation to a charge under S.6(1) of the RTA 1972 that, once it was established that the defendant had driven his motorcycle on a public footpath (i.e. highway), as the footpath fell within the definition of "road" contained in S.196(1) (S.192 of the RTA 1988) it was irrelevant whether the footpath was a road within the ordinary meaning of the word. However, in giving the judgment of the court, Croom-Johnson LJ also made the point that S.36(1) of the RTA 1972 (s.34 of the RTA 1988), by making it an offence to drive a motor vehicle "on any road being a footpath or bridleway", itself

"concedes that the footpaths and bridleways,

notwithstanding that motor vehicles shall not

be driven upon them, are nevertheless roads.

There is therefore a special prohibition

incorporated in S.36(1) against driving motor

vehicles upon those two kinds of road. It does

not in any way derogate from the definition in

S.196(1)".

If that is the position in relation to roads used by the public as of right, then there is every reason to suppose that the legislature intended that private roads should similarly include footpaths which the public are in fact permitted to use. Quite apart from the policy considerations summarised by Lord Sand in Harrison -v- Hill , it seems to me that the use of the words "Highways and other roads" in the definition suggests that, save for the question of public user as of right as opposed to user by de facto access, the legislative intention was that the words "highways" and "roads" should bear equivalent meanings.

In this connection, it is relevant also to note that in Griffin -v- Squires (at p.1108), Lord Parker plainly anticipated that, had the Magistrates not made a finding that only a restricted class, and not the general public, used the footpath to the bowling green (including the car park as part of that footpath), the decision might properly have gone the other way.

On the basis of those authorities, although it seems to me (as it seemed to Streatfield J in Griffin -v- Squires ) that, viewed at first blush, a car park is no more than a place or area and not a road, nonetheless, in appropriate cases, it (or part of it) may properly be regarded as a road. That will be so in any case where the circumstances justify a finding that the car park is not simply used as such, in the sense that the passage of vehicles and pedestrians is restricted to passage over the surface of the car park for the purpose of obtaining access to and from a parking place, but is used for what may colloquially called "through" traffic, so as to alter its character from that of a car park used as such, to one which is also used as, or as part of, a road. It seems to me that is an appropriate distinction, consistent with common sense, the intention of the legislature, and the authorities such as they are.

THE JUDGE'S DECISION .

The definition of a road which was adopted by the Judge for the purposes of his judgment was:

"a line of communication over which vehicles

could pass".

In adopting that definition he adapted the definition of Kilner Brown J. in Oxford -v- Austin (see above).

The Judge first stated:

"The first question which has to be asked is

whether there is in fact in the ordinary understanding

of the word a road, that is to say whether or not

there is a definable way between two points over

which vehicles could pass".

However, he then added his own gloss, thus:

"It is also, without a doubt, a line of communication

and I bear that in mind as well. So, combining the

two ... I am going to use the definition 'a line of

communication over which vehicles could pass'".

In referring to "a line of communication" the Judge was no doubt alluding to the Oxford Dictionary definition of a road as quoted by Streatfield J in Griffin -v- Squires .

He observed that there was no issue in the case that the public had unobstructed access to the car park, for reasons I have already made clear. He then noted that there was a housing estate to the West of the shopping parade and East of the main entrance to the car park a school, recreation area, other shops and a Boy Scout hut. Accordingly he found it plain that a line of communication for the public between East and West existed via the passageway, ramp and car park. The issue which concerned him was whether it could be said to be a line of communication over which vehicles could pass. Having referred to its use by persons with prams and pushchairs and children on cycles (he described it as an "ideal cycle way between two distinct highways"), he stated his conclusion as follows:

"The car park on its own, forgetting about the

alleyway, in my view, is not a road. It is not

a line of communication. But the car-park and the

alley put together does, on the facts, become a

line of communication from East to West. Looking

at the alleyway and the car-park together, given

that they form a line of communication, I then

asked myself, could vehicles use it? Accepting,

for the purposes of this definition, bicycles and

prams, or motorbikes, could be and are vehicles,

then the answer must be that this was a road

within the meaning of the Act. So, in answer to

counsels' question that has been put to me as a

preliminary issue, I hold that, yes, it was a

road".

THE ISSUES .

Mr. Elgot for the plaintiff has argued that the Judge erred in his approach to the problem.

First, he submitted that, the Judge, having held (correctly) that, without reference to the ramp and passageway, the car park could not be regarded as a road, the focus should have been upon the question of whether the ramp and passageway could be described as a road. He submitted that they could not properly be described as more than a "footpath". He said that something which is no more than a "footpath" , cannot properly be regarded as a "road" unless it is (for the purposes of the Road Traffic Act) a public right of way, relying on Lang -v- Hindhough (1986) RTR 271 at 274E - F in that respect.

Second, in support of his submission that the ramp/passageway was no more than a footpath, Mr. Elgot invited us to ignore the Judge's reference to motorcycles, there having been no evidence or suggestion of use by motorcycles. Miss Hampton concedes that is so. Mr. Elgot also asked us to ignore the Judge's description of the ramp/passageway as ideal for bicycles save by the criteria of a youthful cyclist bent on disregarding the interests of pedestrians. However, the evidence is plain that use was made of the route by cyclists as an occasional short cut. So far as the use by prams and bicycles is concerned, Mr. Elgot submitted such usage was not usage by "vehicles" in the ordinary sense of the word, and in any event was not such usage as to deprive the ramp and passageway of their character as a footpath.

Third, Mr. Elgot submitted that, in adapting for the purposes of his definition the expression "line of communication", the judge ignored the requirement of a more or less "definable way" within the car park, if it was to qualify for the description "road".

Fourth and finally, Mr. Elgot submitted that no ordinary or common sense application of the word "road" would be such as to comprehend the way along the car park, ramp and passageway. He submitted that since neither the car park on the one hand, nor the ramp and passageway on the other, could amount to a "road" within the meaning of S.192, they could not do so in combination. I am unable to accept those submissions.

In my view, the Judge was faced with a situation which gave rise to issues very similar to those in Griffin -v- Squires , with this practical difference. In that case, in support of the existence of a "road" used by foot traffic across from the car park entrance to the bowling green and allotments, the prosecutor relied unsuccessfully upon intermittent use by a special class of persons as opposed to the general public. In this case the appellant was able to rely upon regular and incontrovertible use of the ramp, passageway and car park as a pedestrian route between the hinterland lying to the East of the car park entrance and to the West of the parade of shops. That being so, it seems to me that the concern of the Judge (based no doubt on the first question as propounded by Kilner Brown J in Oxford -v- Austin ) as to whether or not use by prams and bicycles amounted to vehicular use sufficient for the route to qualify as a road, was unnecessary. Unrestricted pedestrian user, with or without such use by wheeled traffic as the Judge found to exist, was sufficient to establish a "road", provided the Judge had sufficient evidence of a definable route in relation to the pedestrian traffic.

It is true, in the latter respect, that the Judge appears to have dealt with the matter in terms of a "line of communication" from East to West without further definition. It would have been preferable if, dependent upon his findings, he had referred to a "definable route", whether consisting of the entire car park (so far as not occupied by parked cars) or some more restricted route over, but not including all, of its surface. However, I do not think that is something which is fatal to his decision.

The "through" route which the Judge contemplated was plainly one which, so far as the surface of the car park was concerned, led from the area at the base of the ramp to the car park entrance. We have before us a plan and a variety of photographs showing the scene. This was not a large municipal car park, or one of a type frequently encountered, catering for the customers of large supermarkets, or commuters at railway stations. It was not marked out in lanes with directional signs. It was a fairly small open area, marked along its western and northern edges with car spaces as I have already described. However, the route for "through" pedestrian or other traffic between the car park entrance and the foot of the ramp was readily and properly definable as all that area of the car park (and drive) north of the point at which the base of the ramp meets the surface of the car park. No doubt at any time when vehicles were parked on one or more of the spaces marked out, then the "road" as defined would be obstructed to that extent. However, that was not the position on the evening in question and, in principle, is beside the point.

In my opinion, there was clear evidence before the Judge on which he could find as he did.

I would therefore dismiss the appeal.

WAITE LJ: I agree.

McCOWAN LJ: I also agree.

ORDER: Appeal dismissed with costs.

---------oOo--------