Clarke v Kato; Sub Nom. Clarke v General Accident Fire and Life Assurance Corp PLC; Cutter v Eagle Star Insurance Co Ltd [1998]

FACTS:-

The incident occurred on 15 August 1991 and involved Ellen Clarke who was sitting on a kerb at the side of a car park in Grimsby talking to some friends.  She was struck by a car which was driven by Paul Kato, who was not insured to drive and did not possess any covering insurance.  Paul Kato was with Jarred Smith who had allowed him to drive the car.

The car 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 car park along the west and north sides to indicate particular car parking spaces.  There was a vehicular access by means of a short drive at the north east corner leading from a public road.  The western side of the car park was separated from the rear of the parade by the high wall.  Access from the car park to the parade could be obtained by means of a covered passage though an opening in the wall.  The opening which was higher than the level of the car park was reached from the car park by a ramp which extended alongside the wall.  The sides of the car park were mostly bound by a kerb and it was while Ellen Clarke was sitting on the kerb on the western side that she was struck and injured by the car, driven by Kato, which had been parked in the car park.

In this case the injured party did not have a practical prospect of recovery from the driver.  The respondent had brought an action against Kato, Smith and the MIB for personal injury and consequential loss.  The General Accident Fire and Life Assurance Corporation plc was later substituted as the third defendant in place of the bureau.

The Court of Appeal dismissed the appeal by the Motor Insurers’ Bureau from the County Court.  The preliminary issue was whether the car park at the rear of the shopping precinct, where the respondent had been injured was a road within section 192 of the Road Traffic Act 1988.  Lord Justice Potter found that an unrestricted pedestrian user with or without such use by wheeled traffic was sufficient to establish a road provided there was sufficient evidence of a definable route in relation to the pedestrian traffic.  The Court of Appeal dismissed the appeal and held that the respective car was being used on a road.

The Insurance companies appealed and the case was referred to the House of Lords.

HELD:-

Lord Browne Wilkinson, Lord Goff of Chieveley, Lord Slynn of Hadley, and Lord Steyn all agreed with Lord Clyde and they allowed both appeals.

Lord Clyde discussed in his judgement the construction and the application of the word ‘road’ in section 145(3)(a) of the Road Traffic Act 1988.  The word ‘road’ is defined in section 192 and it means ‘any highway and any other road to which the public have access..’

The application of the word ‘road’ was considered as a matter of fact and circumstance.

Lord Clyde agreed with the County Court judge in that the car park taken by itself was not a road although found the Court of Appeal were wrong to take account of the passage.  Lord Clyde found that the character and the function of the car park did not change although one can drive a motor cycle or push a pram through the passage in order to enter or leave the car park.  Even if the passage was a road it did not mean the car park became a road.  Lord Clyde concluded it was for the legislature to decide as a matter of policy whether a remedy should be provided in these cases.

When considering the definition of ‘road’ European law was considered.

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 this case the accident occurred within Great Britain. There was no suggestion that either vehicle was traveling between any member States.  The court questioned whether the Directives, or any of them, required 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.  The terms of the Directives were considered and Lord Clyde was not persuaded that any of them imposed such an obligation.

The appeal was allowed.  The House of Lords held that the decision in paragraph 1 of the order of Mr. Assistant Recorder of Goodchild of 20 July 1995 should be reversed and the preliminary issue was determined in favour of the third defendant.

Related posts:

1. Cleland v London General Insurance Co Ltd [1935]
2. Fire, Auto and Marine Insurance Co Ltd v Greene [1964]
3. Thomas v Dando [1951]
4. Griffin v Squires [1958]
5. Herbert v Railway Passengers Assurance Co [1938]