FACTS:-

The Defendant was the owner of premises compromising a shop with forecourt and garden attached and an unpaved area in front of the garden at the side of the forecourt. Between the pavement and the highway were the pavement and the kerbstone. At the material time there was no wall or fence separating the area from the pavement. Customers were in the habit of crossing the unpaved area and forecourt to enter the Defendant’s shop but did not habitually use it.

On the night of August 23 1950, the Defendant caused his car to be left, unlighted, on the paved area, and consequently the Defendant was charged with an offence against the Road Transport Lighting Act 1927 section 1 (1).

The Road Transport Lighting Act 1927 section 1 (1) provides;

“… every vehicle shall during the hours of darkness carry –(a) two lamps, each showing to the front a white light visible from reasonable distant; (b) one lamp showing to the rear a red light visible from a reasonable distance; and every such lamp shall… be kept properly trimmed, lighted and in efficient condition… It shall be the duty of any person who causes or permits a vehicle to be on many roads during the hours of darkness to provide the vehicle with lamps in accordance with the requirements of this Act and of any regulations made thereunder.”

The learned magistrate held that the land on which the car was left was not a “road” within the meaning of the Act and dismissed the charges. The Claimant now appeals this decision in the King’s Bench Division before Chief Justice Lord Goddard, Justice Oliver and Justice Cassels.

HELD:-

Lord Goddard decided that the real issue was whether or not the unpaved ground which customers used was a “road” within the meaning of section 1 (1) of the 1927 Act

Section 15 of the Act defines “road” as “any public highway and any other road to which the public has access”

Counsel on behalf of the Claimant submitted that their Lordships should reverse the decision of the magistrate on the ground of the decision in Brugge v Taylor [1941] 1 KB 198. In Bruge a motor vehicle was left unlighted in the forecourt of a hotel. Although the forecourt was the property of the hotel, it was no way separated from the road, and the public were in the habit, not only walking over it, but also driving over it. In fact, the people at the hotel allowed it to be used as though it were part of the road. In his judgement Lord Caldecote CJ cited ([1941] 1 KB 2000) a passage from Harison v Hill, where Lord Justice- General (Lord Clyde) referring to the definition of “road” said (1932 SC (J) 16):

“it is plain from the terms of the definition, that the class of road intended is wider than the class of public road to which the public had access in virtue of a positive right belonging to the public, and flowing either from statute or prescriptive user”

Lord Caldecote CJ went on to say ([1941] 1 KB 201) that there was evidence on which the justices could find that the forecourt in the case before him was a “road” within the meaning of section 1(1) of the 1927 Act. That was the only reason given by the court for their decision and it was not laid down that a court is bound to find that a place is a road merely because it is not separated by a wall or rail from the highway.

It seemed impossible to Lord Goddard that the little unpaved forecourt, which was used only by the customers of the shop, was a “road” for the purposes of the Act of 1927. He concurred with the learned magistrate in coming to the conclusion that the piece of land was not habitually used by the public and was not a “road”. He thereafter dismissed the appeal

Both Justice Oliver and Justice Cassels agreed with the judgement.

Related posts:

1. Bugge v Taylor 1941
2. Thomas v Hooper; Thomas v Cooper [1986]