Judgment - Clark (A.P.) and Others v. Kato, Smith and General Accident Fire & Life Assurance Corporation PLC
Cutter v. Eagle Star Insurance

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      The question is what is the danger from which the public are to be protected. Is it the use of vehicles on roads, or is it more widely the use of vehicles? If it is the former then one is left with no guidance for a purposive construction. If the purpose of the Act is to protect persons on roads then one is still left with the problem of defining a road. Such might well be thought to be the purpose of the Act given the repeated references to roads throughout the legislation. However I am prepared to proceed on the basis that the latter view is correct. It may have some support from the terms of the title set out in the Road Traffic Act 1930 and in the heading to Part II of that Act, "Provision against Third-Party Risks arising out of the use of Motor Vehicles." The provision of insurance to cover liability for injury sustained by third parties in the same context may then be seen as a measure designed for the protection of the public from dangers arising out of the use of motor vehicles. It may also be noted that in section 34 of the Act of 1988 the driving of motor vehicles on any land elsewhere than on roads is prohibited. By giving a purposive construction to the word "road" what is meant is a strained construction, beyond the literal meaning of the word or beyond what the word would mean in ordinary usage, sufficient to satisfy that expression of the purpose of the legislation.

      It may be perfectly proper to adopt even a strained construction to enable the object and purpose of legislation to be fulfilled. But it cannot be taken to the length of applying unnatural meanings to familiar words or of so stretching the language that its former shape is transformed into something which is not only significantly different but has a name of its own. This must particularly be so where the language has no evident ambiguity or uncertainty about it. While I have recognised that there could be some exceptional cases where what can reasonably be described as a car park may also qualify as a road, it is the unusual character of such cases which would justify such a result in the application of the statutory language rather than any distortion of the language itself.

      But beyond this objection in the present context there are in my view two particular considerations which militate against any such broad approach. In the first place it has to be remembered that in many instances the purpose of the legislation is achieved by the creation of an offence. Against the employment of a broad approach to express the purpose of the Act must be put the undesirability of adopting anything beyond a strict construction of provisions which have penal consequences.

      Secondly, it is clear that on the respondents' construction the whole body of statutory provisions and regulations will be applicable to car parks. But these provisions include powers to carry out works which will constitute some invasion of the proprietor's rights in his land. The provisions of Parts I,III, and V to VIII of the Act of 1984 contain a variety of such powers. It is true that to an extent such an invasion has already been authorised by the legislation, but in so far as this can be said in respect of roads in the ordinary sense of that word that fact cannot be founded upon in relation to car parks without begging the question in the present appeals. I do not regard it as an insignificant consideration that on the respondents' construction a greater opportunity is afforded to statutory authorities to interfere with private property, even although this may be thought to be in the interests of public safety.

      I turn next to the European dimension which emerged in the submissions of the amicus curiae.

      The adoption of a construction which departs boldly from the ordinary meaning of the language of the statute is, however, particularly appropriate where the validity of legislation has to be tested against the provisions of European law. In that context it is proper to strain to give effect to the design and purpose behind the legislation, and to give weight to the spirit rather than the letter. In this way the Court may implement the requirement formulated by the European Court of Justice in Marleasing SA v. La Comercial Internacional de Alimentacion SA (Case C-106/89) [1990] E.C.R. 1-4135 where, at paragraph 8 of the judgment, it was stated:

     "It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty."

But even in this context the exercise must still be one of construction and it should not exceed the limits of what is reasonable.

      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 the present two cases the accident occurred within Great Britain. There is no suggestion that either vehicle was travelling between any member States. I think that it may also be assumed that in each case the territory in which the vehicle was normally based was Great Britain, that is to say, in accordance with the definition contained in Article 1 of the First Directive, that the vehicle in each case was registered in this country. The question then arises whether these Directives, or any of them, require 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.

      Having considered the terms of the Directives I am not persuaded that any of them impose such an obligation. The basic purpose as expressed in the first preamble to the First Directive is to bring about the free movement of goods and persons with a view to the creation of a common market. The following preambles point to the restraints on free movement caused by disparities in national requirements for insurance and the consequential checks and controls at frontiers. The text later states:

     "Whereas the abolition of checks on green cards for vehicles normally based in a member state entering the territory of another member state can be effected by means of an agreement between the six insurers' bureaux, whereby each national bureau would guarantee compensation in accordance with the provisions of national law in respect of any loss or injury giving entitlement to compensation caused in its territory by one of those vehicles, whether or not insured.

     "Whereas such a guarantee agreement presupposes that all community motor vehicles travelling in community territory are covered by insurance; whereas the national law of each member state should, therefore, provide for the compulsory insurance of vehicles against civil liability, the insurance to be valid throughout community territory . . . ."

Article 3 of the First Directive provides:

     "(1) Each member State shall . . . take all appropriate measures to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance. The extent of the liability covered and the terms and conditions of the cover shall be determined on the basis of these measures.

     (2) Each member State shall take all appropriate measures to ensure that the contract of insurance also covers:

     - according to the law in force in other member States, any loss or injury which is caused in the territory of those States

     - any loss or injury suffered by nationals of member States during a direct journey between two territories in which the Treaty establishing the European Economic Community is in force, if there is no national insurers' bureau responsible for the territory which is being crossed; in that case, the loss or injury shall be covered in accordance with the internal laws on compulsory insurance in force in the member state in whose territory the vehicle is normally based."

      It seems to me that while in this Directive it is certainly required that there be in each country an insurance against civil liability in respect of the use of motor vehicles, recognition is being paid to the fact that there may be differences in the precise cover which national laws may impose in the different member States. The First Directive was implemented by the Motor Vehicles (Compulsory Insurance) (No.2) Regulations 1973 (SI 1973 No.2143), introducing amendments to the then recent consolidation of road traffic legislation in the Road Traffic Act 1972. One of these was the adding of the words "in Great Britain" after the words "on a road" in section 145(3), the forerunner of section 145(3)(a) of the Act of 1988. It also introduced what came to be section 145(3)(b) of the Act of 1988, adding the requirement that the insurance must be in respect of any liability incurred in respect of the use of a vehicle in the territory of each of the member states of the Community, excluding Great Britain and Gibraltar, according to the law on compulsory motor insurance of the state where the liability might be incurred. It seems to me that the implementing legislation was entitled to restrict the cover in respect of the use of vehicles on roads to roads in Great Britain and correct to extend the requirements so as to cover liabilities incurred in respect of the use of the vehicle in other member states according to the local law on compulsory insurance in respect of the use of the vehicle in the other member states. Thus while the restriction to the use on roads was retained for Great Britain, the possibility was recognised that there might be a different scope of the requirement for insurance in other states.

      The Second Directive builds on the first. The Second Directive was implemented, so far as was considered to be necessary, by the Motor Vehicles (Compulsory Insurance) Regulations 1987 (SI 1987 No.2171), which, among other provisions, extended the scope of the insurance cover required under section 145(3)(a) to include damage to property. But I do not find further guidance from the Second Directive for the purposes of the present problem.

      The Third Directive seeks further to supplement the earlier ones. It affirms in Article 1 that the insurance referred to in Article 3(1) of the First Directive included liability to passengers. Article 2 states:

     "Member States shall take the necessary steps to ensure that all compulsory insurance policies against civil liability arising out of the use of vehicles:

     - cover, on the basis of a single premium, the entire territory of the community, and

     - guarantee, on the basis of the same single premium, in each member State, the cover required by its law or the cover required by the law of the member State where the vehicle is normally based when that cover is higher."

      Here again is a recognition of the possibility of difference in the precise extent of the cover between the laws of individual member States. The scope or extent of the cover required in different member States may be greater or smaller than in others, but the policy must secure that the greater cover is available in respect of those States where the greater cover is required by its domestic law. That seems to me to have been recognised in the implementation of the Directive. The Third Directive was implemented so far as was considered necessary by the Motor Vehicles (Compulsory Insurance) Regulations 1992 (SI 1992 No.3036). As Mr. Sales has pointed out this Statutory Instrument is later in date than the dates of the incidents which have given rise to the present claims. But I consider that it is right to look at it. By Article 2(1) of those Regulations a new paragraph (aa) was added to section 145(3) of the Act of 1988. This provision required that in the case of a vehicle normally based in the territory of another member State the insurance must cover any civil liability which may be incurred by the insured:

     ". . . as a result of an event related to the use of the vehicle in Great Britain, if,-

     (i) according to the law of that territory, he or they would be required to be insured in respect of a civil liability which would arise under that law as a result of that event if the place where the vehicle was used when the event occurred were in that territory, and

     (ii) the cover required by that law would be higher than that required by Paragraph (a) above . . . ."

      By Article 2(2) of the Regulations amendment was made to section 145(3)(b) so as to relate that provision to vehicles normally based in Great Britain and to secure that the cover will meet the requirements of the law of the State where the event giving rise to the liability occurred, or, if it would give higher cover, the law which would be applicable if that event had occurred in Great Britain.

      The cover is required to be available for a vehicle registered in another member State than Great Britain where the liability arises as a result of "an event related to the use of the vehicle in Great Britain." So that would cover incidents occurring on or off a road. But this is to apply only if the law of the other member State requires insurance for a civil liability "if the place where the vehicle was used" had been in that other member state and the cover required in that other state was higher than the cover required under section 145(3)(a). Even if the directives are to be understood as requiring insurance cover in respect of vehicles for events occurring in other places than on roads that requirement seems to me to have been satisfied by the amendments to section 145 in so far as the provisions of that section relate to the movement within Great Britain of vehicles based in other member states and the movement in other member states of vehicles based in Great Britain. None of that however touches upon the validity of section 145(3)(a). Nor is it of consequence that the enforcement provision in section 143 is limited to the use of a motor vehicle on a road.

      Stress was placed on the reference to "the entire territory" in Article 2 of the Third Directive as an indication of an intention to secure cover against liability wherever an accident might occur, whether on or off a road. But the reference is to the entire territory of the Community, not of each member State, and in my view the intention is simply to secure that each policy of insurance shall be effective to cover accidents in all the Member States comprised in the Community, and not just some of them. The expression "Territory in which the vehicle is normally based" is defined in Article 1 of the First Directive in terms which suggest that there also the word "territory" is intended to have a political rather than a geographical connotation. In connection with the sufficiency of the implementing legislation in Great Britain it appears that vehicle insurance has been the subject of discussion with the Commission and that no action has been taken either further to amend the British legislation or to challenge its terms.

      I am not persuaded that in respect of the particular question which has arisen in the present cases the Directives require that the word "road" in section 145 should be construed as including a car park, or indeed as including any place whatsoever where a vehicle might be used. Indeed it might be that while the language of the directives is of "the use of vehicles" it is with travel and movement between states that they are dealing and that they should be taken to be concerned simply with the use of vehicles on a road, which is the usual place for a vehicle to be used. Thus it may be that the addition of the words "on a road" in section 145(3)(a) could be consistent with the universal intention of the directives in their application to traffic between member states. Indeed it may be noticed that Article 5 of the Third Directive refers expressly to parties involved in "a road traffic accident." The context there is the necessity of identifying promptly the insurance company covering the liability. It would be curious if that provision was meant to exclude accidents occurring elsewhere than on roads.

      It was suggested that if the Directives did require a broad construction then it might be that this particular construction could be restricted to the use of the word in section 145, leaving it to be construed more narrowly elsewhere in the legislation. But the word "road" runs through the whole of the legislation and in my view it would be going beyond the bounds of legitimate construction to introduce a special meaning for the word in section 145 and leave the same word to have a different meaning wherever else it occurs. This would not only run counter to the usual presumption that a word should bear the same meaning throughout the same Act but would be a quite extraordinary course where the word is so frequently used in other sections of the Act. Furthermore, while it may be appropriate to add words by way of modification of the meaning of a statutory expression in order to find a construction consistent with European law, as was done in Litster v. Forth Dry Dock and Engineering Co. Ltd [1990] 1 A.C. 546, it would in my view be going beyond the judicial task of construction to add to the word "road" the words "or in any public place", in circumstances where Parliament has expressly used that phrase in the context of other particular sections of the Act but has refrained from doing so in section 145.

      Accordingly I see no necessity to resort to any kind of broad construction such as could include a car park within the expression "road". Indeed on the contrary there appear to be some troublesome consequences if such an approach was adopted. Two examples may be mentioned. One is that there is at least a serious doubt whether a local authority could lawfully charge for parking in an off-street car park. The point here relates to section 35(1)(iii) of the Act of 1984 together with the definition of "off-street parking place" in section 142 of that Act. The former section allows for charges to be paid where an off-street park is being used. But under the definition such a park has to be one on land which does not form part of a road. It seems that if the respondents are correct that a car park is a road the section enabling charges to be made will not be available. An attempt was made in argument to distinguish between the provision of a car park and its existence thereafter, so as to enable it, after construction, to qualify for the purposes of section 35(1)(iii). But such attempts to overcome the problem, while commendable for their ingenuity, seem to me to be lacking in substance and I have not been persuaded that a real difficulty may not arise here on the respondents' approach. The other example is the application of the Road Vehicles Licensing Regulations 1989 (SI 1989 No. 1796). These were made under section 41 of the Act of 1988 and the word "road" in the regulations must bear the meaning which it has in that Act. If a car park is, as the respondents contend, a road it looks from the regulations as if vehicles parked in car parks would require to keep their lights lit from sunset to sunrise, which seems at the least somewhat surprising. Again there may be room for argument about the application of the regulation, but no satisfactory solution was forthcoming at the hearing and it is enough to find that there is at least a problem here.

      It was suggested in argument that various provisions of the legislation could with advantage be made to apply to car parks. It was, for example, pointed out that under section 163 of the Act of 1988 it is only on a road that a driver is required to stop on being requested to do so by a constable in uniform. But it is hard to believe that the fact that the provision does not apply within a car park gives rise in practice to any serious problem. In the various other sections to which attention was drawn there may or may not be good reason to extend their application to car parks. But all of that is matter of policy and not matter to be canvassed or determined in the present appeals. Despite the detailed and diligent investigations which have been made I remain uneasy that situations could be found within the complex collection of statutory provisions regarding road traffic where the adoption of the broad construction for which the respondents contend would lead to difficulties if not absurdities. As appears from paragraph 8.7 of their Report the North Committee was conscious of the difficulties of extending the whole Act, for example to conduct in any public place. In relation to the legislation before us, if it is thought that an extension of the application of the Act, or of any part of it, is required, that must, in my view, be matter for Parliament to achieve.

      Turning then finally to the circumstances of the present appeals and the particular places where the respective incidents occurred, I consider that in neither case did the use of the car occur on a road. If one has recourse to the ordinary use of language I do not consider that either of these car parks would be regarded as a road or as a part of a road. They seem on the contrary to be places to which a road may lead. They are not places designed or dedicated for the passage of vehicles. Neither in character nor function do either of the car parks in the present appeals readily qualify as roads. The open area in the case of Clarke does not seem like what one usually regards as a road. More strikingly the six-storey structure in the case of Cutter is in character even less like a road. In each case the function of the place was for the parking of vehicles. Nor does it seem to me to accord with the ordinary use of language to describe the passage and the car park in the case of Clarke as constituting a road. While a route useable by pedestrians or even bicycles may be identified across the park and through the passage it seems to me that cannot suffice to make the car park a road.

      The application of the statutory term "road" comes to be a matter of fact and circumstance to be determined by the tribunal of fact properly directing itself in the law. In the case of Clarke the judge held that the park taken by itself was not a road. I think that was correct and that finding should be respected. Where he erred, and where the Court of Appeal also went astray, was to take account of the passage. The character and the function of the car park does not in my view change even although one can drive a motor cycle, or push a perambulator through the passage in order to enter or leave the park. Even if the passage was a road that does not mean that the park becomes a road. In the case of Cutter the judge took the view that the multi-storey park was not a road. I find no error in his approach and I would respect that decision as a finding in fact. It seems to me that the Court of Appeal fell into the trap to which I have earlier referred of first identifying a road within the park, thereby identifying two things, the road and the park, and then, inconsistently, treating the parking bays as integral with the road. Even if the carriageway should be treated as a road, the bays must retain their own integrity and it was while the car was in a parking bay, not on the carriageway, that the incident occurred. One cannot but feel sympathy for the unfortunate victims of these two accidents but it must be for the Legislature to decide as matter of policy whether a remedy should be provided in such cases as these, and more particularly it must be for the Legislature to decide, if an alteration of the law is to be made, precisely how that alteration ought to be achieved.

      I would allow both appeals. In the case of Clarke paragraph 1 of the order of Mr. Assistant Recorder Goodchild of 20 July 1995 should be reversed and the preliminary issue should be determined in favour of the third defendant. In the case of Cutter the order of His Honour Deputy Judge Kee of 21 September 1995 should be restored.


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