Law Report: Insurer must pay for accident in car park

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Cutter v Eagle Star Insurance Co Ltd; Court of Appeal (Lord Justice Beldam, Lord Justice Morritt, Sir John Balcombe) 22 November 1996

A multi-storey car park was a "road" within the meaning of sections 145(3)(a) and 192 of the Road Traffic Act 1988, and an accidental injury to a passenger in a car there was a risk against which the driver was required to insure himself, and in respect of which the driver's insurers were obliged to satisfy any judgment obtained against him.

The Court of Appeal allowed an appeal by the plaintiff, Stuart Richard Cutter, against a decision of Deputy Judge Kee, sitting in Tunbridge Wells County Court on 21 September 1995, who dismissed his claim against Eagle Star Insurance Co Ltd.

Eagle Star were the insurers of a driver, Mr Penniel, in whose car the plaintiff was injured. The car was parked in Great Hall multi-storey car park, Mount Pleasant Road, Tunbridge Wells. Mr Penniel had left in the car a can of lighter fuel which had leaked inflammable gas. After returning to the car and before driving off, Mr Penniel lit a cigarette, igniting the gas and causing a fire in which the plaintiff, sitting in the passenger seat, was injured.

The plaintiff claimed and was awarded damages and costs against Mr Penniel. But the judgment was not satisfied. The plaintiff therefore claimed against the insurers for the outstanding sum of pounds 15,575.54. The judge dismissed the claim on the ground that the accident had not occurred on a road.

Richard Barraclough (Max Barford & Co, Tunbridge Wells) for the plaintiff; Charles Cory-Wright (C.M. Sinclair Jenkins, Eagle Star) for the insurers.

Lord Justice Beldam said the plaintiff relied on section 151 of the 1988 Act, under which an insurer was under a duty to satisfy a judgment obtained against a person insured for third party risks in respect of a liability required to be covered by a policy of insurance under section 145. Section 145(3)(a) required that such a policy

must insure [the policy holder] in re-

spect of any liability which may be incurred by him . . . in respect of the death or bodily injury to any person . . . caused by, or arising out of, the use of the vehicle on a road . . .

Section 192 of the Act defined "road" as "any highway and any other road to which the public has access". The definition was clearly intended to include roads which were not highways but to exclude roads to which the public did not have access. Here it was conceded that if Great Hall car park was a road, then it was one to which the public had access.

Relying principally on criteria laid down by Kilner-Brown J in Oxford v Austin [1981] RTR 416, the judge considered that the question whether the car park was a road depended on whether or not there was "a definable way between two points over which vehicles could pass".

It seemed to his Lordship that too much emphasis had been placed on seeking to answer the question: "Is the car park a road?" The question would more correctly be posed by asking: "Is there within the car park a roadway?"

In this case there was within Great Hall car park a roadway, i.e. a way marked out for the passage of vehicles controlled by conventional traffic signs and markings and regularly used by members of the public seeking a car-parking space.

The risk of accidents causing injury arising out of the use of cars on this roadway was scarcely less than on any other road.

The fact that the car was being driven to or from a parking space, as opposed to using the way through the area in question as a route from one road to another, ought not to decide whether or not an injured person was paid the compensation for which he had obtained judgment.

The areas in Great Hall car park marked out for the passage and parking of vehicles were therefore within the definition of "road" in section 192, and the insurers were bound under section 151 to meet the judgment against Mr Penniel.