England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF ASSISTANT RECORDER RYDER QC
(Liverpool County Court)

		Royal Courts of Justice Strand London WC2 Friday, 12th January 2001

1. LORD JUSTICE PETER GIBSON: At 7.10 pm on the evening of 4th May 1995 the claimant Alison Inman was sitting on the grass in Everton Park, Liverpool, 3.5 metres below the top of a grassy bank. She had her 2-year-old daughter with her. She was sitting with her back to the slope. The bank lay between a metalled path and some games pitches. Her partner and her 6-year-old son were playing football nearby. That peaceful scene was shattered by what happened next.
2. The first defendant, Edward Kenny, then aged 14 and uninsured, rode a friend's motor cycle along the metalled path to a Y junction in front of the bank. He had built up speed to some 30 to 35 miles per hour. He then left that path, rode onto the grass through some trees up the slight incline to the top of the bank - a distance of 11 metres from for the metalled path - and took off with both wheels of the motor cycle in the air. He landed 8 metres further on. There he and the motor cycle impacted with Ms Inman, causing her serious injuries. He was not aware of Ms Inman's presence until it was too late to avoid hitting her.
3. Ms Inman commenced proceedings against Mr Kenny on 23rd April 1998 in the Liverpool County Court, claiming damages for the injuries caused by his negligence. Judgment was obtained against him on 17th July 1998. Because he was not insured the Motor Insurers Bureau ("the MIB") was joined as the second defendant. The MIB's basic obligation set out in clause 2 (1) of the Uninsured Drivers Agreement 1998 is to satisfy any unpaid judgment in respect of "any relevant liability" in respect of which judgment is obtained against a person whether or not that person is covered by a contract of insurance. "Relevant liability" is defined by the Agreement as "a liability in respect of which a policy of insurance must insure a person in order to comply with Part VI of the Road Traffic Act 1992". The reference to Part VI of the 1972 Act must now be read as a reference to Part VI of the Road Traffic Act 1988.
4. Section 143 of the 1988 Act provides that a criminal offence is committed if a person uses a motor vehicle on a road without there being a policy of insurance in force complying with the requirements of Part VI.
5. Section 145 in Part VI of the 1988 Act sets out the required conditions to be satisfied if a policy of insurance is to comply with the requirements. They include, in subsection (3), that -

" ..... the policy -

(a) must insure such person, persons or classes of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of or bodily injury to any person or damage to property caused by, or arising out of, the use of the vehicle on a road in Great Britain ..... "

6. By section 192 "road" is defined as meaning any highway and any other road to which the public has access.
7. On 10th June 1999 District Judge Gee ordered the trial of a preliminary issue as to whether the accident occurred as a result of the use of a motor cycle on the road within the meaning of the 1988 Act. That issue was tried before Mr Assistant Recorder Ryder QC.
8. In his judgment on 10th April 2000 the Recorder referred to the speech of Lord Clyde in Cutter v Eagle Star Insurance Company Ltd [1998] 4 All ER 417. The question in Cutter was whether a car park, separated from a public road by a short drive, was a road for the purposes of the 1988 Act such that liability to the claimant in respect of injury suffered through being struck by a car when the plaintiff was at the side of the car park was liability caused by or arising out of the use of a vehicle on a road within the meaning of section 145 (3) (a).
9. Lord Clyde, giving the only reasoned speech in the House of Lords, referred at page 422 to the statutory definition in section 192 and pointed out that the consideration of access by the public only arose if the place in question was a road. He said that some guidance should be found by considering the road's physical character and the function which it existed to serve. He said at pages 422 J to 423 A:

"One obvious feature of a road as commonly understood is that its physical limits are defined or at least definable. It should always be possible to ascertain the sides of a road or to have them ascertained. Its location should be identifiable as a route or way."

10. On the road's function, Lord Clyde said at page 423 C:

"Essentially a road serves as a means of access. It leads from one place to another and constitutes a route whereby travellers may move conveniently between the places to which and from which it leads. It is thus a defined or at least a definable way intended to enable those who pass over it to reach a destination. Its precise extent will require to be a matter of detailed decision as matter of fact in the particular circumstances."

11. It was argued before the House of Lords that a wider meaning should be given to the term "a road" as a result of 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: the First Council Directive (EEC) 72/166 of 24th April 1972, the Second Council Directive (EEC) 84/5 on 30th December 1983 and the Third Council Directive (EEC) 90/232 of 14th May 1990.
12. Lord Clyde posed the question at page 426 G whether those directives or any of them required the United Kingdom to legislate in order to secure that insurance protection was available for the victims of accidents which occur in Great Britain through the use of a motor vehicle normally based in Great Britain when that accident did not occur on a road. Lord Clyde accepted that it was proper to strain to give effect to the design and purpose behind legislation when it was implementing European obligations. He considered the three directives and the regulations which were designed to implement them. But he said at page 429 E that he was not persuaded that the directives require that the word "road" in section 145 should be construed as including any place whatsoever where a vehicle might be used. He held that neither in character nor function did the car park qualify as a road. He said at page 431 B:

"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."

13. A little later at page 431 E he said:

"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."

14. The Recorder said that there were three issues before him. The first was whether the ground over which Mr Kenny drove between leaving the metalled path and the take-off point was a road. I shall call that stretch of 11 metres "the grassy bank path". The Recorder found in relation to the physical character of the grassy bank path that it was a defined path in that it was a depression in the grass. It had marked ascertainable edges and led from the junction of the metalled path to the top of the bank and in relation to its function that it did not have any function as a road, the only use to which it may have been put being as a take-off ramp. The Recorder therefore held that it was not a road. I have to say that it seems to me that the Recorder was perhaps generous to Ms Inman in holding that the grassy bank path had a definable or defined edge. But there is no cross appeal in relation to this point, and I need say no more about that aspect.
15. The second issue was whether the metalled path was a road. The Recorder answered that unequivocally in the affirmative.
16. The third issue was whether the accident arose out of the use of a vehicle on a road. The Recorder repeated that the grassy bank path was not a road and said that in relation to the use of that path the answer must be no. Further, he said the accident did not arise out of the use of a motor vehicle on the metalled path. He pointed to the evidence that Mr Kenny had deliberately decided to leave the metalled path and rode on up the grassy bank. The judge said that the position was not as if Mr Kenny had lost control at the point where he left the metalled path and ascended up the bank. The connection, he said, between the metalled path and the accident was too remote to constitute a causal connection sufficient to establish "arising out of the use of [a motor cycle] on a road".
17. The Recorder accordingly answered the preliminary issue in the negative, that is to say, that the accident did not occur as a result of the use of a motor cycle on a road. He refused leave to appeal. But on an oral application to the High Court made by Ms Inman for permission to appeal, Mr Justice Penry-Davey on 3rd July 2000 gave permission to appeal out of time and ordered the transfer of the appeal to this Court pursuant to Civil Procedure Rule 52.14 on the basis that the appeal raised an important point of principle. Permission to appeal was given by that judge because of certain submissions advanced for Ms Inman based on some regulations amending sections 143 and 145 of the 1988 Act and the explanatory note thereto. I will come back to them a little later.
18. Mr Penry-Davey said that he had been referred to the Access to Justice Act 1999 (Destination of Appeals) Order 2000 ("the Destination Order"). He appears to have been of the view that the decision on the preliminary issue was not a final decision. That term is defined in paragraph 1 (2) (c) of the Destination Order as a decision of a court that would finally determine, subject to any possible appeal or detailed assessment of costs, the entire proceedings whichever way the court decided the issues before it. The term is given an extended meaning by paragraph 1 (3) which reads:

"A decision of a court shall be treated as a final decision where it -

(a) .....

(b) would, if made at the conclusion of that hearing or trial, be a final decision under paragraph (2) (c)."

19. We are told by Mr Dable, who appears for Ms Inman, that the Civil Appeals Office, when approached about an appeal, had insisted that the matter should be considered by the High Court. With respect to those who were of that view and to Mr Justice Penry-Davey, I am of the opinion that the decision on the preliminary issue was a final decision. The decision of the Recorder meant that the MIB was not liable. If the Recorder had decided the issue the other way the MIB was liable. Nothing further needed to be determined on that part of the claim against the MIB. In Tanfern Limited v Cameron MacDonald [2000] 1 WLR 1311 at page 1315 at paragraph 17 Lord Justice Brooke (with whom Lord Woolf MR and I agreed) referred to paragraph 1 (3) of the Destination Order and said:

"This means that if a judge makes a final decision on any aspect of a claim, such as limitation, or on part of a claim which has been directed to be heard separately, this is a final decision within the meaning of this provision."

20. This is a claim which the Recorder certified as being allocated to the multi-track and, the Recorder having refused permission to appeal, it follows that the application for permission to appeal out of time should have been made to this Court and not to the High Court (see paragraph 2A 2 (a) of the Part 52 Practice Direction).
21. It also follows that what is before us today is an application for permission to appeal out of time. We indicated at the start of this hearing that if we were satisfied that it was an appropriate case for permission to be given we would hear the appeal. Ms Inman should have filed and served her appellant's notice within 14 days of the Recorder's decision on 10th April. One can say that now,although at the time of the decision 28 days would have been the period applicable. But the appellant's notice being filed after 2nd May, Part 52 and its Practice Direction are the applicable provisions. That means that only 14 days are permitted for filing an appellant's notice. However, the delay is explained by the fact that Ms Inman was unable to pursue her appeal until legal aid was granted on 5th May 2000. The delay is short. For my part I would allow an extension of time if I were minded to grant permission.
22. I turn then to the substance of the proposed appeal. Mr Dable submits that as the Recorder found that (a) Mr Kenny had used the metalled path as a run up to build up speed, (b) Mr Kenny left the metalled path and used the grassy bank path as a ramp for take off, (c) Mr Kenny, having done that, was committed to his course, and (d) Mr Kenny severely injured Ms Inman no more than 19 metres from the metalled path, the Recorder was wrong in law to hold that there was insufficient causal connection between the use of the road which was the metalled path and Ms Inman's injury.
23. I am not able to accept this submission. First, Mr Dable does not state the Recorder's finding correctly in that submission. True it is that Mr Kenny's evidence, noted by the Recorder, was that he could not have braked on the grass and was committed to his course once he had left the metalled path, but the Recorder makes no finding that he accepted that part of Mr Kenny's evidence. In my judgment, he was right not to do so. What the Recorder accepted was that Mr Kenny used the metalled path to get up speed, and rode up the grass bank to the top to try to leap off and see how far he could fly through the air. It is far from obvious that Mr Kenny was so committed to the particular course which he took once he left the metalled path that he could not have ceased to use the accelerator as soon as he left the metalled path, that he could not have braked even gently or that he could not have steered the motor cycle to a different point to the left or right, or that instead of trying to leap off so as to fly through the air with both wheels in the air he could not have driven the motor cycle down the bank without taking off.
24. The Recorder is specific in finding that Mr Kenny did not lose control. On the Recorder's findings of fact Mr Kenny chose to ride the motor cycle after leaving the metalled path, in the way which he did. In other words, it was not the use of the motor cycle on the metalled path that inevitably caused the accident but what Mr Kenny chose to do once he left that metalled path. Of course, the accident would not have happened but for Mr Kenny's use of the metalled path to get up speed. However, the "but for" test is not sufficient, in my judgment, to establish causation. But for the use of the public road the driver of the car in Cutter would not have caused the injury. But that did not mean that the accident arose out of the use of the car on a road. (See also Romford Ice Cold Storage Company Ltd v Lister [1956] 2 QB 180 at 204 per Lord Justice Birkett and at page 211 per Lord Justice Romer.)
25. I see no arguable basis for interfering with the Recorder's conclusion of fact that the grassy bank path was not a road and that the injury did not arise out of the use of the motor cycle on a road.
26. Mr Dable next submits that the Recorder erred in failing to construe Section 145 (3) of the 1988 Act in compliance with the three directives to which reference was made in Cutter. Deploying a new argument not raised below, he says that the error was made apparent by the Motor Vehicles (Compulsory Insurance) Regulations 2000 which amended the 1988 Act so that in section 145 (3) after "road" there should be inserted the words "or other public place". But those regulations came into force on 3rd April 2000 and, not being retrospective, have no application to the position on 4th May 1995, the date of the accident. Mr Dable however submits that the Regulations provide guidance to this Court which should be taken into account when construing Section 145 (3). He points out that in Cutter Lord Clyde referred to some regulations which came into force after the incidents which gave rise to the claims in that case occurred. Mr Dable is not able to point to anything in the Regulations themselves which help him to establish that "road" in Section 145 (3) should be construed more widely. But he relies on the explanatory note to the Regulations which states that it was for the purpose of complying with the directives that the Regulations amended the 1988 Act by extending the insurance requirement to the use of vehicles in public places other than roads. He points to the fact that the power under which the Regulations were made was expressed to be Section 2 (2) of the European Communities Act 1972 by which directives and other community obligations can be given effect in United Kingdom law. Mr Dable says that the Regulations confirm the interpretation which should have been placed upon the 1988 Act in order to comply with European law. He says that the House of Lords in Cutter erred in its construction of the Act and in what it said that the directives required the United Kingdom to do.
27. I do not think that this Court can properly reach the conclusion which Mr Dable urges on us. The explanatory note to the Regulations is no part of them. It has no binding or operative effect. It is no more than an expression of opinion held in the government department responsible for the Regulations.
28. Lord Clyde in Cutter considered expressly whether the directives required a broader meaning to be given to "road" than the ordinary meaning of that word. He is unambiguous in his conclusion that the directives did not so require. That being the case, the interpretation placed by the House of Lords on the meaning of "road" in Section 145 (3) is binding on this Court and I cannot see how the Regulations or the explanatory note to them can alter that conclusion.
29. As Mr O'Brien QC, appearing with Mr McKeon for the MIB, pointed out by reference to the decision of the European Court of Justice in Arcaro [1996] ECR 1-4705, even if a directive has not been implemented in a member state it is not possible to say that a criminal offence has been committed by reference to what the directive requires.
30. Mr Dable sought to argue that there is a difference between Section 143 and Section 145 and that Section 145 (3) could be interpreted more broadly so as to include within the meaning of "road" any other public place, while leaving Section 143 unaffected. In my judgment, that is an impossible construction, given the close and deliberate linking between the conditions set out in Section 145 of a policy of insurance required if a driver is not to commit a criminal offence and the criminal offence specified in section 143. In my judgment therefore this argument cannot succeed.
31. It is impossible not to feel the greatest sympathy with Ms Inman, the innocent victim of appallingly reckless and inconsiderate behaviour by Mr Kenny in a public park. But I cannot let that sympathy distort the position in law. For the reasons which I have endeavoured to express, the Recorder was correct in his decision. The Regulations which have been brought into effect in April 2000 do what Lord Clyde indicated should be done, that is to say, they alter the law by extending the remedy to be provided to an innocent victim who has been caused injury by an uninsured driver of a motor vehicle in a public place other than a road; but they do not do so retrospectively. Therefore, the Regulations cannot assist Ms Inman.
32. In my judgment, the Recorder's decision being plainly right, I for my part would refuse permission to appeal.
33. LORD JUSTICE CHADWICK: In the conjoined appeals in Cutter v Eagle Star Insurance Company Ltd and Clarke v Kato and Others [1998] 4 All E R the House of Lords had to consider the true interpretation of Section 145 (3) of the Road Traffic Act 1988 in the light of the First, Second and Third Directives on the Approximation of the Laws of Member States relating to Insurance against Civil Liability in realtion to the use use of motor vehicles. The House decided that the word "road" in that subsection was not to be construed as if the words used had been "road or other public place". The judgment of the House was handed down on 22nd October 1998.
34. On 10th March 2000, following that decision, the Parliamentary Under-Secretary of State at the Department of the Environment and the Regions, on behalf of the Secretary of State, made regulations, purportedly under section 2 (2) of the European Communities Act 1972, which provided for the insertion into section 145 (3) (a) of the words "other public place" immediately after the word "road". A similar insertion was to be made to section 143 (1) (a) and (b) of the Act which created the criminal offence to which section 145 is ancillary.
35. There is nothing in those Regulations - the Motor Vehicles (Compulsory Insurance) Regulations 2000 (SI 2000/726) - which suggest that they were to have retrospective effect. The Regulations came into force, as clause 1 made clear, on 3rd April 2000.
36. The liability, if any, of the Motor Insurers' Bureau in relation to the injuries suffered by the plaintiff in the present case arises (if at all) under the Uninsured Drivers Agreement 1988. Clause 2 (1) of that agreement requires the Motor Insurers' Bureau to satisfy a judgment obtained in respect of "any relevant liability". In that context "relevant liability" is - "liability in respect of which a policy of insurance must insure in order to comply with Part VI of the Road Traffic Act 1972 [now Part VI of the Road Traffic Act 1988, of which section 145 forms a part]."
37. In my view, whether or not the liability was a relevant liability for the purposes of the Uninsured Drivers Agreement 1988 must be determined by reference to the law as it was at the time the liability arose. It has not been suggested otherwise. On that basis "relevant liability" was liability of a description contained in section 145 of the Road Traffic Act 1988 as it was at the date of the plaintiff's injury. In the context of this case, a "relevant liability" caused by or arising out of use of a vehicle on a road. "Relevant liability" does not include a liability caused by or arising out of use of a vehicle in a public place which is not a road; in particular, from the use of a vehicle on an open grassed area in a recreation ground. That is the effect of the decision of the House of Lords in Cutter v Eagle Star Insurance Company Ltd; and that position cannot be affected, in relation to liability which arose before 3rd April 2000, by the making of the Motor Vehicles (Compulsory Insurance) Regulations 2000. The Regulations cannot provide a basis for attack in this Court on the decision which the House of Lords has reached as to the proper interpretation of section 145 (3) of the 1988 Act in the light of the relevant European directives for the reasons which Lord Justice Peter Gibson has explained.
38. On the basis that relevant liability is confined to liability caused by or arising out of the use of a vehicle on a road and does not extend to liability caused by or arising out of the use of the vehicle in some other public place, not being a road, the conclusion reached by the Assistant Recorder in this case is unassailable. He was correct in holding that the liability in this case did not arise out of the use of the vehicle on a road and was not caused by such use. On those matters I wish to add nothing to the judgment of Lord Justice Peter Gibson, with which I am in complete agreement.
39. Ms Inman has suffered serious injuries as a consequence of irresponsible and deplorable conduct on the part ofthe rider of the motor cycle in this case. The law has given her a remedy against him. Sadly, that remedy is of no value to her. Enforcement of that remedy against him would produce no fruits. But, in the circumstsances of this case, the law has not given her a remedy against the Motor Insurers Bureau. That position changed on 3rd April 2000. But the law was not altered so as to assist this unfortunate plaintiff.
40. I should add that I agree with the observations of Lord Justice Peter Gibson, that this is a case in whic permission to appeal had to be obtained from the Court of Appeal or from the Assistant Recorder; so that permission purportedly granted by Mr Justice Penry-Davey is of no effect. In the circumstances that the appeal must fail, I, too, would refuse the application for permission to appeal.
41. LORD JUSTICE KEENE: I agree with both judgments which have been given. I would only add that the explanatory note attached to the Motor Vehicles (Compulsory Insuuance) Regulations 2000 relied on by Mr Dable is not merely of no legal effect but may tend to give to the unwary a somewhat misleading impression, namely that the House of Lords in Cutter found that the United Kingdom domestic law, as embodied in the Road Traffic Act 1988, did not in some way comply with the European directives and that that was why those regulations in the year 2000 were being made. In fact, quite the reverse was the position. The House of Lords in Cutter made no suggestion that the law as it stood at that time failed to comply with this country's obligation under those directives. The meaning of the relevant provision in the 1988 Act in the light of those European directives was fully considered by the House of Lords in Cutter and is not to be departed from because of a later amendment to that Act by the 2000 Regulations.
42. I concur in the orders which have been proposed.
Order: Appeal refused with costs