Clarke v .Kato, Smith and General Accident Fire and Life Assurance Corporation Plc.

The appellants in both cases are the insurance companies.

I deem the ratio decidendi in this case to be ‘does a car park constitute “a highway or other road to which the public has access’ as defined in section 192(1), for the purpose of section 145 (3) (a) in Road Traffic Act.

It was held by the House of Lords that the word ‘road’ did not include a car park or similar public place for the purpose of section 145 (3) (a) in the Road Traffic Act. The court ruled in both cases in favour of the defendants thus overruling previous judgements.

House of Lords posed the following question as the key “……what danger from which the public are to be protected. Is it the use of vehicles on roads, or is it widely the use of vehicles” the answer to which clearly played the central role in the outcome. It was deemed to be the latter, and the judges now had to settle on the best rule of statutory interpretation to adopt. Judges have always had the impractical problem of interpreting a Statue the same way as was meant by the Parliament when drafting it. However drafting legislation for the purpose of easy interpretation and application to every case is anion impossible. A number of words in the English language have more than one meaning and every statute has to be interpreted with regards to fact in every particular case. Judges are free to choose any one of the following rules of statutory interpretation: Literal rule (giving words their exact meaning), Golden rule (broad and narrow), and the Mischief rule. The reality is that it is difficult to predict the interpretative approach that a court will adopt in a particular case. As well as being free to decide which rule to apply, judges themselves also decide whether the chosen rule is the correct one. This simply gives the judges ultimate power, as they control sovereignty via their decisions. Parliament only has the jurisdiction to change the Act, whereas judges are free to choose how to apply a certain Act by means of different rules, dependant on individual circumstances of each case, mindful of course of Parliaments original wishes. As early as 1938, Willis wrote “... a court invokes whichever of the rules produces a result that satisfies its sense of justice in the case before it. Although the literal rule is the one most frequently referred to in express terms, the courts treat all three as valid and refer to them as occasion demands, but, naturally enough, do not assign any reason for choosing one rather than another.” There may even be cases that a judge picks an interpretative principle that allows an outcome that goes with his own view, even where he otherwise favours a different standpoint. For example, Lord Denning—famous for his purposive interpretation—put his weight behind the literal rule in RCN v DHSS [(1980) AC 800]: “Emotions run so high on both sides that I feel that we as judges must go by the very words of the statute - without stretching it one way or the other - and writing nothing in which is not there.”

In the present case his Lordship argued that by applying a “purposive construction” to the word ‘road’ what was meant was a “strained construction”, beyond what the word would mean in “ordinary” usage, and be sufficient to satisfy that expression of the intended “purpose” of the legislation. He concluded that it would “be perfectly proper to adopt a strained construction to enable the object and purpose of legislation to be fulfilled, but it could not be taken to the length of applying unnatural meanings to familiar words or of so stretching the language that its former shape was transformed into something which was not only significantly different but had a name of its own. That was particularly so where the language had no evident ambiguity.” 

The decision here was deemed to have “far reaching consequences” as  the construction of the word ‘road’ in section 145 (3) would affect numerous future cases, due to the words substantial use throughout primary and secondary legislation. I believe the judges had very little option, but to apply the Literal rule. This was made clearer by the fact that a number of current statutes undoubtedly showed Parliaments intention to differentiate between a ‘road’ and a ‘car park’. The statutes showed the word “‘road’ stands alone it bears its ordinary meaning and is not to be extended to public places such as car parks.” In Section 25 of the 1988 Act, it states “If, while a motor vehicle is on a road or on a parking place….” clearly defining the difference, section 29 (2) of the Road Traffic Act 1930, section 68 of the public Health Act 1925, the Road Traffic Regulation Act 1984 all of which have a corresponding distinction in the language between ‘road and ‘parking space’. The distinction recognised by Parliament and used in this case in appellants favour can also be found in the provisions forming Part IV  of the Act in 1984 and the definition of “street parking place” and “off street parking place” in section 142. Clearly by looking at these the House was careful not to broaden the sense of the word ‘road’ by taking the physical surroundings in to the equation, not to contradict what was meant by the Parliament. A fault I might add that was recognised of the Court of Appeal by taking into account the ‘passage’ and the character and function of the car park when coming to their decision. The House of Lords stated two main reasons for not taking the ‘broad’ approach, and therefore applying the ‘Literal’ rule. Both were admirably summarised by L J-G Clyde saying that in first instance the purpose of legislation is achieved by the creation on an offence adding “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 if the whole body of statutory regulations and provisions were applicable to car parks as ‘roads’ and therefore ‘public spaces’, that would constitute some invasion to the proprietors rights and his land as parts I, III, V, VIII of the Act of 1984 contain a variety of such powers, so effectively undermining the owners exclusive rights to his property. His Lordship also drew on sections 1 and 3 of the Road Traffic Act 1991 which followed the report of the North Committee of April 1988 in which “….the word ‘road’ stands alone it bears its ordinary meaning and is not to be extended to public places such as car parks”.

In view of the decision, his Lordship put the onus to change the legislation on the Parliament, in his summary, if the decision was deemed to contravene their intended meaning, by stating “In relation to the legislation before us, if it is thought that an extension of the application of the Act, or any part of it, is required, that must, in my view, be matter for parliament to achieve.”

BIBLIOGRAPHY:

-Cutter v Eagle Star Insurance, (1998) 4 All ER 417

-G Slapper, D Kelly, “The English Legal System” 6th edition, Cavendish, London 2003. pages 171-182

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