Roads or other public place; a road oft travelled

Mon, 01 Nov 2021

For a form of words with pedigree going back to at least 1930 and generating judicial decisions on it within a couple of years from then, it may surprise some to discover that the meaning of ‘road or other public place’, found at various points through the Road Traffic Act 1988, remains capable of causing lawyers to disagree. Then again, the fact it is lawyers disagreeing may surprise nobody.

Master Dagnall had cause to consider the phrase in the case of Brown v Fisk & Anor [2021] EWHC 2769 (QB). The First Defendant, Mr Frisk, was alleged to have caused injury to the Claimant using a car driven in a yard near Lewes in Sussex. The policy of insurance was avoided, but the relevant insurer was nonetheless brought in as Second Defendant. The Second Defendant had applied for summary judgment on the basis that the accident did not happen on a road or other public place, such that the duty under the Road Traffic Act for meeting unsatisfied judgments did not apply.

There were also a Third and Fourth Defendant involved in the claim, the MIB and Secretary State for Transport. They were brought in respectively as the First Defendant was uninsured (although the same road or other public place caveat arguably applies) and on the basis that the Act did not properly implement an EU Directive (the accident and claim pre-dating ‘Brexit’). In a move that may well shock many who know lawyers, the Third and Fourth Defendants did not send along anyone to add their time and experience to the arguments.

The Master effectively reminded all those involved with such personal injury claims that the test is ultimately a fact sensitive one. However, as a handy rule of thumb (albeit a rather long thumb) Master Dagnall rationalised the case law at [72] as follows:

it seems to me that the true distinction is whether the area is used, and allowed by the owner to be used, by visitors who are only coming to enjoy the linked owner premises for a private purpose of the owner, or whether there is some real and significant number of visitors whose access is tolerated, who are there other than only for the owner's truly private purposes. By " the owner's truly private purposes" I mean purposes of the owner which are private in nature rather than being the general public doing something which the general public generally does as such, for example buying drinks in a pub, or cars from a car franchise; and where those private purposes dominate the purpose of the visit so sufficiently so as to make the visit private rather than public. It seems to me that that is an effective rationalisation of, and is consistent with, the case law, and in particular the basic principle derived from Harrison that the essence of a public place is actual use by the public at least tolerated by the owner.” (emphasis added)

I have highlighted the final sentence because that truly does fulfil the rule of thumb that can be taken away from the case. The reality is that there is much case-law, sometimes apparently somewhat at odds in the results reached, which does need to be carefully considered. But when it comes to the question that really matters, Master Dagnall has in Brown provided a handy and up to date review of the law.

It would be remiss not to mention the result, after you have read so diligently through the rest of the article. Master Dagnall found that the yard for a Bonfire Society – “which is dedicated to organising community events, principally bonfire and fireworks celebrations centred, but not confined, to the period around 5 November in each year”  (discovering the existence of such things is, I hope you will agree, a fact that makes reading this article all the more worthwhile) - was not a road or public place. It had gates that would be open at set times and would occasionally have members of the public in but only for the specific purposes linked to the Society. They were therefore for the Society’s ‘truly private purpose’. There was an absence of evidence that people would park their cars and go for walks out of the yard and that doing so was tolerated by the Society. Accordingly, applying the summary judgment test, the Master granted judgment for the Second Defendant on the issue.

And so, yet another Claimant on the oft travelled road to the question “what is a road or other public place” finds themselves in a dead end. The next question is whether the Claimant will seek to find another road to an appellate court.

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