Seunarine (pc #12932) v Parray
| Jurisdiction | Trinidad & Tobago |
| Judge | A. Yorke - Soo Hon, J.A. |
| Judgment Date | 22 July 2015 |
| Neutral Citation | TT 2015 CA 22 |
| Docket Number | Magisterial Appeal 59/2008 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 22 July 2015 |
Court of Appeal
Weekes, J.A.; Yorke Soo-Hon, J.A.
Magisterial Appeal 59/2008
Ms. J. Honoré - Paul for the appellant
Ms. K. Parray for the respondent
Statute - Interpretation — Appeal — Whether carpark was road within the meaning of the Act — Motor Vehicles and Road Traffic Act, Chap. 48:50.
The complaints against the respondent were that on Thursday 17th March, 2005 he committed a series of traffic offences contrary to sections 72 and 79 of the Motor Vehicles and Road Traffic Act Chap 48:50 (hereinafter called “the Act”), in that he drove his motor vehicle No. PBK 6844 without due care and attention failed to stop and render aid and failed to report the accident to the nearest police station.
On 31st July, 2007 the Court dismissed all of the charges holding that the Republic Bank car park was not a “road” within the meaning of the Act.
On the 17th of March, Anna Granger, a Securicor guard, was on duty at the Republic bank Car Park at Lower High Street San Fernando. Between 9 – 10am the respondent drove his motor vehicle into the car park and proceeded to park same in a “handicap” parking spot. Ms. Granger signaled to him that he ought not to park there but he ignored her. When he alighted from his vehicle, she approached him and told him that he was not allowed to park there. The respondent asked her if she did not know who he was and how much money he had and he walked off. She followed him to the gate telling him that he had not taken his parking ticket but he again ignored her.
When the respondent returned to his vehicle Ms. Granger again approached him and told him that he needed to get his ticket stamped and returned to her. She then asked him for his name to put it on the ticket and he gave his name as Virgil Parray. As soon as she was finished writing it down, he snatched the ticket from her.
Ms. Granger turned her back to the respondent and she heard a car door slam and the sound of a car engine. She turned around and saw the respondent in his car coming straight at her. Before she could retreat, the front bumper of the car struck her on her right knee. He then reversed the car and the back tyre rolled over her right instep. She pulled herself away from the car. The respondent then drove off, exiting the car park.
A passer-by came to her assistance and Ms. Granger was taken for medical attention and later to the San Fernando police station where she made a report.
On the said day, the appellant visited the scene and took certain measurements. He measured the car park. The width at the handicap area measured 11 feet and the point of impact to the pavement measured 5 feet. He testified that when one entered and exited the car park one would use the same entrance, which was gated. He was unable to say whether the car park was completely enclosed. He testified out that there was a roadway in the middle of the car park and observed that there were marked parking spaces on either side.
At the close of the case for the Prosecution, the Magistrate upheld a no case submission on the basis that the Prosecution had failed to adduce sufficient evidence to establish an essential element of its case, namely, that the car park was a “road” within the meaning of the Act.
The key question for the magistrate's determination was whether the car park was a “road” within the meaning of section 2 of the Act. In coming to his conclusion the magistrate considered that the use of the car park was controlled by Republic Bank and that parking provision was made for its customers only. The public did not have general or conditional access to it even if a fee was paid. Since access was limited to a select class of persons, the Magistrate found that the car park did not fall within the meaning of “road” under the Act.
In coming to his decision, the magistrate referred to several authorities including Britto and Stauble v. Alves (1967) 12 W.I.R. 48, Cordeau v. Stoute (1962) 4 W.I.R. 394, O'Garro v. King (1962) 5 W.I.R. 104, and Archbold Criminal Practice Evidence and Pleading (2004) Paras 32 – 18.
Counsel for the appellant, Mrs. Honoré – Paul, submitted that the magistrate erred when he concluded that the car park was outside the meaning of “road” because the definition of “road” under the Act was crafted in broad terms and was therefore wide enough to include car parks and places where members of the public could reasonably expect to be protected from the use of vehicles.
Referring to the language of the section, she submitted that there were three questions to be asked when assessing whether a place was a “road” within the meaning of the Act. The first was whether the place in question was a street, road or an open space. The second was whether the public were granted access to that place generally or conditionally and the third was whether the place was privately owned. She also submitted that each case would turn on its own peculiar facts.
She further contended, that on the facts of this case, the car park was a place to which the general public was granted access both explicitly and impliedly by invitation. Although the car park was intended for the use of the Bank's customers, this did not create a special category of persons as all members of the public were potentially customers. The evidence that the car park was privately owned and that its use was conditional on the stamping of the parking ticket inside the Bank placed it squarely within the definition provided by the Act.
Ms. Parray for the respondent in her submission suggested a two – step approach in determining the question whether a car park qualified as a “road” for the purposes of the Act. The first limb required an evaluation of whether the general public had access to and used the car park. If the users of the car park were a special class of persons and not the general public, then the car park was not a “road”. However, if the public did use the car park, there was a second limb to be satisfied, namely whether the car park bore all the normal physical characteristics of a road in the ordinary sense. It was only if both limbs were satisfied that the car park would fall within the definition of “road” under the Act.
She further submitted that the evidence adduced by the Prosecution disclosed no sufficient basis from which it could be concluded that the car park was a “road”. The car park was designated for the use of Bank customers only and not the general public, so that there was no conditional access. She also submitted that the car park was an enclosed area and that there were neither road signs nor any other characteristics which might be shared with a “road”. On the totality of the evidence the car park was simply not a “road” within the meaning of the Act.
The definition of “road” is found in section 2 of the Motor Vehicles and Road Traffic Act Chap 48.50:
“‘road’ means any street, road or open space to which the public are granted access and any bridge over which a road passes, and includes any privately owned street, road or open space to which the public are granted access either generally or conditionally;”
This definition contrasts with the English provision, upon which several of the authorities to which we have been referred were determined. Section 257 of the Road Traffic Act 1960 (UK) defined a “road” as “any highway and any other road to which the public has access, and includes bridges over which a road passes”. The Trinidad and Tobago provision is therefore drafted in broader terms.
In determining the question at hand we find it helpful to review the line of authorities in this regard.
In Harisson v. Hill (1932) SC (J) 13, the appellant, while disqualified from holding a licence, drove his vehicle on an access road connecting a farmhouse and a public highway. Members of the general public used that road and there was nothing in the facts to suggest that they were intended to be excluded. The question on appeal was whether the farm road fell within the definition of “road” for the purposes of the act. The farm road was found to be one to which the public had access, not on account of the special class of members of the public who have occasions for business or social purposes to go to the farm house or any part of the farm itself, but rather because the public had access to the private road in question without objection.
On the other hand, in Buchanan v. Motor Insurers' Bureau [1955] 1 All ER 607 the plaintiff was injured when he was struck by a lorry driver at the London dock facility. The insurers contended that the dock road was not a “road” within the meaning of the Act. The evidence was that passes were required to enter the dock area. Unauthorized persons were refused admission. On these facts, the Court dismissed the appeal and held that the dock road was not a place to which the public had access neither as a legal right nor by the tolerance of the owners.
In Griffin v. Squires [1958] 3 All E.R. 468 the issue was raised whether a car park could be a “road”. In that case the respondent was charged for driving a motor vehicle in a car park when she held neither a driving licence nor insurance. The car park adjoined a major road which provided a means of ingress for vehicles. It was otherwise fully enclosed save for a private footpath in the north-west corner which led to a bowling club and a garden. The car park was maintained at public expense and all members of the public were allowed to park their vehicles there without payment. It was therefore a place to which the public generally had access and were in the habit of using. Lord Parker C.J. opined:
“Is the car park as a car park a road...
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