The defendant operated a business repairing camper vans from a workshop unit on an industrial estate. One of his vans slipped down a ramp injuring a member of the public.

The defendant’s insurers argued that the accident had not happened in the “road” as defined in the Road Traffic Act 1988 because the road which led to the industrial estate was a private road.

It was held that the test as to whether the road was a public one was whether those public who came there could do so without making a prior appointment, without obtaining access by overcoming a physical obstruction or in defiance of any prohibition and as such this was a public place and could be treated as a road.

Anyone could visit the estate and you did not have to be part of a selective class of the public to do so and that was a road for the purposes of the 1988 Act.

Judgment for the claimant.
RICHARD GORDON EVANS (Claimant) v GRAHAM CLARKE (T/A FBI VOLKSWAGEN SERVICES) (Defendant/Part 20 Claimant) & NIG INSURANCE PLC (Part 20 Defendant) (2006) CC (Cardiff) (Field J) 7/4/2006

Practice and Procedure

Some really good news on limitation

The House of Lords has swept away their previous 1979 decision in Walkley which held that, where a claimant has issued proceedings within the time limit, the court had no discretion under Section 33 to allow a second action issued after the limitation period had expired.

Instead, the court has held that there is now a wider discretion to disapply the limitation period in a personal injury action where it is equitable to do so and it is not subject to the technical rule in Walkley.

The Lords departed from Walkley for three reasons:
1. It unfairly deprived claimants of a right which Parliament intended them to have;
2. It had driven the Court of Appeal to draw distinctions which were correct but so fine as to reflect no credit on this area of law;
3. It subverted Parliament’s clear intention.

In resolving a Section 33 application, the court had to make a decision which inevitably either deprived the defendant of a defence or stifled the claimant’s action. In choosing between these outcomes, the court had to be guided by what appeared to be equitable meaning no more but no less than fair and to have regard to all the circumstances of the case.

However, the court stopped short of giving any guidance on how the court should exercise discretion. Nevertheless, there is much in this decision that assists in the argument that where time limits have been missed but where there is no real evidence of any prejudice to the defendants, the claimant should have a stronger prospect of being given Section 33 discretion.

Horton -v- Sadler and Another. House of Lords, 19 June 2006, Times Law Reports.