Zerella Holdings Pty Ltd v Williams

[2012] SASCFC 100

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Civil)

ZERELLA HOLDINGS PTY LTD & ANOR v WILLIAMS & ANOR

[2012] SASCFC 100

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Blue)

24 August 2012

INSURANCE - MOTOR VEHICLES - COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES - PUBLIC STREET, ROAD, HIGHWAY, PLACE ETC

INSURANCE - MOTOR VEHICLES - COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES - UNINSURED VEHICLE - LIABILITY OF NOMINAL DEFENDANT - OTHER MATTERS

Appeal from a judge of the District Court – second respondent (plaintiff) sustained injuries in the course of a forklift being used to unload a B double semi-trailer in the loading bay of the appellant company’s business premises – the forklift was uninsured - the plaintiff joined the Nominal Defendant (the second respondent) as a defendant to the proceedings – the preliminary issue for the trial judge was whether the loading bay was a “road” or “road-related area” as defined in s 5 of the Motor Vehicles Act 1959 (SA) – appeal against finding on preliminary issue – whether the loading bay area is a place “open to or used by the public” – whether the trial Judge erred in his conclusion.

Held (Kourakis CJ and Blue J): Appeal dismissed – to determinine whether private premises are open to or used by the public, it is necessary to consider both the terms upon which the occupier permits legal access and the terms  upon which persons actually have access – there is a distinction between a general invitation extended without discrimination to the public and a series of invitations restricted to specific invitees for the purpose of transacting business with the occupier or otherwise – in this case the invitees were not members of the public and the use of the loading bay for its intended purpose of loading carrier vehicles did not make it an area that was open to or used by the public – the trial Judge correctly concluded that the loading bay was not a “road” or “road-related area”.

(Gray J dissenting): the trial Judge failed to adequately consider the term “road-related area” – customers of the appellant’s business premises drove into, and made substantial use of, the loading bay area – in all, hundreds of vehicles drove into the loading bay area each week – the evidence was sufficient to allow a conclusion to be reached that the loading bay area was “open to or used by the public” and hence within the term “road-related area” as defined in section 5 of the Motor Vehicles Act 1959 (SA).

Schubert v Lee (1946) 71 CLR 589, applied.
Bugge v Taylor [1941] 1 KB 198; Chappell & Co Ltd v Associated Radio Co of Australia Ltd [1925] VLR 350; Dwyer v Police [2005] SASC 31; (2005) 90 SASR 593; Harrison v Hill  [1932] SC (J) 13; McBain v Reyne (1998) 69 SASR 580; Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd [1982] 1 NSWLR 728; Thomas v Dando [1951] 2 KB 620; R v Abrahams [1984] 1 NSWLR 491, discussed.
Elkins v Cartlidge (1931) 23 Cr App R 49; O’Sullivan v Brady [1954] SASR 140 ; R v Collinson (1931) 23 Cr App R 49; Roberts v O’Sullivan [1950] SASR 245; Ryan v Nominal Defendant [2005] NSWCA 59; (2005) 62 NSWLR 92, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"road"
"open to or used by the public"
"public place"

ZERELLA HOLDINGS PTY LTD & ANOR v WILLIAMS & ANOR
[2012] SASCFC 100

Full Court:       Kourakis CJ, Gray and Blue JJ

1. Kourakis CJ & Blue J:           This is an appeal from a judgment of a Judge of the District Court on a preliminary issue in an action for personal injuries brought by Mr Williams against Zerella Holdings Pty Ltd (“Zerella”), its employee Mr Edwards and the Nominal Defendant.

2. The first appellant Zerella is a potato, carrot and onion merchant.  Zerella operates its business from Johns Road, Virginia (“the premises”).  At the material time, Zerella employed the second appellant Mr Edwards as a forklift driver to load produce into transport vehicles collecting produce from Zerella.

3. On 15 June 2005, the first respondent Mr Williams was injured on the loading bay of the premises due to the operation of a forklift driven by Mr Edwards. Mr Williams was employed by a transport operator, Collins, and was at the Zerella premises in the course of his employment. Mr Williams sued not only Zerella and Mr Edwards, but also the second respondent, the Nominal Defendant, because the forklift driven by Mr Edwards was not insured pursuant to Part 4 of the Motor Vehicles Act 1959 (SA) (“the Act”).

4. The liability of the Nominal Defendant depended on whether the loading bay was a “road” within the meaning of section 5 of the Act,[1] which, relevantly, includes areas which are “open to or used by the public”. A Master of the District Court ordered that that issue be determined as a preliminary issue. On the hearing of that issue, Mr Williams, Zerella and Mr Edwards contended, and the Nominal Defendant denied, that the loading bay was a road as defined by the Act.

   [1] Section 102 of the Act prohibits the driving of uninsured vehicles on roads. Section 116 imposes a liability on the Nominal Defendant for personal injuries caused on a road by an uninsured vehicle.

5. The trial Judge held that the loading bay was not a road.[2]  Zerella and Mr Edwards have appealed against that finding.  For reasons explained below, the loading bay was not a road.  We would therefore dismiss the appeal. 

   [2] [2011] SADC 179.

Background Facts

1. Johns Road is a no through road running north from its junction with Angle Vale Road.  The premises are on the western side of Johns Road.  There is no reason for members of the public to travel along Johns Road other than to visit the private commercial or agricultural premises which it services. The trial judge described Johns Road as being “a relatively remote area”.

2. Zerella processes large quantities of root vegetables which are delivered to the Zerella premises by large trucks.  The vegetables are sorted and washed and then packed for sale.  The Zerella premises comprise a sprawling mass of connected sheds (“the shed complex”).  There is also a freestanding small office structure which stands in front of the shed complex and beyond a paved parking area.

3. A bitumen access road runs from the Johns Road entrance towards the west of the premises where the office and then the complex of sheds are located.  At the relevant time the premises were enclosed by a cyclone wire fence about 1.8 metres high.  Two tubular steel gates stand at the entrance.  They were closed across the access road at night and opened up in the morning.  The junction of the access road and Johns Road is formed by a continuous bitumen surface which is wider and in better condition than the bitumen surface of the continuation of Johns Road to the north.  The surfacing creates a visual impression that Johns Road curves around from a northerly to a westerly direction into the premises. 

4. About 100 metres along the access roadway from the gate there was, at the relevant time, a sign[3] which read:

   [3]    At the time of the hearing in the District Court there was another sign about 40 metres further to the west from that sign, which read “No Cars Past This Point.”  The trial Judge referred to the sign at [18] of his reasons but at [58] proceeded on the basis that that sign was not present at the relevant date.  We proceed on the basis that that sign was not in place at the relevant time.

   ALL DRIVERS AND VISITORS

   PLEASE ENQUIRE AT

   OFFICE FOR PERMISSION

   TO ENTER PACKING SHED

5. The trial judge found that the reference on the sign to “packing shed” was a reference to the shed complex as a whole. It is apparent from the photographs tendered at trial that it would be so understood by any visitor to the premises.

6. There is a paved parking area about 20 metres to the right front of the “All Drivers and Visitors” sign.  The office is on the north western edge of the parking area.  The office and parking area are visible from the point at which a visitor would read the sign. The shed complex generally is visible as being further away to the west again from the parking and office area. 

7. There is a concrete-surfaced loading bay located on the southern side of the shed complex. This is a further 100 metres beyond the “All Drivers and Visitors” sign. The concrete-surfaced area is partly undercover and extends a further 7 metres to the south beyond the undercover area to allow for the access and egress of large articulated vehicles. To the south of the concreted area, there is a bituminised area which extends a further 12 metres to the south.  Further south again, there is a levelled area covered by gravel.  We refer to these areas respectively as “the concrete area” (or “the loading bay”), “the bitumen area” and “the gravel area” and to the entirety of the three areas as “the loading area”.

8. At the time of his injury, Mr Williams’ B-double was parked with its rear trailer on the concrete area and Mr Williams was standing on the concrete area.  Mr Edwards’ forklift was on the concrete area unloading pallets from the trailer when it dislodged adjacent pallets in the trailer which fell and injured Mr Williams.

9. On the northern side of the loading bay, there is a small enclosed office and large access doors leading further into the shed complex. 

10. Ms Pomery, the Zerella employee responsible for occupational health and safety at the time of the accident, gave evidence that employees of Zerella would stop people wandering around the premises.  She testified that customers were not permitted to proceed directly to the loading area but were required (in accordance with the sign) to report first to the office to ensure that they were inducted into the safe work practices of the premises.  She testified that transport operators and retailers were required to pre-order types and quantities of vegetables and pre-arrange payment and a specific collection time.  It is apparent from the photographs that a pre-arrangement system would be essential to efficient loading as the concrete loading bay could contain only two carrier vehicles at any one time. Ms Pomery testified that rules to the above effect were recorded in a “Statement of Policy – Occupational Health and Safety - Packing Shed Site” booklet at the time of the accident. 

11. Mr Edwards gave evidence concerning the customers who attended at the loading area. On his evidence, customers fell into three categories.

12. The first category comprised commercial transport operators who collected produce in carrier vehicles for delivery to major customers’ warehouses (distribution/wholesale centres). Mr Edwards testified that there were four transport operators, of which Collins (Mr Williams’ employer) was by far the most prominent, accounting for about 80% of collections. The carrier vehicles of the transport operators comprised B-doubles, semi-trailers and large trucks.   

    Mr Edwards testified that the carrier vehicles reversed into the concrete loading bay and were loaded by forklift from the rear or from the sides. Two carrier vehicles could be loaded at a time from the rear but only one at a time from the side due to the constricted space inside the loading bay.

    Mr Edwards testified that the B-doubles and semi-trailers were too long to fit entirely on the concrete area: most of the vehicle (including the (rear) trailer) was situated on the concrete while the front (including the cab) was situated on the bitumen. These vehicles waited on the gravel area or the bitumen area while other vehicles were in the loading bay but were not loaded until they entered the concrete area as described above. They were not loaded on the gravel area.

    It took in the vicinity of two to three hours to fully load a carrier vehicle, although sometimes they were only collecting a few pallets of vegetables, which would be much quicker.

    Mr Edwards testified that the concrete area was a busy and constricted space. He and other Zerella employees prevented customers (other than the driver of the carrier vehicle being loaded at the time) from entering that area and getting in the way. It would have been dangerous for a car to be there.

13. The second category comprised greengrocers (retailers) who attended in vans (or utilities) to collect commercial quantities of produce. The retailers purchased by the pallet. The retailers did not enter the concrete area, which was reserved for the transport operators. The retailers were loaded on the gravel area or the bitumen area away from the carrier vehicles of the transport operators.

14. The third category comprised individuals who attended in sedans or similar “ordinary” vehicles to collect one or more bags of vegetables (5, 10 or 20 kilogram bags) for domestic consumption. Mr Edwards said these individuals came in on a regular basis and described this category as follows:

    Owners of grocery stores, friends, friends of the boss, friends of other people…Most of them were actual customers that had been going there 10, 20 years and others were friends or friends of friends or that sort of thing… they knew if they came in they would be able to do that sort of transaction.

    In addition, carrier drivers for the transport operators comprising the first category attended to collect a bag of vegetables for domestic consumption for which they did not pay. Mr Edwards explained that he and his fellow forklift drivers would “look after” their friends, with the knowledge and consent of his employer.  The amounts involved were small and were sometimes exchanged with other produce brought in by the carrier drivers.

15. On Ms Pomery’s evidence, it appears that, unlike the first and second categories, individuals in the third category did not pre-arrange their visits to Zerella’s premises.

16. Mr Edwards gave estimates of maximum numbers of customers in these three categories who attended on a daily basis, but his evidence was vague and ambiguous as to whether he was estimating daily attendance at the customer level or the vehicle type level or the category level. In almost every case, he used the expression “anything up to 10 times a day” regardless of whether he was asked about a type of vehicle or a type of customer or a specific customer.

17. On our construction of his evidence (and bearing in mind only one or two carrier vehicles could fit in the concrete area at a time and remained there for two to three hours when they were to be fully loaded), he estimated that there might be anything up to ten or a dozen carrier vehicles (category one) attending on a given day. On alternative constructions, he might have been referring to anything up to 20 or 24 such vehicles or anything up to 30 or 36 such vehicles.

18. Mr Edwards estimated that there were anything up to ten (or perhaps twenty) greengrocers’ vans and utilities (category two) attending on a given day.

19. Mr Edwards estimated that there were anything up to ten individuals in ordinary vehicles (category three) attending on a given day.

20. Ms Pomery testified that one of Zerella’s growers who kept cattle and two Zerella employees who kept stock attended the Zerella premises to collect waste product for feed. However, this was not collected in the vicinity of the loading area but rather at the carrot wash which was beyond the loading area.

21. Mr Edwards agreed in cross-examination that, if someone was found “just walking in for a look”, he or she would be sent away.  Mr Edwards would move people out of the loading bay for their own safety if they wandered in. Mr Edwards gave evidence that he did not want any vehicles in the loading bay other than the transport operators’ carrier vehicles and it was dangerous for cars to be there.  

22. It was contended at trial, and on appeal, that there was a conflict between the evidence of Mr Edwards and Ms Pomery, both of whom were called by the appellants, on the degree to which visitors to the premises were supervised and controlled.  Insofar as there was a conflict, the trial Judge appears to have resolved it in favour of Ms Pomery:[4]

    I accept the evidence of Mr Edwards as to the types of person who would go onto and into the loading bay for the purpose of making small purchases of vegetables.  However, on the topic of the company’s policy I must prefer the evidence of Ms Pomery.  She was the more senior person and it was her area of responsibility.    

    [4] [2011] SADC 179 at [79].

23. The trial Judge, by that finding, preferred the evidence of Ms Pomery as to the time at which Zerella put into writing its safety policy with respect to visitors.  Indeed the written policy might have been produced well before Mr Edwards first saw it.  Be that as it may, the evidence of Mr Edwards as to the movement of visitors around the premises is not inconsistent with Ms Pomery’s evidence.  Plainly enough, the drivers of the carrier vehicles could not drive into the loading bay without some pre-arrangement and direction as to loading procedures.  Mr Edwards’ account of the way in which greengrocers and individual customers picked up their goods shows that they were familiar with the loading area procedures.  Mr Edward’s evidence also shows that the users of the loading area conducted themselves in accordance with the practices and directions of Zerella’s employees.  The visitors did not do as they pleased.

Open to or Used by the Public

1. Section 5(1) of the Act defines “road” and “road-related area” as follows:

   "road" means an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving of motor vehicles;

   "road-related area" means any of the following:

   (a)         an area that divides a road; or

   (b)         a footpath or nature strip adjacent to a road; or

   (c)         an area that is not a road and that is open to the public and designated for use by cyclists or animals; or

   (d)         an area that is not a road and that is open to or used by the public for driving or parking motor vehicles; or

   (e)         any other area that is open to or used by the public and that has been declared by the Minister under section 6 to be a road-related area.

2. Section 5(2b) of the Act provides as follows:

   A reference in this Act to a road includes a reference to a road-related area unless it is otherwise expressly stated.

3. The Act does not use the defined term “road-related area” in any of its substantive provisions, nor does it expressly state at any point that it is not using the term “road” in the sense defined in section 5(2b) to encompass a “road-related area”. All parties proceeded below and on appeal on the basis that the term “road” in sections 102 and 116 is used in the broader, section 5(2b), sense. We proceed on that basis.

4. It may be doubted that either the concrete loading bay or the broader loading area is developed for, or has as one of its main uses, the driving of motor vehicles so as to fall within the second limb of the definition of “road” in the strict sense in section 5(1) because it is apparently not developed or mainly used as a thoroughfare. However, it is unnecessary to decide that question because the Nominal Defendant concedes that each of those areas is used for driving or parking motor vehicles within the second limb of paragraph (d) of the definition of “road-related area” in section 5.

5. The question to be determined on appeal is therefore whether the concrete loading bay or the broader loading area (as relevant) is “open to or used by the public” (whether for driving or parking motor vehicles).

6. In Schubert v Lee,[5] Latham CJ, Rich and Dixon JJ explained the meaning of the phrase “open to or used by the public” in a statutory definition of a “road” in the following way:

   The definition contained in the statute might very readily have been limited to "public" streets, roads, lanes, &c., but such a limitation has not been included in the definition. The words "open to or used by the public" are apt to describe a factual condition consisting in any real use of the place by the public as the public—as distinct from use by licence of a particular person or only casual or occasional use. It may be necessary to distinguish places open to members of the public as such from places left open by the owner but obviously intended only for the use of a particular description of person, for example, visitors to his shop or other premises. Prima facie the words of the section mean streets, &c., which actually are open to or used by the public, so that there is some need for protection of the public in the use of such streets, &c. This is a view which has been taken of not dissimilar provisions contained in the Road Traffic Act 1930 of the United Kingdom, where a definition of the term "road" includes the following words—"and any other road to which the public has access." It has been held by the Court of Session that a road falls within the definition if the public in fact has access to it, even though it is privately owned, and the public has no right of access to the road. It was so held in the case of Harrison v. Hill, and that decision has been followed in England in relation to the same Act in the case of Bugge v. Taylor. In our opinion the words "open to or used by the public" should, as the Full Court has held, be construed in the same way, so that a lane falls within the definition if in fact it is "open to or used by the public," whether or not there is a public highway over it. There was evidence that the lane in question in this case was in fact regularly used by the public.[6]

   [Citations omitted]

   [5] [1946] HCA 28; (1946) 71 CLR 589.

   [6] (1946) 71 CLR 589 at 592.

1. The passage in Schubert v Lee quoted above was explained by Glass JA in Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd[7] in this way:

   The bisection of the class of premises open to the public into two sub-classes which are respectively entered in exercise of a public right and those entered in tacit acceptance of a private invitation provides a salutary warning. It draws attention to the fact that the definition of the second sub-class of premises will depend upon different considerations from those applicable to the first. I accordingly conclude that we would be authorized in the present appeal, which deals with premises entered in the exercise of a public right, in treating as irrelevant to the meaning of “place open to the public” decisions … which deal with private premises. It is axiomatic that the openness or accessibility to the public of private premises will depend upon some definition of the kind of invitation extended by the occupier to members of the public. How that invitation is to be defined to produce the result that a private place is open to the public generally and not merely a section of it is a question which should be left to be dealt with when it arises.…

   ...I would assume that the class is relevantly defined by the test whether the premises are open indifferently to any member of the public without any discrimination. Moreover it would not matter according to the definition if entry is made dependent upon payment of money or the compliance with other conditions but that is not material here. Applying that definition to the evidence which establishes that any member of the public during the period in question was free to enter and walk about I would find as a matter of fact that the Sandgate Fruit and Vegetable Market at the relevant time fell within the statutory description. Certainly I do not think that it ceased to be open to the public as such because only those citizens minded to buy fruit and vegetables were likely to enter. After all a public baths would not cease to be a place open to the public because only swimmers entered nor would a museum cease to be open to the public merely because its exhibits had an appeal to a limited class only.[8]

   [7] [1982] 1 NSWLR 728.

   [8] [1982] 1 NSWLR 728 at 734–735.

2. The passage in Schubert v Lee quoted above was accepted as a sound statement of general principle by Debelle J in McBain v Reyne.[9] That case involved the meaning of the statutory phrase “commonly used by the public or to which the public are permitted to have access” in the then definition of “road” in the Act for the purpose of determining the liability of the Nominal Defendant. While the statutory definition was different, the following discussion of the concepts of public use and access is helpful in the present context. Debelle J said:

   The ordinary meaning of the expression "commonly used by the public" denotes constant and frequent use of an area by the public generally. The question whether a place is commonly used by the public is essentially a question of fact; the test is simply, has the place been commonly used by the public? Marklew v Allen and Schubert v Lee….

   As the decisions in Harrison v Hill and Schubert v Lee indicate, it may be necessary to distinguish places open to the public generally from places left open but which are obviously intended only for the use of persons for business or social purposes. That proposition serves to emphasise that the issue involves a question of fact. Thus, there is an obvious distinction between private houses which are visited only occasionally for business purposes and areas such as a car park or forecourt which adjoins retail or commercial premises and which is constantly used by those coming to those premises.

   In this context, the fact that the premises are visited or used only by those members of the public who desire to go there does not necessarily mean that the place is not commonly used by the public, so long as the premises are open to the public generally and without distinction. In other words, it is not necessary that all segments of the public will come to or use the place. What is required is that the place is available to the public without discrimination, and a segment of it in fact enters or goes on to the place, and entry is not limited to a restricted class. If those criteria are satisfied, the place will be available to the public even if a fee must be paid. I respectfully adopt the observations of Glass JA in Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd  [set out above]…

   The place will not be available to the public if there is some restriction on access by, say, membership of an organisation or other criterion for selection. One criterion to assist in deciding whether the use is by a special class of the public is whether entry is permitted because of some characteristic which is personal to themselves - if people come to a private house as guests, postmen or meter readers, they come for reasons personal to themselves, to serve the interests of the occupier – or whether they are members of the public who seek entry for their own (rather than the occupier's) purposes but must satisfy conditions for entry such as payment of a fee.[10]

   [Citations omitted]

   [9] [1998] SASC S6501;(1998) 69 SASR 580.

   [10] (1998) 69 SASR 580 at 600-601 per Debelle J.

3. The passage in Schubert v Lee quoted above was also accepted as a sound statement of general principle by Bleby J in Dwyer v Police[11]. That case involved the meaning of the term “road” in the Road Traffic Act 1961 (SA), which was defined in identical terms to the definition of “road” in section 5(1) of the Motor Vehicles Act[12] presently under consideration, for the purposes of a charge of driving on a road while under the influence of alcohol. The road in question was a private access road which led to an orchard and several houses. A gate at the entrance to the road was usually left open. Bleby J said:

   [11] [2005] SASC 31; (2005) 90 SASR 593.

   [12] As opposed to the extended definition in section 5(2b) and encompass a “road-related area.”

   The decision in Harrison v Hill was approved by the High Court in Schubert v Lee… In particular, the definition of "the public" adopted by Lord Clyde was approved by Debelle J in this Court in McBain v Reyne. I therefore conclude that "the public" in the definition, as applied to the evidence in this case, does not include the occupants of the houses and farm buildings, tradespersons delivering goods to or involved in the acquisition of produce from the property and other persons traversing the access road at the express invitation or with the licence of the owner or tenants of the property. Where I refer to "the public" hereafter I exclude reference to this class of people. The only other persons found to have used the access road were those few members of the public who for some reason had wandered onto the property and who, when noticed, were asked to leave…

   The question here is whether the access road in question is in fact used by the public. … Whether there was use by the public is, as the High Court said in Schubert v Lee, a factual condition, a real use, as opposed to a casual or occasional use…

   There was evidence of very occasional use without the consent of the owner. In my opinion such rare casual or occasional use under those circumstances does not constitute use by the public for the purpose of the definition. In that respect the factual situation differs from that in Harrison v Hill where members of the public frequently used the road without objection. I therefore conclude that the access road was not used by the public…

   The final question is therefore whether the access road was "open to" the public….

   This was not a situation where there was any invitation to the public generally or to a section of it to attend on the property such as might be the case of a privately owned hotel forecourt or a privately owned shopping centre car park. The access road was on privately owned property. At the relevant time there was a gate at the entrance from Montacute Road which could be closed, but which seldom was. Mr Perugini had an undoubted right to forbid members of the public from entering upon his land. He had the right to determine who could enter the property. For anyone to enter the property lawfully it could only be on his invitation or with his licence or with the invitation or licence of a person whom Mr Perugini had authorised to extend that invitation or licence…

   …there must be an invitation or permission to the public before it can be said that the public has access to the area, or that the place is "open" to the public. That invitation may be express; it may be implied…

   The distinction noted by the members of the High Court [in Schubert v Lee] is relevant here. It imports into the notion of being "open" to the public, in the case of private property, an element of intended permission or licence by the owner. The evidence in this case showed that, although the gate was left open, the access road was intended only for use by a very limited class of persons and not by members of the public.

   …merely because premises are open in the sense of having no physical barrier between them and a public road does not mean that the owner consents to any member of the public entering upon the land. If it were otherwise, it would follow that at any time I leave the front gate of my residence open it would constitute permission to the public generally to enter, and if the gate happened to be across the driveway which leads to my carport, my driveway would become a "road" for the purposes of the Road Traffic Act....

   It follows that, in my opinion, an area such as that in question in this case is only open to the public if there is some evidence that the owner has given express or implied permission to members of the public of the relevant class to enter upon the land. There was no such evidence in this case.[13]

   [Citations omitted]

   [13] (2005) 90 SASR 593 at [15], [18], [19], [20], [21], [23], [25], [28] and [30].

4. Various other cases have discussed the concept of “the public” in statutory definitions for various purposes. While caution needs to be exercised in considering cases in different contexts involving different statutory definitions, such cases can nevertheless be illustrative.

5. In Harrison v Hill[14], which was cited with approval by the High Court in Schubert v Lee, Lord Clyde in the Court of Session said:

   I think that, when the statute speaks of "the public" in this connexion, what is meant is the public generally, and not the special class of members of the public who have occasion for business or social purposes to go to the farmhouse or to any part of the farm itself. [15]

   [14]   [1932] SC (J) 13.

   [15]   [1932] SC (J) 13 at 16.

6. In Bugge v Taylor,[16] which was also cited with approval by the High Court in Schubert v Lee, the defendant was charged with leaving a motor vehicle without lights on a “road” which was defined to include a road “to which the public has access”. The vehicle was left in the forecourt of a hotel, which was open at both ends and was habitually used by members of the public as a short cut. The Court of Appeal in England confirmed the conclusion of the justices that the forecourt was a “road”.

   [16] [1941] 1 KB 198. See also Elkins v Cartlidge (1931) 23 Cr App R 49 to similar effect where the justices had found that a court at the rear of a hotel was habitually used by members of the public (other than hotel patrons) for parking.

7. In Thomas v Dando,[17] the Court of Appeal upheld the dismissal of an information charging the same offence. The car was parked in the unpaved forecourt between a shop and the pavement of a public highway, which was used by the customers of the shop.  Lord Goddard CJ explained and distinguished Bugge v Taylor in this way:

   Bugge v Taylor concerned the forecourt of a hotel which was in no way separated from the road, and over which the public were in a habit of walking and even driving.  In fact, the hotel proprietors allowed the place to be used as though it were part of the road… 

   All that the Court decided in Bugge v Taylor was that there was evidence on which the justices could find that the forecourt was a road.  It was not laid down that every court was bound to find that a place is a road merely because it is not separated by a wall or rail from the pavement.  It would be impossible to hold that this little piece of land, which was only used by the customers of the shop, is a road.[18] 

   [17] [1951] 2 KB 620.

   [18] [1951] 2 KB 620 at 622.

8. In South Australia, the concept of use by the public “as such” has informed the meaning of the words “public place” in certain summary offences.  Various provisions of the Summary Offences Act 1953 (SA) appear to be premised on the distinction between public and private use made by the authorities to which we have referred. The definition of public place in that Act includes “a place to which free access is permitted to the public, with the express or tacit consent of the owner or occupier…”[19] 

   [19] Section 4 of the Summary Offences Act.

9. In Roberts v O’Sullivan,[20] a conviction for wilful exposure in a public place was affirmed on appeal.  The exposure had been committed in a disused quarry on privately owned property.  The site was used as a dump by local residents and as a “playground” by children.  Napier CJ explained that:

   …the test is not so much the extent as the nature of the use.  If the fact is that anyone who feels so inclined can and does wander over the land without let or hindrance, the people who wander in that way are the “public,” and there is no reason why the Act should not be understood as intended for their protection against offensive behaviour.[21]

   (Emphasis added)

   [20] [1950] SASR 245.

   [21] [1950] SASR 245 at 246.

10. In O’Sullivan v Brady,[22] the dismissal of a complaint of offensive behaviour in a toilet in the basement of a multi-story office block was confirmed on appeal on the grounds that the toilet was not a public place.   The toilet was not marked for public use. The toilet was intended to be used, and was used, by employees of the tenants.  A radio auditorium in the basement was hired on occasions for public meetings and the attendees used the toilets on those occasions.  Napier CJ accepted that the evidence was finely balanced.  However, the absence of evidence that the “public” were in the “habit” of using the toilet was critical.  Napier CJ distinguished the toilet from the ground floor passage saying:

    In the case of the corridor on the street level, it may well be that the public are tacitly invited in, and that the number who do actually go in, for one reason or another, is sufficient to constitute a use by the public.[23]  

    (Emphasis added)

    [22] [1954] SASR 140.

    [23] [1954] SASR 140 at 143.

11. It can be seen that the distinction between private premises and public places permeates the regulation of conduct in a wide range of social circumstances.  Great care needs to be exercised before shifting the line of demarcation established by long standing authority.

12. The authorities discussed above establish the following general propositions as to whether a road or area “is open to or used by the public.”

13. It is not necessary that the land be publicly owned or that there be a public right of access or use.[24] Different considerations apply to private land compared to public land in this sense.[25] 

    [24]   Schubert v Lee (1946) 71 CLR 589 at 592 per Latham CJ, Rich and Dixon JJ.

    [25]   Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd [1982] 1 NSWLR 728 at 734-735 per Glass JA.

14. In the case of private land, the composite phrase “open to or used by the public” encompasses legal entitlement to entry by the public (de jure) as well as actual use by the public (de facto).[26] The words “open to” are more apposite to the former and the words “used by” are more apposite to the latter.[27]

15. In the case of private land, the phrase “open to… the public” refers to an invitation or licence expressly or impliedly extended to members of the public by the private occupier.[28]  The question is not whether the land is physically open to the public, although the existence or non-existence of a physical barrier to entry may be one factor in assessing whether an invitation is extended to the public.[29]

16. For this purpose, there is a distinction between a general invitation extended without discrimination to the public and a series of invitations restricted to specific invitees for the purpose of transacting business with the occupier or otherwise. Much will depend on the circumstances including the restrictions upon those eligible for entrance and the scope of the permitted uses on gaining access. [30]

17. The mere fact that a fee is charged[31] or that the area is used only by members of the public with a particular interest (for example, swimming or natural history in the case of public pools and museums respectively)  does not of itself establish that it is not “open to the public”.[32] 

18. In the case of private land, the phrase “used by the public” refers to actual use (even without the permission of the occupier) by the public but not to mere use by specific invitees or to an isolated use by a member or members of the public. [33]

    [26]   Schubert v Lee (1946) 71 CLR 589 at 592 per Latham CJ, Rich and Dixon JJ.

    [27]   Dwyer v Police (2005) 90 SASR 593 at [18]-[20] per Bleby J. See also the discussion concerning the relationship between the two in Ryan v Nominal Defendant [2005] NSWCA 59; (2005) 62 NSWLR 92 per Giles JA at [2]-[12] and Santow JA (McColl JA agreeing) at [76]-[82].

    [28]   Schubert v Lee (1946) 71 CLR 589 at 592 per Latham CJ, Rich and Dixon JJ; Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd [1982] 1 NSWLR 728 at 734-735 per Glass JA; McBain v Reyne (1998) 69 SASR 580 at 600 per Debelle J; Dwyer v Police (2005) 90 SASR 593 at [20]-[28] per Bleby J; Ryan v Nominal Defendant (2005) 62 NSWLR 92 at [76]-[82] per Santow JA (McColl JA agreeing).

    [29]   Dwyer v Police (2005) 90 SASR 593 at [20]-[28] per Bleby J; Ryan v Nominal Defendant (2005) 62 NSWLR 92 at [5] and [8]-[12] per Giles JA; [76]-[82] per Santow JA (McColl JA agreeing).

    [30]   Harrison v Hill [1932] SC (J) 13 at 16; Schubert v Lee (1946) 71 CLR 589 at 592 per Latham CJ, Rich and Dixon JJ; Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd [1982] 1 NSWLR 728 at 734-735 per Glass JA; McBain v Reyne (1998) 69 SASR 580 at 600 per Debelle J; Dwyer v Police (2005) 90 SASR 593 at [13]-[19] per Bleby J.

    [31]   Mercantile Mutual Insurance Co. Ltd v W Turner Pty Ltd [1982] 1 NSWLR 728 at 735 per Glass JA. Compare section 4 of the Summary Offences Act which includes as a "public place" a place "to which the public are admitted on payment of money, the test of admittance being the payment of money only."

    [32]   Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd  [1982] 1 NSWLR 728 at 735 per Glass JA; McBain v Reyne (1998) 69 SASR 580 at 600 per Debelle J.

    [33]   Schubert v Lee (1946) 71 CLR 589 at 592 per Latham CJ, Rich and Dixon JJ; Dwyer v Police (2005) 90 SASR 593 at [21]-[28] per Bleby J.

19. The fourth proposition is illustrated by the authorities dealing with car parks.  Sometimes the use of the car parks of business premises is expressly or impliedly limited to the customers or suppliers of the business.  By contrast, hotel and shopping centre car parks are often used by the public for purposes unrelated to the hotel or shopping centre they service.  That use is often allowed by the occupier in the hope that, while using the space for their own purposes, some visitors will also become customers.  In those circumstances, the car park will usually be found to be a public place.  Similarly, if an occupier does not enforce a limitation of use of a car park to his or her customers, and the car park is, in fact, habitually used by members of the public for their own purposes, the car park will usually be found to be a public place.  For example, in R v Abrahams[34], it was an agreed fact that the licence to enter the car park was expressly limited to patrons but its use, in fact, was much wider.  The developments to which the Court of Criminal Appeal referred in Abrahams have had the effect, in practice, that the public often use large off-street car parks without let and hindrance for their own purposes.  For that reason, those types of car parks may well be characterised, on the traditional test, as public places. On the other hand, isolated use by a member of the public who ignores the occupier’s express or objectively implied conditions of use and which the occupier could not reasonably be expected to control will not constitute use by the public.The authorities cited above provide guidance on where the line will be drawn.[35]

    [34] [1984] 1 NSWLR 491 at 543 per O’Brien CJ of Cr D; 544 – 545 per Begg CJ at CL.

    [35]   Harrison v Hill [1932] SC (J) 13; R v Collinson (1931) 23 Cr App Rep 49; Bugge v Taylor [1941] 1 KB 198; Thomas v Dando [1951] 2 KB 620; McBain v Reyne (1998) 69 SASR 580; Dwyer v Police (2005) 90 SASR 593.

Legislative Policy

1. Caution must be exercised before expanding the connotation of the phrase “open to or used by the public” by reference to the road safety purpose of the Road Traffic Act 1961 (SA). Road is defined in the same way in the Road Traffic Act as it is in the Motor Vehicles Act.[36]  The Acts are in pari materia and there should be no difference in the application of the definition of road under those Acts. 

   [36] See section 5 of the Road Traffic Act and section 5 of the Motor Vehicles Act. The only difference is that the Road Traffic Act does not incorporate a “road related area” in the definition of “road”.

2. Plainly, the purposes of the Road Traffic Act and the Motor Vehicles Act are not identical.  The former addresses road safety and the latter imposes licensing, registration and insurance obligations on drivers and owners of vehicles.  Care must therefore be taken in expanding or restricting the definition of road by reference to the different legislative policies of each of those Acts.  In Ryan v Nominal Defendant,[37] Santow JA observed:

   If the expression “open to or used by the public” were given a broad interpretation, the gap between the Nominal Defendant’s liability and the liability of the other insurers would be minimised.  But error lies in narrowing the gap too far, by recourse to a purposive interpretation directed exclusively to protecting those injured by motor vehicles wherever an accident may befall.  So to do renders the qualifying words “open to or used by the public” meaningless.  There must a difference between a place “open to or used by the public” and merely a “place.”  If the legislature had wanted to make the Nominal Defendant’s liability co-extensive in that way that of ordinary insurers under the scheme, it could have said so plainly … Though a question of fact and degree, there must be a point where a person who is injured by a motor vehicle is unable to take comfort from the ready accessibility of insurance, under a discrimen based upon the public nature or character of the road…

   Second, the beneficial intent and ambit of the mandatory third-party insurance scheme must be given some force without going so far as to render a “place open to or used by the public” equivalent to any place.[38] 

   [37] (2005) 62 NSWLR 192.

   [38] Ibid at [61] and [63].

3. Registrable, but unregistered, vehicles are often found in car display rooms and yards and mechanical and panel repair workshops.  A finding that such places are, as a general rule, places open to or used by the public would effect a substantial shift in the balance referred to by Santow JA.

4. The competing legislative policies of the Acts may militate against a departure from the demarcation between public and private openness and use established by the authorities.

Application to the facts

1. The authorities referred to above show that it is necessary to consider both the terms upon which the occupier permits legal access (de jure) and the terms upon which persons actually have access (de facto). It is usual to consider the former aspect first and address the latter aspect if the area is not a road in the former sense. [39]

   [39]  Ryan v Nominal Defendant (2005) 62 NSWLR 192 at [70]-[82] per Santow JA (McColl JA agreeing).

The concrete loading bay

1. Mr Edwards was driving the forklift on the concrete loading bay at the time of the accident. The injury to Mr Williams occurred on the concrete loading bay. The question to be determined by the trial Judge was therefore whether the concrete loading bay was a “road” within the meaning of the extended definition in section 5(1) and (2b) of the Act.

2. The trial Judge found by reference to Mr Edwards’ evidence that only the B-doubles, semi-trailers and trucks of the transport operators used the concrete loading bay and the greengrocers and individual customers were confined to the gravel area or the bitumen area.[40] 

   [40] [2011] SADC 179 at [60]-[61] and [69].

3. The trial Judge held that the transport operators and their drivers were not members of the public and use of the loading bay for its intended purpose of loading carrier vehicles did not make it an area that was open to or used by the public.[41]

   [41] [2011] SADC 179 at [53] and [63].

4. We agree. On Mr Edwards’ evidence (as accepted by the trial Judge), the concrete loading bay was only open to and used by four transport operators for the collection of pallets containing vegetables by B-doubles, semi-trailers and large trucks. On Ms Pomery’s evidence (as accepted by the trial Judge), these vehicles were invited to attend at the premises at a pre-arranged time to collect pre-ordered vegetables. They were specific invitees subject to specific permission to enter. No other system could have worked in a practical sense within the limited and dangerous confines of the concrete loading bay. On both Mr Edwards’ and Ms Pomery’s evidence, other customers of Zerella and members of the public were not permitted to enter the concrete loading bay and did not do so (other than on isolated occasions).

5. It follows that Mr Edwards was not driving the forklift on a “road” within the extended definition of that term contained in section 5 of the Act.

The loading area encompassing the bitumen and gravel areas

1. The trial Judge did not rest his final decision upon his characterisation of the concrete loading bay as not being a “road”. Instead, he went on to consider whether the loading area in its entirety (encompassing the concrete, bitumen and gravel areas) was a “road” and concluded that it was not.

2. There was no need for the trial Judge to address this broader question, and it was undesirable that he do so, because the evidence was that Mr Edwards was driving the forklift on the concrete loading bay and not the broader loading area at the time of the accident which caused injury to Mr Williams.

3. Nor is it strictly necessary for us to address the broader loading area on the appeal. Nevertheless, the trial Judge made a decision on the broader loading area and the parties argued the question primarily by reference to the broader loading area. Accordingly, we express our conclusion in relation to the broader loading area that the appellants failed to prove that it is a “road” within the extended definition contained in section 5 of the Act.

4. We first address the question whether the loading bay was open to the public and in particular whether Zerella extended an invitation expressly or impliedly to the public to drive onto and park on the loading area.

5. On the findings of the trial Judge, Zerella permitted legal access to the shed complex only to specific invitees who had first checked in at the office and been given permission to proceed. This is clear from the large sign erected along the access road which directed all visitors to proceed directly to the office in the foreground in order to seek permission before proceeding to the shed complex in the background. It is also clear from the evidence of Ms Pomery as to company policy, which was expressly accepted by the trial Judge. A member of the general public who happened to visit the premises could be left in no doubt that permission was required from company personnel at the office before proceeding beyond the car park/office area to the shed complex at the rear. It follows that de jure permission was only granted to invitees on an individual basis who had established their specific reason for doing business with Zerella. Legal access was not available to members of the public at all.

6. Zerella and Mr Edwards argued before the trial Judge at first instance and on appeal that the loading area was used by the public on a de facto basis even if there was no de jure permission granted by Zerella. When considering the de facto position, the context is very significant.

7. The premises are situated in an out of the way location on a no through road. Members of the public would be unlikely to travel to the premises unless they had a pre-arrangement with Zerella of some sort (general or specific) to purchase vegetables from Zerella. The position is quite different from premises such as large car parks which members of the public will naturally tend to use unless constrained by the occupier. 

8. The large sign would naturally tend to inhibit a member of the public proceeding to the shed complex without first proceeding to the office and obtaining specific permission.

9. On entering the premises and proceeding to the large sign, the photographs admitted into evidence demonstrate that a member of the public would not discern either that vegetables were available for purchase or where they should go to make a purchase or collect vegetables. In particular, the loading area is not readily apparent as the place to go for that purpose.

10. To the extent that the loading area was open to or used by the transport operators using carrier vehicles, for the reasons given above in the context of the concrete loading bay, the availability to and use by transport operators of the loading area as a whole does not render it open to or used by the public.

11. To the extent that the loading area was open to or used by greengrocers using vans and utility vehicles, the situation is analogous to that in respect of the transport operators. The greengrocers were specific invitees who were required to pre-order vegetables and pre-arrange payment and a time for collection. They cannot be regarded as members of the public.

12. The position is less clear cut in relation to the individuals who attended to purchase and collect one or a few bags of vegetables for domestic consumption. It appears that, in contrast to the transport operators and greengrocers, they did not pre-order or pre-arrange with Zerella a collection time.

13. In theory, the question whether these persons comprised the public might have depended on matters of degree including the width of the class of persons attending, their relationship to Zerella owners and employees, the degree to which they first attended at the office to obtain permission to proceed, the constraints upon their movements within the premises and other such matters. However, the onus of proof that the loading area was open to or used by the public clearly lay upon the appellants in asserting that proposition as against the Nominal Defendant. Further, knowledge of these matters lay exclusively within the realm of the appellants.

14. The evidence adduced from Mr Edwards suggested that the individuals attending  to purchase vegetables were confined to specific regular customers who became customers due to a special anterior relationship with Zerella (commercial customers, friends of the boss, friends of Zerella employees, etc) rather than merely because they were members of the public who wished to purchase vegetables.  The evidence adduced from Ms Pomery suggested that these individual customers were first required to report to the office for permission to proceed to the shed complex (and the loading area) and Mr Edwards, who worked in the loading area, was not proved to be in a position to know what those customers had done and whether they had visited the office before arriving at the loading area.  The evidence adduced from Ms Pomery suggested that the licence to enter the Zerella premises was in fact closely confined and the actual use closely limited. Against the background of the isolated location of the premises, the existence of the large sign and lack of an obvious reference point to the loading area referred to above, the appellants failed to prove that the loading area was open to or used by members of the public.

Conclusion

1. The forklift was not being driven on a road within the extended meaning of “road” (either a “road or “road related area”) of section 5 of the Act and the trial Judge was correct in answering the preliminary question to that effect.

2. We would dismiss the appeal.

1. Gray J:           This is an appeal against a decision of a Judge of the District Court on a preliminary issue arising in civil proceedings.[42]

   [42]   Williams v Zerella Holdings Pty Ltd & Ors [2011] SADC 179.

Introduction

1. The plaintiff and first respondent, Maurice Clive Williams, was injured when struck by a pallet dislodged by an uninsured forklift.  The forklift was driven by Darren Ian Edwards, a defendant and appellant.  The plaintiff’s injury occurred in the loading bay area adjacent to a large packing shed on property owned by Zerella Holdings Pty Ltd, the other defendant and appellant.  The second respondent in these proceedings is the Nominal Defendant.  The plaintiff joined the Nominal Defendant on the basis that his injuries were caused by an uninsured motor vehicle on a road or road-related area.

2. The preliminary issue, the subject of the trial and this appeal, concerns the meaning of the word “road” as used in section 116 of the Motor Vehicles Act 1959 (SA).[43] In particular, as the plaintiff’s injury was alleged to be caused by or arose out of the use of an uninsured motor vehicle, did it occur on a “road” or a “road-related area” as defined in subsections 5(1) and 5(2b) of the Act.

   [43] Section 116 of the Motor Vehicles Act 1959 (SA) relevantly provides:

   …

   (2)A person claiming damages in respect of death or bodily injury caused by or arising out of the use of an uninsured motor vehicle on a road may bring an action for the recovery of those damages against the nominal defendant.

   ...

3. This Court is to decide whether the injury caused to the plaintiff was caused by or arose out of the use of an uninsured motor vehicle on a “road” or “road-related area” within the definitions provided by the Motor Vehicles Act.

4. The District Court Judge concluded that the loading bay area on the Zerella property was not a road or a road-related area.

The Statutory Scheme

1. Section 5 of the Motor Vehicles Act is an interpretation section which, as amended with effect from 17 June 2001, relevantly provides:

   (1)In this Act, unless the context otherwise requires or some other meaning is clearly intended—

   road means an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving of motor vehicles;

   road-related area means any of the following:

   (a)     an area that divides a road; or

   (b)     a footpath or nature strip adjacent to a road; or

   (c)an area that is not a road and that is open to the public and designated for use by cyclists or animals; or

   (d)an area that is not a road and that is open to or used by the public for driving or parking motor vehicles; or

   (e)any other area that is open to or used by the public and that has been declared by the Minister under section 6 to be a road-related area;

   …

   (2b)A reference in this Act to a road includes a reference to a road-related area unless it is otherwise expressly stated.

2. The terms of the 2001 amendment are significant.  The earlier definition of “road” was in materially different terms, defining a “road” as “any other place commonly used by the public or to which the public are permitted to have access.”  The definition of “road-related area” had no progenitor.  As a consequence, authorities dealing with the repealed provision are of limited use and are to be treated with considerable care. 

3. It would appear that one purpose of the amendment was to simplify the concept of “road”.  As a consequence, the amendment facilitates the protection of the public in a number of ways – by requiring that motor vehicles be insured when on roads, including road-related areas, so that claims for damages by persons injured by motor vehicles are satisfied out of the compulsory third party fund managed by the Motor Accident Commission and to ensure that the compulsory third party fund receives premium income from those who should register and insure their vehicles.

4. When construing the above extracted definitions in section 5 of the Motor Vehicles Act it is important to recognise that subsections (c) and (d) of the definition of “road-related area” both commence with the words “an area that is not a road”.  The critical difference between a “road” and a “road-related area” appears to turn on the purpose for and use of the area in question.  A “road” contemplates an area developed for, or having as one of its main uses, the driving of motor vehicles.  Subsection (d) of the definition of a “road-related area” contemplates an area developed for the driving or parking of motor vehicles.  To my mind, this provides the key to the interpretation of subsection (d) that is of particular importance in this appeal.  A question arises as to whether the road leading to and continuing into the loading bay is a “road-related area” – an area that is open to and used by the public for driving or parking motor vehicles. 

The Facts

1. The Zerella premises lie on the outskirts of Virginia in a semi-rural area.  The premises are reached by travelling on a sealed public road.  That public road continues as a sealed road into and through part of the premises.  Within the Zerella premises, the sealed road passes by an office and a parking area adjacent to the office and leads to and continues into an area of shedding that includes the loading bay. 

2. The Judge found the loading bay to include all of the covered area of the loading bay, all of the concrete apron to the south of the covered area, the bituminised area to the south of the concrete apron, and that part of the levelled dirt and gravel area on which vehicles were likely to travel during the course of loading and unloading.

3. The loading bay is of a sufficient size to accommodate a number of B-double vehicles as well as standard motor vehicles.  The general purpose of the loading bay is to provide for the unloading and loading of vehicles with agricultural produce. 

4. The evidence established that a wide range of motor vehicles regularly used the sealed road into and through the premises and the loading bay area.  Those vehicles comprised B-doubles, semi-trailers, trucks, vans, utilities and sedans.  Those vehicles would, from time to time, drive into the area of the loading bay and park.  In other words, the area leading into and the area of the loading bay were used for the driving and parking of motor vehicles.  This was the very purpose of the loading bay and the surrounding area.

5. Many of those attending in vehicles were doing so by prearrangement to purchase and collect vegetables.  In addition, there were customers or people “off the street” who came in to buy smaller quantities of vegetables without any prearrangement with the defendant.

6. It was the submission of Zerella that in the above circumstances, the loading bay area was either a “road” as expressly defined or alternatively, a “road-related area” under the extended definition of a “road”.  It was the submission of the Nominal Defendant that the loading bay area was not “open to or used by the public” and that, as a consequence, the area was neither a “road” nor a “road-related area”.

7. It is convenient at this point to discuss the evidence and the findings of the District Court Judge in more detail. 

8. The business of Zerella involved the buying, washing, packing and selling of potatoes, onions and carrots.  The Zerella premises occupied a significant area, much of which was used for the production of vegetables. 

9. At the time of the incident the subject of these proceedings, near the junction of Johns and Angle Vale Roads, there was a sign which advised that the office and packing shed of Zerella were situated one kilometre to the north along Johns Road.  The sign contained the words “Growers, Packers, Distributors and Exporters” and the words “Potatoes, Carrots and Onions”.  There was nothing on the sign to suggest that the premises were either open to or not open to the public.

10. The Zerella property may be reached by travelling on Johns Road which, as mentioned above, continues into the Zerella property.  The evidence at trial suggested that the gates at the entrance were closed at night but were otherwise open.  At a distance of about 100 metres along the roadway from the gate, there was a further sign which read “All drivers and visitors please enquire at office for permission to enter packing shed”.  The loading bay was situated a further 100 metres into the property. 

1. The trial Judge described the area where the accident occurred in the following terms:[44]

   The specific area where the accident occurred was the loading bay which is about 200 m West of the gate. The exact dimensions of the loading bay were not given in evidence, but the photographs suggest that the covered area was about 200' x 200' square. On the southern side the loading bay was open. It was closed on the other three sides. Looking into the covered area from south to north towards the rear right-hand (northwest) corner there was a prefabricated office which extended from the eastern wall of the loading bay building for about 25 feet. In about the middle of the northern rear wall of the loading bay building there was a large door which gave forklifts access to a packing shed north of the loading bay. On the north eastern side of the northern wall of the loading bay there was another prefabricated office.

   …

   The floor of the loading bay was covered with a concrete slab which extended a further 7 metres into an uncovered area south of the roofline on the southern side of the shed. From the southern boundary of the concrete slab there was a bitumenised area which extended for a further 12 m or so to the south. South of that bitumenised area there was a further levelled area covered by a surface of dirt and gravel.

   All of the concreted area, the bitumenised area and the area with the surface of dirt and gravel could be used to load and unload vehicles. I have treated all of that area as the loading bay and as the area where the incident occurred.

   The photographs show a yellow ramp with a docking bay on the western side of the unloading shed. The evidence establishes that the ramp was not in existence at the relevant time. At the relevant time forklifts loaded and unloaded vehicles from the ground alongside of the vehicles. The vehicles being unloaded could be parked beyond the concrete apron onto the bitumenised area and if necessary on to the dirt and gravel area.

   [Footnote omitted.]

   [44]   Williams v Zerella Holdings Pty Ltd & Ors [2011] SADC 179, [20], [22]-[24].

2. The Judge posed the question to be determined as follows:[45]

   The question to be determined is whether the position where the accident occurred was a "road" or a "road related area" within the definitions in the Motor Vehicles Act. I have proceeded on the basis that the area where the incident occurred was the whole of the loading bay and that for present purposes it is unnecessary to consider the remainder of the Zerella Holdings property. For the reasons which follow I suspect that the result would be the same if I regarded the whole of the Zerella Holdings property as the relevant area. [Counsel], who appeared for the Nominal Defendant, argued that everything inside the gate on Johns Road was private property and was not open to the public.

   [45]   Williams v Zerella Holdings Pty Ltd & Ors [2011] SADC 179, [30].

3. Evidence was given by the defendant Edwards, an employee of Zerella.  At the time of the incident, he was working in the area of the loading bay, engaged primarily in the loading of trucks with potatoes, carrots and onions.  At the time of the incident the subject of these proceedings, he was a forklift driver and at the time of trial, he was a truck driver.  At the time of the incident, Mr Edwards had been employed by Zerella for four or five years.  At that time, he worked six days per week, Monday to Saturday, working from about 6.30 am until about 5.00 pm.  From time to time he worked on Sundays from 8.00 am to about 12.00 pm. 

4. Mr Edwards gave evidence of the use of the loading area by vehicles being driven into and out of the area as well as parking in that area.  He described the range of vehicles as including B-doubles and semi-trailers, both from a number of operators.  These vehicles would park in the area of the covered loading bay area and from time to time partly on the concrete apron and partly on the area of sealed bitumen.  Mr Edwards also described vans attending from time to time and that these vans would be parked entirely on the sealed bitumen area.

5. Mr Edwards observed “utes” in the vicinity of the loading area and these vehicles would park entirely on the sealed bitumen area.  At times, he observed the utilities parked entirely on the dirt area.  Again, he spoke of the utilities being there up to 10 times a day.  Mr Edwards also gave evidence of customer vehicles attending the loading bay area.  By the expression “customer vehicles” he was referring to “[j]ust people off the street”.  He would observe about 10 of these vehicles a day and they would at times park their vehicles in the loading bay on the area of dirt adjacent to the sealed bitumen. 

6. Mr Edwards then addressed motor vehicles described as “sedans, … everyday car[s]”.  These cars would park entirely on the sealed bitumen.  Again he observed cars being in that vicinity up to 10 times a day.  When asked how those vehicles would be loaded, he replied “[his supervisor would] just drive out to them, see them, get their order, drive it out to them, and they threw it in the boot or back seat”.

7. The trial Judge accepted the evidence of Mr Edwards as to the types of persons who would go on to and into the loading bay for the purpose of making small purchases of vegetables.  The Judge summarised this evidence in the following terms:[46]

   Mr Edwards gave evidence of another class of purchaser of produce. He described the presence of vans, utilities and sedans which generally parked on the dirt area or on the bitumen road, although they would park in the loading bay if there was room for them. Mr Edwards described the drivers of those vehicles as customers "like people that own vegetable shops" who collected vegetables for their shops. There were also people such as farmers who purchased waste product for feed and other casual customers who purchased bags of carrots and onions or potatoes. Such  persons would "just drop in and grab a little bit of this, a little bit of that sort of thing, a bag of this, a bag of that, a couple of bags of this, a couple of bags of that. The ones in the utes and the vehicles, that sort of thing would pick up a pallet or like a small pallet, sort of thing".

   Mr Edwards said that the vehicles parked entirely on the bitumen in the loading bay or entirely on the dirt area, but not on the concrete. His supervisor looked after such customers. On their arrival the supervisor would drive out on his forklift to greet them, take their order, return to the packing shed to assemble the order, and then drive back out to the customers.

   Mr Edwards knew some of the people who came in the normal cars. They included "Owners of grocery stores, friends, friends of the boss, friends of other people". He said "Most of them were actual customers who had been going there for 10 or 20 years and others were friends or friends of friends and that sort of thing". They were people who knew that if they came in they would be able to purchase produce. Those people paid the fixed price for the goods. Every day prices were fixed and the price list was placed on a board for those persons.

   Mr Edwards was asked what quantity the private customers purchased and he replied "The ones that come in their cars, they will just drop in and grab a little bit of this, a little bit of that sort of thing, a bag of this, a bag of that, a couple of bags of this, a couple of bags of that. The ones in the utes and the vehicles, that sort of thing would pick up a pallet or like a small pallet, sort of thing". The purchases could consist of a mixture of red onions, white onions, carrots "all sorts of gear". The various items were placed on the pallet by Mr Edwards’ superior.

   On arrival those customers would go in to the loading bay and grab Mr Edwards or his superior to obtain attention. If they went into the loading bay Mr Edwards would take them back out onto the roadway because for their own safety they shouldn't be allowed in the loading bay. The customers never went to the packing shed to inspect what was available.

   If a person did walk through the loading bay Mr Edwards could walk up and ask who they were and what they were doing. He said that if he didn't know who they were he would just say "See you later" and send them out. If they had no business at all at Zerella’s he would send them out the front gate.

   [Footnotes omitted.]

   [46]   Williams v Zerella Holdings Pty Ltd & Ors [2011] SADC 179, [68]-[73].

8. In Schubert v Lee,[47] the High Court considered the meaning of the words “open to or used by the public”.  Latham CJ, Rich and Dixon JJ said:[48] 

   The definition contained in the statute might very readily have been limited to "public" streets, roads, lanes, &c., but such a limitation has not been included in the definition. The words "open to or used by the public" are apt to describe a factual condition consisting in any real use of the place by the public as the public—as distinct from use by licence of a particular person or only casual or occasional use. It may be necessary to distinguish places open to members of the public as such from places left open by the owner but obviously intended only for the use of a particular description of person, for example, visitors to his shop or other premises. Prima facie the words of the section mean streets, &c., which actually are open to or used by the public, so that there is some need for protection of the public in the use of such streets, &c. This is a view which has been taken of not dissimilar provisions contained in the Road Traffic Act 1930 of the United Kingdom, where a definition of the term "road" includes the following words—"and any other road to which the public has access." It has been held by the Court of Session that a road falls within the definition if the public in fact has access to it, even though it is privately owned, and the public has no right of access to the road. It was so held in the case of Harrison v. Hill, and that decision has been followed in England in relation to the same Act in the case of Bugge v. Taylor. In our opinion the words "open to or used by the public" should, as the Full Court has held, be construed in the same way, so that a lane falls within the definition if in fact it is "open to or used by the public," whether or not there is a public highway over it. There was evidence that the lane in question in this case was in fact regularly used by the public.

   [Footnotes omitted.]

   [47]   Schubert v Lee (1946) 71 CLR 589.

   [48]   Schubert v Lee (1946) 71 CLR 589, 592-593.

9. The District Court Judge reviewed the above authority and subsequent authorities both in New South Wales and South Australia.  Ultimately, the Judge applied the following observation of Debelle J in McBain v Reyne:[49] “the issue depends very much on the facts and circumstances of each case and, in particular, on the extent of the use by the public”.[50]  The Judge then reviewed the evidence led in the trial and concluded:[51]

   The resolution of this case depends upon whether the attendance of the classes of people whom have been described means that the loading bay was an area open to or used by the public.

   Unless a person had some business there would have been no reason for a person to be in the loading bay nor indeed on the property at all. There was no evidence that strangers who had no business on the property wandered around the loading bay. The only evidence of persons going into the loading bay was evidence of persons who entered the loading bay for the specific reasons which have been described.

   Because of its relatively remote location it is unlikely anybody would have found their way to the property without some specific reason.

These were the essential findings that led the Judge to conclude that the incident said to have caused injury to the plaintiff occurred in an area that was neither a “road” nor a “road-related area” within the meaning of those words as appearing in section 5 of the Motor Vehicles Act. 

[49]   McBain v Reyne (1998) 69 SASR 580.

[50]   McBain v Reyne (1998) 69 SASR 580, 602.

[51]   Williams v Zerella Holdings Pty Ltd & Ors [2011] SADC 179, [80]-[82].

The Appeal

1. Central to the determination of this appeal is the construction of section 5(1) of the Motor Vehicles Act and the meaning of the words “road” and “road-related area”.  It is to be accepted that the definition of the word “road” is in essentially the same terms as that considered by the High Court in Schubert v Lee.[52] However, it is clear that Parliament saw a need to extend the reach of the legislation to include “road-related area” where appropriate. Further, it is to be borne in mind that section 21 of the Acts Interpretation Act 1915 (SA) deems an Act to be always speaking. That section provides:

   Every Act will be considered as speaking at all times, and every enactment, whether expressed in the present or the future tense, will be applied to the circumstances as they arise, so that effect may be given to each Act and every provision according to its spirit, true intent and meaning.

   [52]   Schubert v Lee (1946) 71 CLR 589.

2. The maxim that legislation is deemed to be always speaking is well established, particularly where technological changes lead to circumstances that could not have been envisaged when the legislation was enacted.  In Chappell & Co Ltd v Associated Radio Co of Australia Ltd,[53] public radio broadcasts were held to breach the Copyright Act 1912 (Cth) despite the suggestion that radio broadcasts could not have been contemplated at the time that the Act was passed. The Court observed:[54]

   …[I]t was suggested that at the time of the passing of the Copyright Act 1912 acoustic representations by means of broadcasting were unknown, and could not have been contemplated. The correctness of the suggestion may be doubted … But, apart from this, it was not disputed that if things not known at the time of the coming into operation of an Act fall on a fair construction within its words, they should be held to be included. The things such as motor cars, now held to be included in the word “vehicle,” afford a good illustration. And so here the general expressions such as “does anything,” “performance,” “acoustic representation,” are sufficiently wide in their natural meaning to apply to the present case.

   [53]   Chappell & Co Ltd v Associated Radio Co of Australia Ltd [1925] VLR 350.

   [54]   Chappell & Co Ltd v Associated Radio Co of Australia Ltd [1925] VLR 350, 361.

3. The above maxim and section 21 of the Acts Interpretation Act have direct application to the interpretation of the extracted provisions from the Motor Vehicles Act.  The “road” of the 1940s in many respects is very different to the “road” of 2005.  This would appear to be recognised by the observations in Schubert v Lee[55] by the reference to the factual conditions of the particular case.  Later authorities have emphasised that the test is simply: “has the place been commonly used by the public”.[56]  This test is essentially a question of fact.[57] 

   [55]   Schubert v Lee (1946) 71 CLR 589.

   [56]   McBain v Reyne (1998) 69 SASR 580, 600.

   [57]   McBain v Reyne (1998) 69 SASR 580, 600.

A Road-Related Area

1. As discussed above, the driver of a motor vehicle wishing to enter the Zerella premises would travel to the junction of Johns and Angle Vale Roads and would there be directed by a sign advising that the office and packing sheds of Zerella were situated one kilometre to the north along Johns Road.  The motorist would then proceed north along Johns Road which is a sealed bitumen roadway.  Johns Road comes to an end but continues as a bitumen sealed road into the Zerella property.  The motorist would travel on the bitumen sealed road within the Zerella property.

2. The loading bay area was used as a location for the loading and unloading of B-doubles and semi-trailers.  However, it was also used as a point at which small quantities of vegetables could be purchased.  As Mr Edwards pointed out in evidence, there was a pricelist on display.  Customers entered the Zerella property from the main road and continued as the bitumen sealed roadway extended through the premises.  They drove past the office and parking area and continued to the loading bay area.  They parked their cars in the loading bay area, made their selection and the goods were then placed on the back seat or in the boot.  Utilities also arrived, parked in the loading bay area, and produce was loaded on occasion using pallets. 

3. In the present proceeding the evidence established that vehicles made substantial use of the loading bay area.  This appears to have been used for six days of the week.  It is difficult to be precise but it would appear that, in all, hundreds of vehicles would drive into the loading bay area each week.  This, on the evidence, would include up to 10 utilities and 10 “everyday car[s]” each day. 

4. As earlier indicated, the Judge accepted the evidence of Mr Edwards as to the use by the public of the loading bay area.  The Judge made findings in accordance with that evidence as to the day to day use by the many types of vehicles that drove into and parked in the loading bay area.  The Judge then placed weight on the evidence as to Zerella’s policy concerning people entering the premises.  It may be accepted that it was open to the Judge to find that it was Zerella’s policy not to allow people to simply come onto the property independent of staff and wander about without any apparent purpose.  However, the evidence of Mr Edwards attested to what in fact occurred and had occurred, for many months, if not years, on a daily basis. 

5. The Judge under appeal extracted from section 5 of the Motor Vehicles Act the definitions of “road” and “road-related area”.  The Judge posed the question to be determined as follows: “whether the position where the accident occurred was a ‘road’ or a ‘road related area’ within the definitions in the Motor Vehicles Act”.[58]  Having done so, the Judge did not critically consider the terms of the definitions and in particular, the difference between a “road” and a “road-related area”.  The Judge concentrated on the meaning of the word “public” and the phrase “open to and used by the public”.  The Judge’s analysis did not address the fact that a “road-related area” is not a “road”.  None of the authorities addressed by the Judge concerned a “road-related area” as defined by the Motor Vehicles Act.  To my mind, the Judge in this respect failed to consider the evidence and make findings that would allow a conclusion to be reached as to whether or not a loading bay is a “road-related area”. 

   [58]   Williams v Zerella Holdings Pty Ltd & Ors [2011] SADC 179, [30].

6. As discussed above, the evidence established that a wide range of vehicles would drive into the area of the loading bay and park.  Although many of the drivers were attending by prearrangement to collect vegetables, there were up to 10 sedans each day in which the drivers were “just people off the street”.  There was also evidence of up to 10 utilities per day.  This evidence establishes that the loading bay area was used regularly by members of the public and, to use the words of Latham CJ, Rich and Dixon JJ, did not just consist of use by licence of a particular person or only casual or occasional use.  I consider that the evidence was sufficient to satisfy the requirement of “open to or used by the public” which forms part of the definition of “road-related area”.  In my view, the loading bay area was “open to or used by the public”.

7. The loading bay area was not developed for the driving of motor vehicles and its main use was not for the driving of motor vehicles. I therefore consider that the loading bay area was not a “road” as defined in section 5 of the Motor Vehicles Act. 

8. I turn now to the definition of “road-related area”. As earlier mentioned, the definition of “road-related area” includes “(d) an area that is not a road and that is open to or used by the public for driving or parking motor vehicles”. In my view, the loading bay area falls squarely within this definition as the very purpose of the loading bay and surrounding area was for the driving and parking of motor vehicles. It was not a road on which motor vehicles were to be driven, but it was an area into which motor vehicles would drive for the purpose of parking. I also consider that the loading bay area was open to and used by the public. This earlier observation is very much a matter of assessing the facts and circumstances of the particular case. When regard is had to the semi-rural area in which the Zerella premises were located, the attendance by the public on a daily basis for at least six days per week was substantial. Accordingly, I am of the view that the loading bay area was a “road-related area” as defined in section 5 of the Motor Vehicles Act.

Conclusion

1. For the above reasons, I have reached the conclusion that the loading bay area was at the time of the accident a “road-related area”.  I would allow the appeal and set aside the order of the District Court Judge.  The Nominal Defendant should remain a party to the proceedings.