When is a road a road? When is a road a road?

When is a road a road?

21 March 2018 | Compulsory Third Party (CTP)
Tags CTP

Not every car accident occurs on a public street, highway or road.

In South Australia “road” and “road-related area” are defined by section 5(1) of the Motor Vehicles Act 1959 (SA) (“the Act”) 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:
  1. an area that divides a road; or
  2. a footpath or nature strip adjacent to a road; or
  3. an area that is not a road and that is open to the public and designated for use by cyclists or animals; or
  4. an area that is not a road and that is open to or used by the public for driving or parking motor vehicles; or
  5. 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;

Section 5(2)(b) of the Act provides that, “a reference in this Act to a road includes a reference to a road-related area unless it is otherwise expressly stated.”

Similar definitions exist across the jurisdictions in Australia, including New South Wales.

The definition of a road is important to any claim under the Compulsory Third Party insurance scheme against a Nominal Defendant. Section 116(2) of the Act provides:

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.

To bring a claim against the Nominal Defendant, the incident causing the damage must occur on a road.

The following three cases will highlight some factors which fall into consideration to answer “when is a road, a road?”

Zerella Holdings Pty Ltd v Williams (2012) 61 MVR 508

Zerella Holdings Pty Ltd (“Zerella”), was a vegetable producer and supplier who employed Mr Edwards ("Edwards") as a forklift driver to load produce into transport vehicles. Mr Williams, was injured in a loading bay of Zerella’s premises during the operation of a forklift driven by Edwards. Mr Williams brought actions against Zerella and Edwards, but also joined in the Nominal Defendant. 

As to the claim against the Nominal Defendant, the preliminary issue for the Trial Judge was whether the loading bay was a “road” or “road-related area” as defined by Section 5 of the Motor Vehicles Act 1959 (SA) and whether the loading bay area was a place “open to or used by the public”.

In the first instance, the Trial Judge found that Williams was injured on a road and accordingly could bring an action against the Nominal Defendant.

Upon appeal, Chief Justice Kourakis and Justice Blue (forming the majority), dismissed the appeal and concluded that in this instance the injury did not occur on a “road”. In reaching this decision they focused on the following factors:

  1. Whether the road is open to the public (section 5(1)(d) of the Act). They found it was not necessary to consider whether the land was publicly owned, or had a public right of access.
  2. The wording of “open to or used by the public”.  They noted that in the case of private land, “open to… the public” refers to an invitation to members of the public by the private occupier. There is not a question of whether it is physically open to the public, but the absence of a physical barrier may be a factor in considering whether there has been an invitation to the public.
  3. The distinction between a general unfettered invitation to the public and a series of invitations to specific invitees (ie the horticultural transporters).

In this instance, the concrete loading bay was only open to, and used by, four transport operators for the collection of horticultural products. Furthermore, these vehicles were invited to attend at the premises at a pre-arranged time to collect pre-ordered vegetables. They were therefore specific invitees subject to specific permission to enter.

The Full Court found that when Edwards was driving the forklift in the loading bay, he was not doing so on a “road” and Williams could not pursue the Nominal Defendant.

McBain v Reyne (1997) 27 MVR 163

Mr McBain ("McBain"), aged 14, was a pillion passenger on a motorcycle driven by a friend, Mr Reyne who was an employee of the vineyard. They collided with a utility at an intersection within the vineyard. The McBain sustained serious injuries and unfortunately, was not wearing a safety helmet. The collision occurred at an intersection of two roads alongside the vines consisting of compacted earth. The roads were used by employees and independent contractors and occasionally by invited visitors.

The McBain brought an action against the Nominal Defendant as the motorcycle was uninsured.

Again, in this scenario, the Trial Court found that the roads running between the vines did not constitute a “road” for the purposes of the Act since the vineyards did not expressly permit the public to access it. The reasoning of Justice Debelle is as follows:

“Despite the fact that there were no gates or barriers to access the two vineyard roads which allowed movement to and from the main road between Naracoorte and Padthaway I do not think it is possible to find that there was any implied permission. It was readily apparent that the land was privately owned and used for vineyard purposes. The use of the vineyard roads by employees, independent contractors and their employees and infrequently by persons visiting employees and by other visitors was a use by special classes of the public, they were permitted peoples based on who they were. For these reasons, the vineyard roads were not places to which the public were permitted to have access.”[1]

As such, the Nominal Defendant was found not to have been liable as the site of the crash did not constitute a road.

Ryan v Nominal Defendant (2005) 43 MVR 77

Although this matter is from New South Wales, section 3 of the Motor Accidents Compensation Act 1999 (NSW) refers to the definitions of “road” and “road related area” at section 4 (1) of the Road Transport Act 2013 (NSW) which uses the same definition as the South Australian Act. The Road Transport Act 2013 (NSW) was enacted in 2013, and this case is from 2005. However, t the time, section 3 of the Motor Accidents Compensation Act 1999 (NSW) referred to the definition of “road related area” as under section 4 (1) of the Road Transport (Vehicle Registration) Act 1997 (NSW), which again is the same definition as the current New South Wales and South Australian legislation.

This matter was an appeal from the decision of the Trial Judge who dismissed the claim against the Nominal Defendant on the basis the accident did not occur on a road.

Mr Ryan ("Ryan") was struck and severely injured in a collision with an uninsured motorcycle which was ridden by a friend on a dirt track located on private land. The track was regularly used by people for trail bike riding and walking. The owner of the land discouraged usage but the measures that were taken were ineffective.

Ryan claimed damages against the Nominal Defendant on the basis that the track was a “road”, for the reason that it was “open to or used by the public”.

This matter actually departs from the cases above and approves this as a “road” for the purposes of the legislation. In doing so the court considered the following matters:[2]

  1. the track was used by various different people for various different purposes, in circumstances of quite ineffective prohibition by the owner, who were engaged in a range of activities, principally trail bike riding and walking, to which the track was adapted;
  2. the track was used relatively frequently and regularly by those people for those purposes;
  3. among these were local youths who congregated there on most school afternoons and on weekends for periods of a few hours or more, walkers were to be found with similar frequency and locals dumping rubbish did so often enough for piles of rubbish to build up;
  4. these groups of individuals may properly be considered to constitute “the public” being relevantly those taking advantage of the place for the purposes to which it was adapted; and
  5. the variety and frequency of that usage, and the ineffectiveness of measures to prevent it, were sufficient to countervail the trespassory nature of the uses as would otherwise tell against a “use by the public”.

Ultimately it was the frequency of usage by the public that allowed this to be considered a “road”, despite the wishes of the owner.


The question of when a road is a road for the purpose of a CTP claim is a matter of fact and degree. The level of usage must be sufficient to demonstrate that it is more than just a private space limited by invitation (Zerella Holdings Pty Ltd v Williams (2012) 61 MVR 508) or an implied right (McBain v Reyne (1997) 27 MVR 163) and must be something closer to frequent and varied use.

The matter of Zerella Holdings Pty Ltd v Williams (2012) 61 MVR 508 also supplied the following succinct list of examples on what has been held to constitute a road.

The following places have been held to be roads.

  • A hotel car park: Elkins v Cartlidge [1947] 829. R v Waters (1963) 47 Cr App R 149; R v English [1970] 788. Sandy v Martin [1974] RTR 263. R v Abrahams [1984] 491. Marklew v Allen (1974) 32.
  • The forecourt of an hotel: Bugge v Taylor [1941] 198.
  • A carpark for shops including a multi-storey carpark: Ex parte Halliday (1893) 421; Reid v Nominal Defendant (1968) 601; Cutter v Eagle Star Insurance Co Ltd [1997] 1082.
  • The driveway and forecourt of a service station: Montgomery v Loney [1959] N I 171. O'Mara v Lowe; Ex parte O'Mara (1971) 284. Atkins v Flack (SC(NSW), 24 September 1976, unreported); Dowling v Nominal Defendant (1975) 17.
  • Roadways within a drive-in theatre: Dobell v Petrac [1961] VR 70.
  • A wharf: Urwin v Duperouzel [1960] WAR 216.
  • A quayside: Newcastle Upon Tyne Corp v Walton (1957) Crim L R 479.
  • A lane: Cubbage v Boyland [1960] WAR 161. 
  • A caravan park: DPP v Vivier [1991] 4 All ER 18.
  • A public reserve: Hyde v Kenyon (1957) 185.

The following have been held not be a road as they were not commonly used by the public:

  • A carpark for a block of residential flats: Winbank v Baker (1993) 112 FLR 466; 17 MVR 298.
  • A carpark used by members of a bowling club: Griffin v Squires [1958] 1106.
  • A courtyard some distance from a road: Purves v Muir [1948] SC (J) 12.
  • In Elliott v Henschke (983) 36 SASR 481, it was held that a large clay pan near a country town used by motorcycle riders for recreational riding was not a road but the decision was decided on the narrow evidentiary point that it had not been proved that the public commonly used the area.
  • A road in a housing estate, used only by those who reside on the estate or their visitors, and not by the public generally, has been held not to be a road: Deakin v AT (a minor) [1976] RTR 244; see also Lock v Leatherdale DC [1979] RTR 201. However, 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: see also Adams v Commissioner of Police [1980] RTR 289.
  • There are decisions holding that the forecourt of a shop and a service station are not roads: for example, Thomas v Dando [1951] 620 and Marsh v Arscott [1982] Crim L R 827. Those cases were decided on their own particular circumstances and the decisions are another reminder that the question whether a place is commonly used by the public is a question of fact.

[1] McBain v Reyne (1997) 27 MVR 163, 185
[2] Ryan v Nominal Defendant (2005) 43 MVR 77, [134]


Ben Tollner-Atkinson

Ben Tollner-Atkinson