085-NLR-NLR-V-72-A.-W.-JOACHIM-Inspector-of-Police-Appellant-and-L.-D.-DHARMADASA-Respondent.pdf
G. P. A. SILVA, J.—Joachim v. Dharmadasa
39D
Present : G. P- A. Silva, J.
A. W. JOACHIM (Inspector of Police), Appellant, and
D. DHARMADASA, Respondent
S. C. 20(G6—M. C. Horana, 37433
Motor vehicle—Charge of negligent driving—Evidence that accused did not have full
control of steering wheel—Effect—Motor Traffic Act, s. 240.
A person who is at tho steering wheel of a motor vehicle is not liable to beconvicted of the offences of negligently driving that vehicle unless he has fullcontrol of the vehicle at tho wheel, whether tho vehicle moves by mechanicalpropulsion or by gravitation. He cannot bo convicted if he is deprived of thecontrol of the vehicle by an external agencj'.
The accused-respondent was charged with having negligently driven a motorvehicle on a public highway. Tho evidence showed that at the time of theaccident-tlie accused .was at the driving-wheel-and-tlmt.the_v_ehiclo _was_ beingpushed backwards up a hill by four or five peoj^lo for tho purpose of getting thoengine started, when it struck a pedestrian who was legitimately using theroad on his correct sido and injured him.
Held, that, at the moment of the impact, there was hardly anything which theaccused was doing of his own volition, opart from sitting at the driving scat andholding the steering wheel. In the circumstances, the accused was entitled tobe acquitted.
Held further, that when tho character or attribute of mechanical propulsionis absent in a vehicle even for the time being, such vehicle cannot' be regardedas a “ motor vehicle ” within tho meaning of that term in section 240 of theMotor Traffic Act.
Appeal from a judgment of the Magistrate’s Court, Horana.
B. T. Premaratne, Senior Crown Counsel, with F. C. Perera-, CrownCounsel, for the complainant-appellant.
TV. Athiilatkmudali, for the accused-rcsjmndent.
Cur. adv. vult.
August 2S, 1966. G. P. A. Silva, J.—
The accused-respondent in this case was charged on two counts, namely,that he drove a van on a public highway negligently or, in the alternative,that he drove it without taking such action as may be necessary to avoidan accident. After trial he was acquitted by the learned Magistratewho held that in the circumstances of this case, though the drivermanipulated the steering wheel, the vehicle had been set in motion notby the driver but by an outside agency, namely, those who pushed it, and
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G. P. A. SILVA, J.
'onchim v. Dharmadasa
that the driver was not therefore driving the vehicle. The complainant,with the sanction of the Attorney-General, has appealed against theacquittal by the Magistrate.
The main question that arises for consideration is whether a personcan be said to drive a motor vehicle when he is at the wheel and thevehicle is being pushed in the circumstances borne out by the evidenceof the witnesses. The evidence on which the learned Magistrate found itprudent to act was that at the time of the accident in question the vehicle,lorry No. Cir 46S3, was being pushed back by four or five people for thepurpose of getting the engine started. It is not clear from the evidencewhat the state of the road was where this accident occurred but theaccused’s evidence was that the vehicle was being pushed back up a hilland thi3 position was suggested in the cross-examination of the victimof the accident and the Police Officer. Nor has it been made clear whythe vehicle was being pushed up a hill for the purpose of starting, andthe reasonable inference one can draw is that the people wanted to pushit up to a point and release it so that the driver will have the advantageof getting the vehicle started thereafter when .St came down the incline.It can safely be assumed therefore that the vehicle was being pushedbackwards up the hill on a public road when it struck a pedestrian whowas legitimately using the road on his correct side and injured him.
The decisions on which the learned Magistrate relied as well as someothers have been cited by Crown Counsel in siipport of the appeal. Inthe case of Wallace v. Major1 a Bench of three Judges, presided over byLord Goddard C.J., unanimously held that a person, who was at thewheel of a disabled vehicle for the purpose of steering while it was beingtowed by another motor vehicle, was not a driver and was not drivinga mechanically propelled vehicle within the meaning of sect ion 11 of theRoad Traffic Act, 1930. Lord Goddard expressed the matter in simplelanguage when he said that a Penal Statute must be strictly construedand that before a person could be convicted of being a person driving amotor car in a dangerous manner it must be shown that he was at leastdriving it, that is to say, making the vehicle go. Humphreys J., whilefully agreeing with these observations, added that it would bo acontradiction in terms to say that the person at the wheel of the disabledvehicle which was being drawn by a motor vehicle iu those circumstanceswas driving it. The principle underlying this decision is that a personwho is at the driving wheel of a vehicle cannot be convicted of anyoffence in respect of his driving of that vehicle unless he had controlover the vehicle and he propelled it or made it go. This decision wasfollowed by Gunasekara J. in the case of Fernando v. Queen 2, in whichthe driver of a bus was indicted with having caused the death of a personby a negligent act. It transpired in evidence that the bus, which theaccused was alleged to have driven, was being.towed by a smaller oneat the end of a chain 17£ feet long and steered by the accused.
(JOJO) I K. B. 473.
* (1054) 50 N. L. li. 228.
G. P. A. SILVA, J.—Joachim v. Dharmadasa401
Gunasekara J. held that in the circumstances the prosecution had failedto prove that the accused was driving the bus in the sense in which LordGoddard had used the term.
In Saycell v. Bool1, the question arose whether the owner of a lorrywhich had no petrol in the tank and which stood at the head of an inclinecould be held to have driven the vehicle when he released the brake andset the lorry in'motion by pushing it and later got into the driving seatand steered it into the garage. Goddard C. J. expressed the view thathe drove the vehicle.
On a consideration of the two cases decided by Goddard C.J. it seemsto me that the fundamental point is whether the person who steers hascontrol of the vehicle and whether there is an external agency whichdeprives him of that control which he would have otherwise had. Inthis view of the matter the case of Shinwell v. Fisher and others2, whichwas cited by Crown Counsel in support of his contention is of no assistanceto decide the question, except"to emphasise that full control of the vehicleat the wheel is a sine qua non before a person is found to have driventhe vehicle, whether the vehicle moves by mechanical propulsioir orby gravitation.
Mr. Premaratne has also drawn my attention to the case of Reginav. Spindley referred to in the Criminal Law Review (1961), page 4S6,which in many ways bears the closest resemblance to the instant case.The facts of that case would show that a person, who was disqualifiedfrom driving, committed the offence of driving a motor vehicle when hesteered a van sitting in the driving seat of the vehicle which was beingpushed from behind by another. Counsel for the defendant sought todistinguish this case from Saycell v. Bool on the ground that in that caseonly one man had anything to do with the vehicle and that, when thedefendant in that case pushed the vehicle downhill and then jumpedin and steered, he made it go. The Court held, however, that the factthat propulsion was coming from somebody pushing from behind andnot from the force of gravity did not distinguish the case from Saycell•o. Bool.
The Commentator in this case referring to the cases of Sayccll v.Bool and Wallace v. Major goes on to say at page 4SS, inter alia :•—
“This would seem to mean that the control must extend to theforward motion of the vehicle. The driver in Saycell v. Bool clearlyhad this as he could have stopped the vehicle at any time by applyingthe brake whereas the driver in Wallace v. Major might have beenliable to be dragged along by the towing vehicle even if lie did applythe brake. Where the vehicle is being pushed by manpower it is clearlypossible for a person at the controls to stop it at auy moment. Thecase is then not inconsistent with the previous authorities—but thedistinction is not a happy one.”
1 (1948) 2 A. E. R. 83.
* 3.5 G. A. R. 100.
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G. P. A. SILVA, J.—Joachim v.. Dharmadaaa
The cases in which the respective Courts found against the defendantshad the following features :—
forward movement of the vehicle,
the driver in full control of the steering and brakes,
the movement of the vehicle by gravitation or by force used from
behind the vehicle by one human being.
In the instant case, however, the vehicle was being moved backwardsby-a number of people and the accused was thus not in possession of fullcontrol of the vehicle nor had lie a clear view of the objects behind himas it happened in the cases cited where the defendants were found guilty.In other words, in the present circumstances, at the moment of the impact,there Avas hardly anything which the accused was doing out of his ownroIition apart from sitting in the driving seat and holding the steeringwheel. He Avas not making the A'ehiclc go in any sense of the termand the force exerted by several people may have been of such a degreeas to prevent him from exercising full control even if he wanted to, theposition being so very different from a case Avhere the ATchiclc Avould bemoving doAvnhill by gravitation Avitli a man seated in the driving seatand in control of the steering and brakes or from a case Avhere one personAvould bo pushing forwards Avith the person in control having a clearview of objects facing him. In these circumstances I do not feelsufficiently justified in setting aside the acquittal of the accused basingmy decision on the cases cited by Crown Counsel in support.
There is another aspect of this matter which strikes me as being notunimportant. The offences under the Motor Traffic Act, for the purposesof this case, relate to the driving of a motor A'elncle. A motor-*vehicleis defined in section 240 of the Act as meaning any mechanically propelledvehicle intended or adopted for use on roads, and includes a trolleyvehicle and a traitor and a tractor. Mechanical projmlsion is thereforean essential attribute of a vehicle in order that it may be treated as amotor A'ehicle. In that view of the matter it seems to me that when onedeals Avith offences such as those referred to in this case one is entitled toconsider onlj' vehicles which are not divested permanently or temporarilyof the character or attribute of mechanical projmlsion at the time of thealleged offence. When this character or attribute of mechanical projmlsionis absent in a vehicle even for the time being I do not think that a Courtis justified in treating such a vehicle as a motor vehicle. This character, .in my view, is imjjlicit in the term “Motor Vehicle ” and is inseparablefrom it. If, for instance, the entire engine is removed from Avhat was amotor vehicle and some sort of brakes remained and a jicrson should beseated at the driving Avliccl and be steering it either over an incline orbeing jmshed by others from behind I should imagine that the drivercannot be convicted of an offence under the Motor Traffic Act if he causedsome injury to a pedestrian on the road by reason of ineffective brakesor for some such reason for Avhich he could have been found guilty ifthe A'diicle was in fact a motor vehicle Avith in the meaning of the Act.
Yecriah v. Food and Price Control Inspector, BadulUi
403
If that be so, the fact that there is an engine attached to the vehiclewhich is not functioning at the time of the accident would seem to me tomake no difference to the question. Viewed from this angle too, there isno reason for me to interfere with the decision of the Magistrate.
I might add that even if I had sufficient grounds to disagree with thelearned Magistrate’s view of the law, this is a case in which I should havehad considerable difficulty on the facts to find the accused-respondentguilty of criminal negligence in doing any of the acts alleged in the charge.Nor would I have found it possible to convict the accused of the alternativecharge in the face of the authority of the case of Perera v, Percra1 citedby Mr. Athulathmudali in support of his contention.
The appeal is accordingly dismissed.
Appeal dismissed.