Duty to report accident although not driving
Cawthorn v Director of Public Prosecutions
[2000] RTR 45; The Times, August 31 1999 QUEEN’S BENCH DIVISION
The Facts
Cawthorne had left his car on a hill, with the hazard lights left on, in order to post a letter. His car rolled down the hill, probably due to the release of the handbrake by a passenger, and collided with a wall, causing damage to the wall and rendering the car undriveable.
The defendant had run to the vehicle and secured it, but had run off when a police officer arrived at the scene, and had only contacted the police later through his father.
The Law
The Court agreed with submissions, that the offence under section 170(4) of the 1988 Act was not a driving offence as such. On the facts the crown court was entitled to conclude that the defendant was the driver, that he had been driving the vehicle, that he had parked the vehicle for his own purpose, that he had secured the vehicle, and that although there was a break in the driving of the vehicle by the defendant, at the time of the accident he was still making his journey.
Further, the crucial point that he was still in the course of completing his journey, evident in the switching on his hazard lights which indicated an intention to return, and for the purposes of the section he remained the driver until he finished his journey: see Jones v Prothero [1952] 1 All ER 434, and Pinner v Everett 133 JP 653.
In the case of Jones the appellant (Jones) stopped his motor vehicle on the near-side of a public road, switched off the engine, and remained in his seat talking to his passenger for some ten minutes. He then opened the driver’s door on the off-side of the vehicle, and, in doing so, he struck a pedal cyclist who was passing. He failed to report the accident, and, on being charged under s 22(2) of the Road Traffic Act, 1930, (as it was then), with so failing, he contended that, as he had stopped the engine of the vehicle for a substantial time before the accident happened, he was not the "driver" within the meaning of the sub-section at the time of the accident.
It was Held in Jones that for the purpose of s 22(2) (as it was then) the "driver" of a vehicle was the person who took it out on the road and he remained the driver until he finished his journey, and, therefore, the appellant was guilty of an offence under s 22(2).
The Road Traffic Act, 1930, s 22, used these words:
"(1) If in any case, owing to the presence of a motor vehicle on a road, an accident occurs whereby damage or injury is caused to any person, vehicle or animal, the driver of the motor vehicle shall stop and, if required so to do by any person having reasonable grounds for so requiring, give his name and address, and also the name and address of the owner and the identification marks of the vehicle.
(2) If in the case of any such accident as aforesaid the driver of the motor vehicle for any reason does not give his name and address to any such person as aforesaid, he shall report the accident at a police station or to a police constable as soon as reasonably practicable, and in any case within 24 hours of the occurrence thereof."
An intervening act by a passenger did not make that person the driver. On any common sense view at no time did any other person have sufficient control, such that the defendant ceased to be the driver and was replaced by someone else.
The question as to who was the driver was a question of fact and there was ample evidence for the crown court to find that the defendant was the driver at the material time.
The Decision
The duty imposed on a driver of a vehicle under section 170 of the Road Traffic Act 1988, as amended by section 48 of and paragraph 72 of Schedule 4 to the Traffic Act 1991, to stop and report an accident included situations where the driver was not actually driving at the time. The Queen’s Bench Divisional Court so held when dismissing an appeal by way of case stated by Cawthorn against the dismissal by Crown Court, on May 9, 1997 of his appeal against his conviction by Justices, on February 10, 1997 of failing to stop and give his name and address, and failing to report an accident under section 170 of the 1988 Act, as amended.
Comment
What is meant by 'driver', Duty to Report an Accident
The Crown Court had applied the decision reached in Jones v Prothero, supra, in coming to its conclusion that, for the purposes of the S 170 RTA 1988 the driver of the vehicle need not be driving it at the material time. The Crown Court had been referred to other authorities which were concerned with the concept of 'driving' but had come to the conclusion that there was a difference in the law between the concept of 'driving' for the purpose of moving traffic offences and the concept of 'driver' for the purpose of the duties imposed by S 170 of the 1988 Act.
The Authorities considered by the Court were Pinner v Everett, supra, Edkins v Knowles [1973] Crim LR 446; R v McDonagh [1974] RTR 372; and R v Roberts 128 JP 395, however, in all of these cases the court had been concerned with whether the person was 'driving' the motor vehicle in question, not whether he was the 'driver' of the motor vehicle for the purposes of the RTA I988, S 170 or the equivalent provision in earlier traffic legislation. The court noted that in Pinner v Everett Lord Reid had said-
"It asks me to choose between the phrases 'actually driving' and 'the driver', neither of which is to be found in the Act, it is in effect substituting 'the driver' for the statutory words 'persons driving or attempting to drive'. The two are not the same. A person can often be properly called the driver although for quite a long time he has neither been driving nor attempting to drive."
The DPP submitted that the facts found by the Crown Court brought the case squarely within the principles established in Jones v Prothero in which the Lord Chief Justice, Lord Goddard had said-
"In the present case it is argued that if a man has stopped for something more than a mere moment, the engine of a car which he has been driving, he may be in charge of the vehicle, but in law he is not the driver. To give any such narrow meaning as that to the word 'driver' would nullify the whole of S 22 (which was the predecessor of S 170 of the 1988 Act). For the purposes of that section the 'driver' is the person who takes out the vehicle, and he remains the driver until he finishes his journey. There was ample evidence here on which the justice could find that the appellant was the driver of the car - which after all, is question of fact - and the appeal must be dismissed with costs."
In this latest case the Divisional Court said that it agreed with the DPP's submissions to the effect that any intervening act by the passenger, such as releasing the handbrake, does not make him the 'driver' for the purposes of S 170. Cawthorne had remained the driver. At no time did any other person have sufficient control of the vehicle to become the 'driver'. The question of who was the driver was one of fact and there was sufficient evidence upon which the Crown Court could come to the conclusion that it was Cawthorne.
Rob Jerrard