The Gazette 1978

GAZETTE

DECEMBER 1978

WHAT IS "DRIVING"? By Robert Pierse, B.C.L., LL.B., Solicitor

Intention also plays a part. Thus in Blayney v. Knight [ 19751 R.T.R. 279 a passenger who, in a struggle with a taxi driver, accidentally hit the accelerator and sent the taxi down the road, was held not to be the driver. The best summary of how far the law has gone at present in England is found in R. v. McDonagh [1974] R.T.R. 327. This is an English Court of Appeal decision in which a conviction of 'driving' was quashed. The accused had been convicted of causing an obstruction with his car on the public road and had been disqualified from driving. A police officer had told him to move the car and he did so. The accused's version of the moving of the car was that he had pushed the car standing with both feet on the road, putting his shoulder against the door pillar and one hand inside the car to steer. At the trial, the jury had been directed that even if they found that the facts as stated by the accused were correct, the accused could properly be described as "driving" it and, therefore, guilty of the offence as he had been, in a substantial sense, controlling the movement and direction of the car. He had been so convicted by the jury. Lord Widgery in delivering the Court of Appeal Judgment, stated that there was a distinction between "driving" a car and pushing it, although he pointed out that the dividing line was not always easy to draw. The Lord Chief Justice went on to state that the essence of driving was the use of the driver's controls in order to direct the movement, however that movement was produced. In the particular circumstances, the conviction of "driving" was quashed. A recent unreported decision of the Irish High Court on a case stated from the District Court has prompted this article on what is "driving". In the case of O'Leary v. Walsh (Butler J., 2.10.1978, unreported) the question was whether the District Justice was coirect in law in holding that a person walking with or pushing a bicycle in a public place could be convicted of "driving" same within the meaning of Section 51 of the 1961 Act as amended by Section 48 of the Road Traffic Act 1968. In this case, the defendant had been walking up a public street with a bicycle, which he was not riding. The State had argued that he was "managing and controlling" it whereas the defence had argued that pushing a bicycle was neither riding it nor managing it nor controlling it. The High Court held that as Section 51 of the 1961 Act did not create an offence of being drunk in charge of a pedal cycle, as it did not have the words "in charge o f ' in it, as had the 1961 Act in the section dealing with being in charge of animals, the omission of these words was a studied omission and, therefore, it was held that the District Justice was wrong in law in deciding that pushing a bicycle amounted to "managing and controlling" it and, therefore, to "driving" it. The offence under Section 51 of the 1961 Act could therefore only be committed by 'riding' it as referred to in the definition of 'driving' in Section 3, and not by any other activity, such as pushing it.

General It is a 'sine qua non' to most offences under the Road Traffic Act that the prosecution must prove that the Defendant was driving e.g. drunken driving, dangerous driving, careless driving, etc. It could, therefore, be a successful preliminary defence to the main issue to show that the defendant was not the driver in question or that he was not driving at all. There is a statutory 'definition' of driving. Like most statutory definitions it is not in fact a definition but an expansion of the meaning of a word. Section 3 of the Road Traffic Act 1961 ("the 1961 Act") states that "driving" includes managing and controlling and, in relation to a bicycly or tricycle, riding, and driver and other cognate words shall be construed accordingly. It is a question of fact as to what is "driving" in any circumstances subject to the legal principles and cases — Pinner v. Everett [1969] 3 A.E.R. 257. In Hill v. Baxter [1958] 1 Q.B. 277 it was indicated that the defence of automatism would be accepted provided "the driver" was unexpectedly deprived of all thought, from circumstances that he could not anticipate. That case is to be contrasted with R . v. Kitson [ 1951] 39 C.A.R. 66 where the accused was drunk and asleep in the car of his brother-in-law who was the driver in the normal sense of the word. The accused woke up to find the car moving but there was no one in the driver's seat and no ignition key. He steered the car down hill and on to a grass margin. He was held to have been driving and was convicted. One could possibly argue that if he was so drunk as to be deprived of his senses he would be better off legally — if he was alive! The meaning of the word "managing" was considered in a judgment in a Civil Case of Neill v. The Minister for Finance [ 19481 I.R. 88 where a postman closing the door of a stationary Post Office van injured a child. The conduct of the postman was held not to be "managing" within the definition of driving in the Road Traffic Act 1933. The 1933 Act definition was basically the same as the definition in the 1961 Act which was "managing and controlling". CASES ON MEANING OF "DRIVING" It is not necessary to start a car to be convicted of "driving" it. In Saycell v. Bool[ 1948] 2 A.E.R. 83, the accused was in the driver's seat and released the brake and let the car with no petrol run down the hill. This was held to be driving. As to a learner driver and his co-pilot, the case of Tyler v. Whatmore 11976] R.T.R. 27 is of interest. The driver in the driver's seat and his lady passenger in the passenger seat were both held to be driving; she had leaned over in front of her companion which had caused a collision. This case followed a case in which an instructor and learner driver were both considered drivers where the instructor had simultaneous control, Langman v. Valentine [19521 2 A.L.R. 803.

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