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GAZETTE
DECEMBER 1978
WHAT IS "DRIVING"?
By Robert Pierse, B.C.L., LL.B., Solicitor
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.
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.
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