The Legal Responsibilities of the Supervising Driver in the case of Bentley v Mullen (GB)
(And ADIs legal responsibilities)
Introduction
The question of what exactly constitutes a supervisors legal responsibility when accompanying a learner driver has provoked much debate from time to time. This issue is rarely considered by the lay supervisor who merely possesses a provisional licence or permit and willingly accompanies the learner driver at little or no cost. However, it is especially important where a professional instructor is receiving money or money’s worth for his services. Does the professional instructor have a greater legal responsibility and burden of care that that of a lay supervisor? But what is involved in that supervision and where does that supervision or ‘control’ cease. The following article, although somewhat long-winded, looks at the question in the courts effort in trying to decide whether an accompanying driver’s supervision extends after a crash.
Failing to stop and the RTA 1972
This article concerns a court case - Bentley v Mullen- where a learner driver failed to stop and remain at the scene of an accident where a cyclist was injured. And also his supervising driver failing to take steps to ensure the learner driver did so. The question arose as to whether the supervising driver aided and abetted the learner driver’s offence.
Section 25 of the Road Traffic Act 1972, (as amended by section 24 (2) of, and Schedule 6 to, the Road Traffic Act 1974) provides:
‘(1) If in any case, owing to the presence of a motor vehicle on the road, an accident occurs whereby personal injury is caused to a person other than the driver of that motor vehicle ... the driver ... shall stop ... (4) A person who fails to comply with this section shall be guilty of an offence’.
Section 44 (1) of the Magistrates’ Courts Act 1980 provides:
‘A person who aids, abets, counsels or procures the commission by another person of a summary offence shall be guilty of the like offence and may be tried (whether or not he is charged as a principal) either by a court having jurisdiction to try that other person or by a court having by virtue of his own offence jurisdiction to try him’.
Facts of the case
On 3 March 1983, a learner driver-Mr. Sprake- was driving his motor vehicle on the A453 at Radcliffe-on-Soar, Nottinghamshire under the defendant’s supervision - a Mr. Christopher James Mullen - when he collided with a cyclist causing injury to both cyclist and bicycle. The driver left the scene followed by the supervisor, who took no steps to ensure that the learner remained at the scene of the accident. Some 40 minutes later a police officer saw the learner and supervisor about two miles away and walking back towards the accident scene.
The learner was charged and convicted of failing to stop in which injury was caused, contrary to section 25(1) and (4) of the RTA 1972, as amended. The supervisor was charged under section 44(1) of the MCA 1980, alleging that he aided and abetted a section 25 offence.
(The case was heard before a magistrates sitting in Nottingham, followed by a prosecution appeal. Before reading further and in your opinion, what was the final outcome of the case?)
Magistrate’s opinion and appeal
The opinion of the court was that the defendant’s duty to supervise the learner ceased when he stopped driving and that the defendant was under no legal obligation to take any steps that the learner driver remained at the scene of the accident and they dismissed the case. Rubie v Faulkner could be distinguished as the learner driver had ceased to be driving within the meaning of the regulation. The court accordingly dismissed the case.
An appeal was allowed based on the argument that the defendant’s duty to supervise the learner continued after the crash. Giving the words ‘aid’ and ‘abet’ their natural meaning, namely, to give help, support and assistance, and to incite, instigate or encourage, it was clear on the facts found by the court that the defendant had aided and abetted the learner in his failure to comply with section 25 and, accordingly, he should have been convicted.
The appeal prosecutor, Chief Inspector Bentley outlined the facts of the summary trial and contended that the duty of the supervising driver extended to taking steps to try to ensure that the learner driver he was supervising stopped and remained at the scene. The defendant contended that the duty of the supervising driver extended only as far as supervising the driving of the learner driver. It was further argued that that the learner driver had ceased to be driving when he had alighted from the car. The justices were referred to Rubie v Faulkner by the prosecutor in support of his contention that a person might be liable for being passive, instead of active, in discharging a duty.
Aiding and abetting?
The question for the opinion of the court was: could the omission to act by the supervising driver after an accident on a road in which personal injury was caused to another person, or damage was caused to property other than that vehicle, owing to the presence of that vehicle on the road, amount to aiding and abetting the offence of failing to stop under section 25(1) of the RTA 1972?
May LJ and Taylor J were the sitting appeal judges. Having being given notice of the hearing, Mr. Mullen failed to appear. May LJ commented that common decency would have expected not merely the learner but also the supervising driver to have stopped and seen whether there was anything they could do for the cyclist. Common decency apart, he quoted from section 25 of the RTA 1972:
‘(1) If in any case, owing to the presence of a motor vehicle on a road ... the driver of a motor vehicle shall stop ... 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 constable as soon as reasonably practicable , and in any case within 24 hours of the occurrence thereof’.
‘Driving’ continued after...
May LJ inferred that by walking back towards the car they intended to collect it after a sufficient time had elapsed since the accident occurred and that the supervisor was under a duty to supervise the driving of a learner driver and that the ‘driving’ continued at any rate for so long a period after the accident had in fact occurred. That a supervising driver is under a duty to supervise the driving of the learner is quite apparent from Rubie v Faulkner. In the course of his judgement in that case, Lord Hewart CJ said:
‘The condition on which the holder of a provisional licence is allowed to drive a motor vehicle on a highway is that he is under the supervision of an experienced driver. The very essence of the matter is that there should be a supervisor competent to supervise. The duty being clear on the face of the regulation, it was a pure question of fact for the justices to decide whether that duty had been performed’.
May LJ went on to say that the meaning of ‘to drive’ or ‘driving’ or the period for which a person can said to be driving a motor vehicle, has been frequently before the courts, particularly in relation to the driving whilst under the influence of alcohol legislation. And he was not surprised that the justices initially acquitted Mr. Mullen. However, he felt that the matter could be looked at more widely and without going outside the confines of the case.
Wider basis...
First, the justices found that an accident did occur, secondly, that as soon as the accident occurred both the learner and supervisor walked off, thirdly, that when they were next seen they were some two miles away, still together and coming back. On those facts, in my judgment it is possible to hold that there was material before the justices upon which, had the matter been argued upon a more general basis, they should have convicted the defendant. May LJ further, remarked that even though the prosecution initially argued principally on what he had described as the ‘driving’ point there was also a sufficiently wide basis to raise the more general question whether, in law, this supervising driver did indeed aid or abet the learner driver.
Issues not fully argued and decision
As was pointed out in Attorney-General’s Reference in the relevant statutory provision, which is in section 8 of the Accessories and Abettors Act 1861, now as amended by the Criminal Law Act 1977, the words ‘aiding’ and ‘abetting’ have to be given their ordinary meaning. The natural meaning of ‘aid’ is to give help, support or assistance to and the natural meaning of ‘abet’ is to incite, instigate or encourage. In those circumstance, it was quite apparent that by walking away with the learner driver and walking back with him when they hoped the accident had been cleared up and they could collect the car without any trouble, the defendant did aid and abet the learner driver in his failure to comply with the provisions of section 25 of the 1972 Act.
May LJ concluded by saying that he had some sympathy for the decision of the Nottinghamshire justices’ decision to dismiss the charge against the defendant. He felt the issues were not fully argued but taking the view that he had taken, a conviction ought to have been founded. He decided to say nothing about their conclusions as to when the driving ceased. In the circumstance he directed that the appeal should be allowed and the case sent back to the justices with a direction to convict and the defendant to pay the prosecutors costs. Taylor J. concurred.
Professional Instructors Duty
In light of the above judgement it would appear that a professional ADI has an equal if not a greater legal responsibility and duty of care than that of a lay supervisor. Many people think that teaching novice drivers is easy. The responsibilities and duties of an instructor are many and varied. The good teacher acts as a facilitator for incorporating and encouraging the various skills needed to become a safe and competent driver but also equally important is protecting ‘the tool of his trade’ – his vehicle.
Experienced instructors will be well aware of the potential accident situations that are ever present when teaching e.g. the classic false start, rear end shunt, straightening up after right/left turns, sudden harsh braking or stopping – indecision approaching traffic lights etc. Many of these situations can be avoided by giving clear and unambiguous instructions and directions in a timely manner. And also by being mentally alert in order to anticipate the pupils actions or reactions in all traffic situations. Training routes chosen should be comparable with the pupil’s ability and experience because ‘dumping’ a pupil into the ‘deep end’ is a pupil’s worst nightmare and the consequences for both pupil and instructor could be disastrous.
Should an accident occur who is responsible and what action should a professional instructor take? Clearly he would not act as the above Mr. Sprake or especially Mr. Mullen did. Firstly, the law is quite clear. If involved in an accident the driver must stop his vehicle and remain at the scene for a reasonable period of time and exchange details etc. Clearly the learner is driving the vehicle but is he in full control and is he still considered to be ‘driving’ after the accident? What control does the instructor have? Apart from intervening to prevent an incident or accident by using steering, gears, handbrake or dual-controls, he has a legal, ethical and moral duty to protect his client (and others) from any impending danger and to deal with relevant issues following an accident in a professional manner.
Some years ago, the situation arose where a driving examiner failed to prevent a test candidate from driving against the traffic flow in a one-way street and he was found to be guilty of contributory negligence. However, in the case of a driving teacher the standard of duty must be higher because the pupil is (a) under professional paid instruction and (b) the instructor has significant ‘control’ over the pupil.
Negligence and legal duty of care
Should an instructor be negligent, this is a breach of a legal duty of care which results in loss to the party to whom the duty is owed. Three essential ingredients must be present before the tort of negligence arises. These are: (a) a legal duty of care (b) a breach of that duty and (c) loss from that breach. Negligence is an omission to do something which a reasonable person would do, or doing something which a reasonable person would not do. Whether or not a legal duty is owed in any particular circumstances is a question of law for the courts and new legal duties are given judicial recognition as the necessity arises.
Contributory negligence
It appears that in the event of an accident where a learner was driving the supervising instructor would be found guilty of contributory negligence. Under the Civil Liability Act where a party suffers damage partly through his or her own fault and partly through the fault of another, that party may still recover compensation. It is common to find negligence apportioned For example, in O’Leary v O’Connell a pedestrian’s leg was broken after being struck by a motorcycle while crossing the road. Both parties were found to be negligent for not keeping a proper look-out and fault was apportioned 85pc to the motorcyclist and 15pc to the pedestrian. In the case of Sinnott v Quinnsworth Ltd. a passenger was injured when a car and bus collided. The passenger was held to be 15 pc at fault for failure to wear a safety belt.
Finally, a professional driving instructor has an onerous duty not only to teach correctly, but to protect from danger, himself, his pupil, his car and others to whom a duty of care is owed. Each case heard before the courts will be decided on the relevant facts and if it can be shown that the instructor was remiss in any way in contributing to or after an accident then he could well be found guilty contributory negligence and of ‘aiding and abetting’ the learner. The general view held is that most professional instructors would feel responsible if an accident occurred and they subsequently failed to act appropriately and in line with legal requirements.
Tom Harrington LLB RSA ADI F Inst. MTD March 2010