Raman v Reginam [1978] FJSC 36; Criminal Appeal 027 of 1978 (30 May 1978)

IN THE SUPREME COURT OF FIJI
Appellate Jurisdiction

CRIMINAL APPEAL NO. 27 OF 1978

MICHAEL RAMAN
s/o Chinaiya
Appellant

v.

REGINAM
Respondent

JUDGMENT

The appellant on the 13th day of March, 1978 was convicted by the Magistrates Court, Suva of the offences (as charged) of "Permitting Another Person to Drive a Motor Vehicle. Without a Driving Licence contrary to sections 23(1) and 85 of the Traffic Ordinance" and "Permitting Another Person to Drive a Motor Vehicle in Contravention of Third Party Policy Risk contrary to section 4(1)(2) of the Motor Vehicles (Third Party Insurance) Ordinance".

On conviction the appellant was fined $15 in default one month's imprisonment in respect of the first offence and $60 in default two months' imprisonment on the second offence and was disqualified from holding or obtaining a driving licence for a period of two years.

He appeals against the convictions and sentences. I will deal with the first offence referred to above.

Section 23(1) of the Traffic Ordinance provides as follows:

"23.(1). Subject to the provisions of the next succeeding section, it shall be an offence for any person to drive a motor vehicle of any class upon a road unless he is the holder of a driving licence valid in respect of such class under the provisions of this Part of this Ordinance or to employ any other person so to drive a motor vehicle of any class unless such other person is the holder of such a driving licence."

The appellant was charged with the following offence:

"Statement of Offence

PERMITTING ANOTHER PERSON TO DRIVE A MOTOR VEHICLE WITHOUT DRIVING LICENCE:

Contrary to sections 23(1) and 85 of the Traffic Ordinance, Cap. 152.

Particulars of Offence

MICHAEL RAMAN s/o CHINAIYA, on the 10th day of July, 1977 at Suva in the Central Division, permitted RAVIND CHAND s/o RAM DAYAL to drive a private motor vehicle on Kings Road, 6 Miles without Driving Licence."

Section 23(1) of the Traffic Ordinance does not use the word "permit" but uses the word "employ". This was raised in argument in the Court below but the learned trial Magistrate in his judgment held that the word "employ" as used in section 23(1) of the Traffic Ordinance was to be interpreted in its widest sense "thus covering those persons who permit, use, allow, etc, other persons who are unlicensed to drive motor vehicles". He further held the charge as drafted was properly drafted and within the terms of section 23(1) of the Traffic Ordinance.

There is no dispute about the facts. The appellant was sitting alongside the driver of the appellant's vehicle when it was involved in an accident. The driver had never held a driving licence. On the facts the appellant clearly permitted an unlicensed driver to drive the appellant's vehicle. While the appellant did not know the driver had no licence until after the accident in which the vehicle was involved, the sole issue which I have to decide is whether the learned trial Magistrate was correct in interpreting the word "employ" in the manner he did to include the meaning of "permit". There can be no doubt that if a person is employed to drive a vehicle he is also permitted to drive that vehicle but it does not follow that the converse is true, that a person permitted to drive a vehicle is employed by the owner to drive that vehicle.

In Part III of the Traffic Ordinance in which section 23 falls the words "permit" or "permits" are used in sections 8(2) and 9(1). Section 23(1), however, uses the word "employ" where the word "permit" could have been used. The legislature clearly intended to provide for a situation which went beyond the mere granting of permission to drive a vehicle. By the use of the word "employ" it was in my view intended to cover the situation where a person uses the services of a driver for the purpose of driving that person's vehicle. The driver may be a servant of that person and be employed in the usual sense of that word but the relationship of master and servant is not necessary to constitute an offence under the section. He can be an agent.

The sense of the word "employ" is [sic] used in the section is "To use the services of for some purpose" or "to find work or occupation for". (The Shorter Oxford English Dictionary). Of the two meanings given, the first I have quoted is the more apposite. In its context in section 23(1) the words "to employ any other person so to drive a vehicle" connotes that the driving is for the owner and for that owner's business whether commercial or private.

Two examples will indicate the meaning. If an owner asks 'A' an unlicensed driver to drive him to Nausori Airport he employs that person to drive the vehicle within the meaning of "employ" in section 23. It matters not that 'A' is not paid for his services. If however, the driver is asked by 'B' for a loan of his car and 'B' asks 'A' the unlicensed driver to drive him to Nausori Airport it is 'B' who employs 'A' to drive. The owner in this case has not employed 'A' and in this example would not even have permitted 'A' to drive if in fact he gave no permission for 'B' to employ 'A'.

In my view if an owner was to lend his car to a person who did not have a driving licence and who wanted the vehicle for that person's private use that person is not employed by the owner and the owner commits no offence under section 23(1). The owner would, however, have committed an offence under section 4(1) of the Motor Vehicles (Third Party Insurance) Ordinance if he permitted that person to drive, a matter I have to consider as regards the second offence in this case.

My interpretation of section 23(1) is not an evasion of the intention of the legislature, a matter which concerned the learned trial Magistrate. The driver with no driving licence is caught by the section. It is his responsibility to see he is licensed to drive that vehicle.

So too it is the responsibility of a person employing a driver, in the sense of using that person's services to drive, to ensure that the driver is licensed to drive that vehicle. The relationship of master and servant or agency must exist. It is an absolute offence to employ an unlicensed driver to drive a vehicle.

In my view "employ" does not mean "permit", although a person employed to do something is permitted to do that which he is employed to do. Permission and employment are not synonymous terms. "Employ" and "permit" correspond to "use the services of" and "allow".

Counsel for the Crown could not support the learned trial Magistrate's interpretation of "employ" and advised the Court he could find no authority to justify the interpretation.

As charged there was no offence created by section 23(1) of the Traffic Ordinance of Permitting Another Person to Drive a Motor Vehicle Without a Driving Licence.

It follows that the appellant should not have been convicted on the first count and the appeal must be allowed.

The conviction is quashed. The fine if paid is to be refunded to the appellant.

The second part of the appeal relating to the second count has involved considerable reference to authorities.

Counsel for the appellant, while quoting cases in support of his argument, frankly admitted that the weight of the authorities were against him.

Counsel for the Crown, while contending that the learned trial Magistrate did not err, referred to certain Fiji Authorities and queried whether Ramdayal v R. 6 F.L.A. 134 was properly decided. That was one of three Fiji cases on which counsel for the appellant relied in the Court below, and also referred to in this appeal. The other two cases were Murtaza Khan v. R. 11 F.L.R. 161 and R. v. Temo Maya Review No. 6 of 1977.

The learned trial Magistrate referred to these three cases in his judgment and held they were not relevant.

Counsel for the Crown also stated that there was some uncertainty amongst Magistrates as to the law to be applied in Fiji and asked whether this opportunity could be taken to seek clarification of the law.

I accede to this request as it would appear there is some uncertainty and misunderstanding of the Fiji authorities in particular as regards Ramdayal's case.

The facts in Ramdayal's case were very similar to the facts in the instant case. The appellant in that case was convicted by the Magistrates Court of driving an uninsured vehicle. At the time of the offence the driver did not have a valid driving licence. The only difference between the facts in Ramdayal's case and the instant case is that in Ramdayal's case the driver had not renewed his licence and in the instant case the driver had never held a licence.

Ramdayal's case went on appeal to the Supreme Court in 1959 and this must be borne in mind because it would appear from the judgment in that appeal that the form of Third Party Insurance Policies issued in 1959 differed in at least one important aspect from the policies issued at the present time.

One of the conditions in the 1959 policies was as follows:

"The person insured shall not use the motor vehicle nor shall the owner cause permit or suffer any person to use such motor vehicle ...

(d) whilst any such person as aforesaid does not hold s licence to drive a vehicle of the class described herein."

The judgment does not state who was covered by the policy but I would assume it would cover the owner and any person driving with the owner's permission.

The policy referred to in the judgment did contain the following words:

"The insurer agrees subject to the terms limitations exclusions and conditions contained herein or endorsed hereafter and to the provisions of the said Ordinance to insure the persons or classes of persons insured under this policy ... against all liability incurred by such persons or classes of persons."

Present day policies contain the same words. I have quoted these words as they appear in the judgment which indicate the omission of certain words. In policies issued today the missing words are "as described under paragraph 4 above", and it would appear such words appeared in the policy under consideration in Ramdayal's case.

Paragraph 4 refers to the persons or classes of persons entitled to drive and insured under the policy.

In Ramdayal's case there had been a breach of a condition namely permitting an unlicensed driver to drive the vehicle and it was held by the then learned Chief Justice that the breach of the condition made the policy voidable at the instance of the insurer but that there was in force at the relevant time a policy of insurance covering third party risks. Ramdayal's conviction was quashed.

Ramdayal's case was properly decided but the decision turned on the form of the policy then in existence. It is not now authority for cases where the driver is not licensed due to the form of the policies now issued to which I will shortly refer. It is still authority, however, for other cases where there has been a breach of a condition which makes the policy voidable at the instance of the insurer.

In the instant case the policy was not exhibited in the Court below but it was produced in Court and the Magistrate did read it and has referred to it in his judgment where he has quoted para 4(b) of the policy.

It appears that after Ramdayal's case the insurers changed their form of policy. The condition I referred to earlier when dealing with Ramdayal's case is no longer a condition listed in the conditions at the back of present day policies. Instead the insurers have added a proviso to paragraph 4 which I set out in full:

"4. PERSONS OR CLASSES OF PERSONS ENTITLED TO DRIVE AND INSURED UNDER THIS POLICY.

(a) The owner, and

(b) Any person who is driving on the driver's order or with his permission:

Provided that the person driving holds a licence permitting him to drive a motor vehicle for every purpose for which the use of the above motor vehicle is limited under para 5 below or at any time within the period of thirty days immediately prior to the time of driving has held such a licence and is not disqualified for holding or obtaining such a licence."

This was a very substantial change of form. In 1959 the breach of a condition to like effect made the policy voidable. But by virtue of this proviso the legal position now is that a driver who holds no valid driving licence, or did not hold one within 30 days prior to the time of driving, or is disqualified from holding or obtaining a licence, is not covered by the policy at all. There would in fact be no policy in force covering such an unlicensed driver, because the policy does not extend to cover an unlicensed driver.

Having distinguished Ramdayal's case I turn now to the case of Murtaza Khan v. R. This case like Ramdayal's case was concerned wit a breach of a condition - using a private car for carrying fare paying passengers. The appeal was allowed in Murtaza Khan's case on the construction of section 6(1) of the Motor Vehicle (Third Party Insurance) Ordinance. It was held (inter alia) that the section did not extend to a private vehicle in respect of which a fare is charged on isolated occasions.

Murtaza Khan's case has no relevance to the instant case but it was referred to and relied on in R. v. Temo Maya Review No. 6 of 1977 and this case may also have given rise to uncertainty.

In that case the accused did not hold a valid driving licence. He had held a learner's permit which had expired. The Magistrate having convicted the accused was in doubt whether he was correct in holding that at the relevant time there was no policy of insurance covering third party risks and referred the matter to this Court.

The learned Judge who reviewed the case was of the view that there was a policy in force at the relevant time and quashed the conviction.

With respect to the learned Judge's views I am of the view that the learned trial Magistrate was correct in holding there was no insurance policy in force.

In relying on Murtaza Khan's case the learned Judge appears not to have appreciated that that case dealt with a breach of a condition, which made the policy voidable only, the policy remaining in force. In Temo Maya's case, however, as in the instant case, the policy did not extend to cover an unlicensed driver and there was not in force at the relevant time a policy which covered the driver. The cover was circumscribed by the proviso. Since I am differing from the view expressed by my brother Judge in his review of Temo Maya's case, I have consulted the learned Chief Justice who concurs in my decision.

From what I have already stated it follows that the learned trial Magistrate in the instant case was correct in convicting the appellant.

For the guidance of Magistrates I will refer briefly to some English authorities which support the view I hold.

Lyons v. May (1948) 2 All E.R. 1062. This was a case where the policy covered only the owner and authorised persons in his employ. The vehicle was driven by a garage proprietor who was not employed by the insured and who was not covered by insurance. The Justices were directed to convict the owner.

Tapsell v. Maslen (1967) Crim. L.R. 53 is of interest because the commentary refers to the fact that the word "permits" in the English section does not require "mens rea". (See also Boss v. Kingston (1963) 1 All E.R. 177). In this case the defendant lent his motor scooter to W. who had no insurance certificate. W. drove the scooter uninsured. Defendant was convicted after the appellate court directed Justices to convict.

Baugh v. Crago (1975) Crim. L.R. 72 was a case on all fours with the instant case. The defendant permitted 'X' to use a van which was insured against third party risks when driven by the policy holder and any other person provided he was the holder of a driving licence. 'X' did not have a driving licence. The defendant did not know 'X' had no licence. The Justices dismissed the information but on appeal were directed to convict.

Bright v. Ashfold (1932) 2 K.B. 153 dealt with a condition which circumscribed the operation of the policy from the beginning and it was held there was no policy in force. The policy only covered a motor cycle with side car attached. At the time of the offence the defendant was riding the cycle without a side car with a passenger behind him. The proviso to paragraph 4 of the Fiji policies now in use is such a circumscribing condition.

The foregoing are only a sample of the very many English decisions which support the conviction of the appellant in the instant case.

English policies differ from, Fiji policies in one respect. The usual English policies are issued in the form - "provided the driver holds or has held a driving licence and is not disqualified or words to that effect (the underlining being mine). This form of policy is very much more favourable to third parties than the Fiji form of policy. There appears to be no logic in excluding from the policy drivers who have passed driving tests and have held a licence, but who are unlicensed at the relevant time or have not held a licence within 30 days prior to that time. If a driver has forgotten to renew his licence for 30 days he will still be covered by his policy - but not if the period is 31 days. The Ordinance woks to protect third parties, and the real criteria should in my view be whether the driver is competent to drive the vehicle. Obviously he is not if he has been disqualified; but I fail to see the logic of exempting an insurer from liability where a competent driver previously licensed and not disqualified has omitted to renew his licence for more than 30 days, However, that is a condition insurers have imposed in their policies.

Only legislation can now bring Fiji policies into line with English policies in this respect and, in the interests of third parties, a change of law would appear desirable.

The learned trial Magistrate did not err in convicting the appellant on the second count and the appeal against conviction fails.

On the question of sentence, counsel for the Crown did not seek to support the two year disqualification. He pointed out that the Magistrate, to be consistent with the two year disqualification imposed on the driver of the vehicle, disqualified the appellant for the same period; but the driver was in fact convicted of three offences, namely Causing Death by Dangerous Driving, Driving with No Driving Licence, and Driving Without Third Party cover.

In these circumstances the appeal against sentence on the second count is allowed. The two year disqualification is cancelled and in lieu thereof is substituted disqualification of the appellant for a period of one year from the 13th day of March 1978 from holding or applying for a driving licence.

R.G. Kermode
JUDGE

Suva,
30th May, 1978.