Ram v Regina [1979] FJSC 20; Criminal Appeal 50 of 1979 (27 September 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
Appellate Jurisdiction

Criminal Appeal No.50 of 1979

BETWEEN

DAYA RAM
s/o Sukh Bir
(Appellant)

AND

REGINA
(Respondent)

Mr. M. Tappoo for Messrs. Vijai Chand & Company for the Appellant
Mr. D. Williams, Counsel for the Respondent

JUDGMENT

The appellant was charged with the offence of dangerous driving contrary to section 38 of the Traffic Ordinance in that he drove a bus "in a manner dangerous to the public having regard to all the circumstances of the case" and in the alternative with careless driving contrary to section 37 of the Ordinance in that he drove the bus "without due care and attention."

He pleaded not guilty, but after hearing evidence the magistrate convicted him of dangerous driving, sentenced him to a fine of $40 and ordered that his driving licence be endorsed. He now appeals against his conviction and sentence on various grounds.

The appellant was the driver of a bus conveying school girls from school to their homes. On the way two of the girls got frightened by smoke emitted from the vehicle, tried to get the driver to stop and when he failed to do so, or was too slow in doing so, jumped out of the bus as it was moving and were injured.

Although one of the girls said the driver drove fast she said it was his usual speed, the other girl said he drove faster than usual. But there was in fact no evidence of excessive speed, or that speed had anything to do with the incident (except perhaps that the injuries to the girls were greater than they might have been had the bus been travelling slower). There was no evidence that the driver was driving erratically or in a manner dangerous to any other traffic on the road. There was evidence that there were a number of defects to the bus so that it was subsequently taken off the road until they were repaired, but there was not sufficient evidence to show that the vehicle itself was in a very dangerous condition or that the condition of the vehicle contributed to the accident, except to the extent that the smoke emitted from the vehicle might have caused the girls to panic.

There was clear evidence that the exhaust emitted a lot of black smoke, smoke which may or may not have got into the bus - the evidence on this was not very clear, but it would not be surprising if some did get into the bus. However the smoke itself was not dangerous, and there was no need for the girls to panic and jump out of the bus as they did. If they had kept their heads all would have been well.

According to the girls they tried to get the appellant to stop the bus by ringing the bell, and by shouting to him. When he failed to stop - or at least to stop quickly enough, or within a reasonable time, they jumped out of the bus. It is not clear how the first girl jumped out, since she was at the back of the bus she could not have got out through the door at the front, so presumably she got out through the window. The second girl was standing at the front of the vehicle and jumped out through the door.

It is not disputed that the driver did stop, the evidence is that he had stopped just near where the second girl had jumped out, which was about 5-6 chains from where the first girl had jumped out. There is no evidence to show whether the appellant knew that the first girl had jumped out - if, as seems probable, she went out of the window, it is also probable that he did not know. The magistrate made the significant and specific finding that the appellant could not have foreseen that any of the girls would jump out of the bus, and I see no reason to differ from his finding.

It seems to me that there are three quite clear issues to be decided. Firstly was the driver aware of the panic or even hysteria pervading amongst the girls in the bus and the extent of that panic or hysteria. Secondly did he fail to react quickly enough to the panic and stop the bus. And thirdly, if he did fail to react, or react quickly enough to the panic, could that amount to dangerous driving?

In Troughton v Manning (1905) 69 JP 207 it was stated that the offences of careless and dangerous driving applied to misconduct in the management of the vehicle towards people outside it on the highway, and not towards person in the vehicle, but this was disapproved in Pawley v Wharldall [1965] 2 AER 575.

Now there is no doubt that misconduct in the management of a vehicle towards people inside it can amount to dangerous or careless driving, even though there is no misconduct in relation to persons outside the vehicle.

In the instant case was there any potential danger to any of the passengers? There was no reason for the girls to leap out of the vehicle and the magistrate has found that the driver could not have foreseen that any of them would have jumped out or perhaps even have tried to jump out. It is perhaps easy to be wise after the event, but could one expect the driver to appreciate that it was necessary for him to stop the bus as quickly as possible because the hysterical school-girls might do something foolish. But if he could not foresee that they would jump out of the bus whilst it was being driven, what other potential dangers were there?

The magistrate's finding on the question of dangerous driving was as follows:-

"In all the circumstances of this case I find that the accused's manner of driving was dangerous. In the evidence of PW1 it is mentioned that PW1 noticed that the pressure in the rear tyre was "less" and that the accused's attention was drawn to this by PW1. Even if I were to disregard this, I find that after the accused left the school compound he drove the bus at such a speed that after the smoke came into the bus and there was a bang that he was unable to stop within a reasonable distance. He paid no heed to the students' request to stop; he did not cut down his speed. Within a few chains of the bus leaving the school PW1 jumped off the bus. I find that it was the accused's duty to take notice of what was going on inside the bus. I am quite sure that he knew that there was excessive smoke inside the bus. In fact the accused himself admitted that the bus did emit excessive smoke (although he denied that the smoke came inside). I further find that the accused knew that the students were panicking. Despite all this the accused continued to drive his bus at the same speed."

This was the basis of his finding that the appellant drove dangerously and there are a number of questions that arise from his remarks.

Firstly he seemed to accept that speed was an element of the offence. As I have pointed out, and as Crown Counsel conceded, speed was not proved to have been an element of the offence. Secondly that one of the rear tyres was a bit flat - "only a little bit" - not that it had a puncture as one of the witnesses first said, although from the evidence it is probable that the tyre did get a puncture - probably at the tine the passengers heard the bang before the bus stopped. If this were so, as the appellant said in evidence it would have been unwise to brake too sharply otherwise the bus might have gone out of control. It was necessary to slow more gently, which is what he said he did, and would be consistent with the fact that he did stop about 5 chains from where the first school-girl jumped out of the bus. The magistrate's specific finding "that there was no puncture as alleged by the accused" does seem to disregard the evidence of the prosecution witnesses. It was significant that the magistrate found that the first school-girl jumped off the bus only a few chains of the bus leaving the school. It is not as if he drove for a long distance with hysterical school-girls screaming at him from the back of the bus, and he recklessly ignored them.

The magistrate seemed satisfied that the driver knew there was excessive smoke inside the bus. It was accepted that the exhaust emitted excessive black smoke and no doubt some of this managed to find its way inside the bus, but surely the wind created by the bus's speed would have kept most of it outside. If smoke did get inside it would be towards the back where the exhaust pipe was, and so the driver might well, as he said, be unaware that any was coming inside the bus. In any case there was no reason for him to consider the smoke to constitute a danger, and indeed it did not constitute a danger to the bus or its passengers - except that it caused two of the school-girls to panic.

I presume that the driver of a school bus has to put up with a lot of high spirits, noise and even tricks, such as bell ringing, by the school children, so that a driver might well have difficulty deciding whether noise, screaming, or even bell ringing at the back of a bus was genuine panic or hysteria, or whether it was - at least in part - high spirits.

Surely it can only be on the basis that the driver was fully aware of the panic or hysteria in the bus, and that it was of such a degree and nature that it could constitute a danger, and that he disregarded it wilfully and recklessly and regardless of the possible, perhaps foreseeable consequences that he could be convicted of dangerous driving. I do not think that the evidence went that far, and I cannot believe that the magistrate if he had approached the case in this way, and if he had not quite wrongly considered speed to have played a part in the incident, would have convicted the appellant of dangerous driving, or even of careless driving.

I therefore set aside the conviction and sentence passed on the appellant and acquit him.

(Sgd.) G.O.L. Dyke
JUDGE

LAUTOKA
27th September, 1979