State v Ilivitaro [1977] PGLawRp 543; [1977] PNGLR 249 (12 August 1977)

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CRIMINAL LAW - Particular offences - Dangerous driving causing death - Proof required that dangerous driving on part of accused the substantial cause of death - Need to show accused’s dangerous driving a cause of accident and something more than de minimis - Intervention by passenger after dangerous driving in the rain - Dangerous driving of accused substantial cause of death - Criminal Code s. 336(4).

On a charge of dangerous driving causing death under s. 336(4) of the Criminal Code the prosecution must prove that the dangerous driving on the part of the accused person was a substantial cause of the death of the deceased person but not that it was the sole substantial cause.

However, it is only necessary for the prosecution to show that the accused person’s dangerous driving was a cause of the accident and something more than de minimis.

The accused driver of an almost new vehicle with no mechanical defects, whilst descending a steep slope in wet and slippery conditions failed to engage second gear and proceeded downhill with no gear engaged. When approaching the bottom of the incline, the vehicle commenced to veer off the road, and a passenger in the front seat grabbed the steering wheel in an attempt to bring the vehicle back on course and it then left the road and capsized. As a result of injuries received a passenger Kedana died.

In the circumstances, at the time that the passenger intervened the vehicle was already out of proper control due to the dangerous driving of the accused, and the intervention was an attempt to bring it under control; accordingly the accused’s driving was a cause of the vehicle overturning and the subsequent death of Kedana, and something more than a minimal cause; it was a substantial cause in that the vehicle was in a position of danger before any intervention by the passenger.

The accused was charged with dangerous driving causing death under s. 336(4) of the Criminal Code.

WILLIAMS J: The accused is charged with dangerous driving causing the death of one Kedana Yaganama.

I find the following facts established to my satisfaction beyond reasonable doubt:

N2>1. That Kedana was a passenger in a motor vehicle driven by the accused on 27th March, 1977.

N2>2. That the vehicle capsized and that Kedana received injuries which caused her death.

N2>3. That shortly before the accident the vehicle driven by the accused commenced a descent down a steep incline.

N2>4. That he changed down to third gear and then attempted to change down into second gear but failed to engage that gear.

N2>6. That the accused took no or no adequate action to stop or effectively check the progress of the vehicle down the hill.

N2>7. That approaching a bend at the bottom of the incline the vehicle commenced to veer off to the right-hand side of the road.

N2>8. That a passenger in the front seat of the vehicle, one James, grabbed the steering wheel in an endeavour to bring the vehicle back onto its correct course.

N2>10. That at the time the vehicle, which was almost new, had no mechanical defect.

N2>11. That it was raining at the time and the road, a gravel one, was muddy and slippery.

N2>12. That the accused, who was not a licensed driver, had very limited experience as a driver.

On these findings it is my view that the accused was guilty of dangerous driving. The situation in which he found himself, descending a steep slope in wet and slippery conditions, required a high degree of care in order to maintain proper control of the vehicle. It is difficult to see, in the light of the evidence of the mechanical state of the vehicle, that he had any serious problem in engaging second gear, but assuming he had some momentary difficulty then ordinary prudence dictated that he bring the vehicle to a halt or at least slow it to a controllable speed, rather than to allow it to run on down the hill with no gear engaged. In failing to do so he produced a situation of danger to the vehicle and its occupants and, in my view, was guilty of dangerous driving.

It may well be that his failure to retain proper control of the vehicle arose from his inexperience and incompetence as a driver. But the authorities make it clear that the standard of care to be observed by drivers is an objective one and is universal in the sense that it does not vary from driver to driver so as to excuse a poor driver “doing his incompetent best”.

Mr. Andrew, for the accused, submits that even if the accused be guilty of dangerous driving simpliciter, the evidence does not establish the allegation of the circumstances of aggravation, namely that his dangerous driving caused the death of Kedana. This arises from the evidence that James grabbed the steering wheel shortly before the vehicle overturned. It is said that it would be mere speculation to assume that, had James not intervened, the same result may have ensued.

No authority directly in point was cited to me. But I think assistance on this point may be gained from the English cases of R. v. Gould[ccxx]¹ and R. v. Hennigan[ccxxi]². Both of those cases were concerned with the English statutory offence of dangerous driving causing death. Gould[ccxxii]³ was a collision case and the question arose as to whether the death of a passenger involved in the collision was attributable solely to the dangerous driving of Gould. The jury was directed by Brabin J. to the effect that it was not necessary, in order that Gould be guilty of dangerous driving causing death, that his dangerous driving was the sole cause of death. It was sufficient that his driving was a substantial cause of death. In Hennigan[ccxxiii]⁴ the Court of Criminal Appeal was dealing with a similar situation. It was said by Lord Parker in delivering the decision of the Court that a practice of directing juries that the dangerous driving was “the substantial cause of death” was wrong in that it put the question too favourably to accused persons. The correct position was stated by the Court of Appeal to be that, so long as the dangerous driving is a cause and something more than de minimis, then the statute operates.

In the present case there is some conflict in the evidence as to whether James turned the steering wheel once to the left and then back again. But however this may be I think that at the time that James intervened the vehicle was already out of proper control due to the dangerous driving of the accused, and that James’ intervention was an attempt to bring it back under control. In these circumstances I think it must be said that the accused’s driving was a cause of the vehicle overturning and was something more, in the language of the Court of Appeal in Hennigan’s case[ccxxiv]⁵, than a merely minimal cause. Rather, in my view, it was a substantial cause in that the vehicle was in a position of danger before any intervention on the part of James.

[ccxx](1963) 47 Cr. App. R. 241; [1963] 2 All E.R. 847.

[ccxxi](1971) 55 Cr. App. R. 262; [1971] 3 All E.R. 133.

[ccxxii](1963) 47 Cr. App. R. 241; [1963] 2 All E.R. 847.

[ccxxiii](1971) 55 Cr. App. R. 262; [1971] 3 All E.R. 133.

[ccxxiv](1963) 47 Cr. App. R. 241; [1963] 2 All E.R. 847.

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Papua New Guinea Law Reports

State v Ilivitaro [1977] PGLawRp 543; [1977] PNGLR 249 (12 August 1977)

Papua New Guinea Law Reports - 1977