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Chapter 46: Careless or Inconsiderate Driving

Table Of Contents  

[46.0] Introduction 

This chapter will examine the offence of 'Careless Or Inconsiderate Driving', as provided for by section 40 of the Traffic Act (Ch. 131). 

For the purpose of consistency the offences under the Traffic Act (Ch. 133) should be interpreted  

'in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith', see section 3 of the Penal Code (Ch. 26). 

See: Road Traffic Act 1960 (UK), section 3.

[46.1] Careless Driving

[46.1.1] Offence 

Section 40(1) of the Traffic Act (Ch. 131) states: 

'If a person drives a motor vehicle on a road without due care and attention is guilty of an offence and liable to a fine of five hundred dollars or to imprisonment for six months, and in the case of a second or subsequent conviction to a fine of seven hundred dollars or to imprisonment for six months or to both such fine and such imprisonment.'

[46.1.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] did drive a motor vehicle to wit a [specify the motor vehicle] on a road namely [specify the name of the road] without due care and attention by [specify the driving of the defendant].'

[46.1.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. Drive 

E. Motor Vehicle 

F. Road 

G. Without Due Care And Attention

[46.2] Inconsiderate Driving

[46.2.1] Offence 

Section 40(1) of the Traffic Act (Ch. 131) states: 

'If a person drives a motor vehicle on a road […] without reasonable consideration for other persons using the road and liable to a fine of five hundred dollars or to imprisonment for six months, and in the case of a second or subsequent conviction to a fine of seven hundred dollars or to imprisonment for six months or to both such fine and such imprisonment.' 

[46.2.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] did drive a motor vehicle to wit a [specify the motor vehicle] on a road namely [specify the name of the road] without reasonable consideration for other persons using the said road by [specify the driving of the defendant].' 

[46.2.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. Drive 

E. Motor Vehicle 

F. Road 

G. Without Reasonable Consideration For Other Persons Using The Road

[46.3] Drive 

The element 'Drive' is examined commencing on page 709.

[46.4] Motor Vehicle 

The element 'Motor Vehicle' is examined on page 710.

[46.5] Road 

The element 'Road' is examined on page 710.

[46.6] Without Due Care & Attention 

[46.6.1] Introduction 

The term 'Without Due Care And Attention' is not defined in the Traffic Act (Ch. 131) or the Interpretation and General Provisions Act (Ch. 85). 

In Idufo'oa v R [1982] SILR 55 Daly CJ outlined the following 'test' to be applied in order to determine whether a defendant was 'Driving Without Due Care And Attention' at pages 55 – 56: 

'The question for the magistrate was then, have the prosecution made me sure that the appellant departed from the standard of a reasonable, competent and prudent driver in those circumstances?' (emphasis added) 

In McCrone v Riding [1938] 1 AllER 157 Lord Hewart CJ, delivering the judgment of the Court, held at page 158: 

'The words of the section are that it is an offence when a person drives a motor vehicle without due care and attention or without reasonable consideration for other persons using the road. 

That standard is an objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway. It is in no way related to the degree of proficiency or degree of experience attained by the individual driver.' (emphasis added) 

In Simpson v Peat [1952] 2 QB 24 [[1952] 1 WLR 469; [1952] 1 AllER 447] Lord Goddard CJ, delivering the judgment of the Court, stated at pages 27 – 28: 

'It is by no means impossible, and indeed must on occasions happen, that a situation of danger arises in which a motorist is involved but it cannot be said that he caused it by driving dangerously, […], the offence can be committed although no accident takes place; equally because an accident does occur it does not follow that a particular person has driven either dangerously or without due care and attention; but, if he has, it matters not why he did so. 

Suppose a driver is confronted with a sudden emergency although no fault of his own; in an endeavour to avert a collision he swerves to his right – it is shown that had he swerved to the left the accident would not have happened; that is being wise after the event and, if the driver was in fact exercising the degree of care and attention which a reasonably prudent driver would exercise, he ought not be convicted, even though another and perhaps more highly skilled driver would have acted differently.' (emphasis added) 

In determining whether a defendant departed from the standard of a reasonable, competent and prudent driver in the circumstances the court will need to examine the circumstances in question. 

Therefore, the prosecution should produce evidence of: 

·                     'speed'; and 

·                     'manner of driving', 

which are examined commencing on page 713. 

In Ben Donga v R (Unrep. Criminal Appeal Case No. 16 of 1994) Palmer J stated at pages 1 – 2: 

'The particulars of the charge read: "Mr Ben Donga on the 14th day of January 1994 at Honiara in the Guadalcanal Province, drove motor vehicle No.8567 on a road without due care and attention." 

The records of the Magistrate's Court reveal that the accused was unrepresented, and that the charge was read over and explained. What this Court does not know is, what was explained, and how the charge was explained. The particulars simply stated that the accused drove without due care and attention. The words "due care and attention" are technical terms. Had the accused been represented, then it could possible be acceptable. However, in the case of this accused, how would he know that what he was being accused of fell below the minimum requirements that the law imposes upon a reasonable, prudent driver? The only way he could understand that is, if it is sufficiently made clear in the particulars of the offence, in what way his driving was careless, or without due care and attention. As worded, the particulars of the offence are inadequate and therefore bad. 

Magistrates should be cautious in ensuring that there are sufficient particulars in the information to enable him to put the charge to the accused, and if necessary, to explain it to the accused. Where the particulars are inadequate, then the prosecutor should be required to amend the information and insert the necessary details. It is good practice too to ask the accused if he understood the charge before taking his plea.' (emphasis added) 

See also: R v Bristol Crown Court; Ex parte Jones; Jones v Chief Constable of Avon & Somerset Constabulary (1986) 83 CrAppR 109.

[46.6.2] Minor Traffic Accidents 

A defendant is not driving 'without due care and attention' simply because as a result of a minor and common error of judgment a traffic accident occurs. 

In Lajos v Samuels (1980) 26 SASR 514 Jacobs J, sitting alone, held at page 517: 

'To hold that such a minor and common error of judgment [, referring to bumping into a stationary vehicle behind when attempting to reverse into a parking space,] is sufficient to constitute an offence of driving without due care is, in my view, to make a mockery of the law. Such a common and minor occurrence in modern congested traffic conditions cannot of itself be said to involve any substantial departure from the standard of care expected of a reasonably competent and skilful driver. Such a test does not appear to have been considered by the learned Special Magistrate, who was more concerned to find whether or not there had been an "accident" but the fact of an accident cannot of itself be conclusive (Simpson v Peat [1952] 2 QB 24; Dayman v Gill [1941] SASR 208).' (emphasis added) [words in brackets added]

[46.6.3] Unexplained Traffic Accidents 

An 'unexplained traffic accident' is an accident for which the defendant refuses to answer questions and there are no witnesses. Depending on the circumstances, the prosecution may be able to prove that such traffic accidents result from defendants driving 'without due care and attention'. In such cases, the prosecution must rely on 'circumstantial evidence' to prove that offence 'beyond reasonable doubt'. 

As regards 'circumstantial evidence' the test to be applied is: 

'The guilt of the accused must be the only rational inference open to the Court to find in the light of the evidence', see R v Dudley Pongi (Unrep. Criminal Case No. 40 of 1999; Muria CJ; at page 22). 

Therefore, the prosecution must be able to satisfy the court that the only rational inference that the circumstances of the traffic accident enable it to find was that the defendant was driving 'without due care and attention'. 

The law in relation to 'Circumstantial Evidence' is examined commencing on page 183.

[46.7] Without Reasonable Consideration 

The term 'Without Reasonable Consideration' is not defined in the Traffic Act (Ch. 131) or the Interpretation and General Provisions Act (Ch. 85). 

The prosecution has to prove 'beyond reasonable doubt' that the defendant departed from the standard of a reasonable, competent and prudent driver in all the circumstances of the case which is an 'objective' test. 

In McCrone v Riding [1938] 1 AllER 157 Lord Hewart CJ, delivering the judgment of the Court, held at page 158: 

'The words of the section are that it is an offence when a person drives a motor vehicle without due care and attention or without reasonable consideration for other persons using the road. 

That standard is an objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway. It is in no way related to the degree of proficiency or degree of experience attained by the individual driver.' (emphasis added) 

In Dilkes v Bowman Shaw [1981] RTR 4 the Court held that an actual road user must be inconvenienced by the driving of the defendant. 

However, a road user cannot be inconvenienced if the defendant is complying with the provisions of the Traffic Act (Ch. 131) and the Traffic Regulations (Ch. 131). 

[46.8] Defences 

In Broome v Perkins (1987) 85 CrAppR 321 the defendant was charged with 'Driving Without Due Care And Attention' and he raised the defence of 'Automatism'. 

Gildewell J, delivering the judgment of the Queens Bench Divisional Court, held at page 332: 

'The question which is posed in the case can be rephrased to ask: "On the evidence, could the justices properly conclude that the defendant was not conscious of what he was doing and that his actions were involuntary and automatic throughout the whole of the five mile journey over which the erratic driving was observed?" If, during a part or parts of that journey, they were satisfied that his actions were voluntary and not automatic, at those times he was driving and clearly the way in which he was driving was such that they should properly have convicted him of driving without due care and attention. 

When driving a motor vehicle, the driver's conscious mind receives signals from his eyes and ears, decides on the appropriate course of action as a result of those signals, and gives directions to the limbs to control the vehicle. When a person's actions are involuntary and automatic his mind is not controlling or directing his limbs.' 

The law in relation to other defences which may be raised in respect of a charge under section 40 of the Traffic Act (Ch. 131) is examined commencing on page 720.

[46.9] Jurisdiction 

The jurisdiction of the Courts for this offence is examined commencing on page 14. 

The law relating to 'Sentencing' in respect of this offence is examined commencing on page 918, including the 'Disqualification Of Drivers' Licenses'.

[46.10] Related Offences 

The following offences are related to the offence of 'Driving Without Due Care & Attention Or Inconsiderate Driving': 

·                     'Reckless Or Dangerous Driving', section 39(1) of the Traffic Act (Ch. 133). Those offences are examined commencing on page 706; and 

·                     'Careless Or Inconsiderate Cycling', section 50 of the Traffic Act (Ch. 133).

[46.11] Compared With Reckless Or Dangerous Driving 

Whilst the offences of 'Driving Without Due Care And Attention Or Reasonable Consideration' and 'Reckless Or Dangerous Driving' are related to a departure of the standard of driving that is required from a reasonable, competent and prudent driver, the difference lies in the degree of departure from that standard. The offence of 'Reckless Or Dangerous Driving' which is examined commencing on page 706 is a 'gross departure' from that standard, whilst 'Driving Without Due Care And Attention Or Reasonable Consideration' is a 'minor departure', see R v Duncan (1953) 11 SASR 592.