Thomas v Hooper; Thomas v Cooper [1986]
- Reported: (1986) 150 J.P 53; [1986] R.T.R. 1; THE TIMES, OCTOBER 25, 1985
- Year: 1986
- Court: High Court
FACTS:
The Defendant was sitting in the driving seat of a Morris van which was being towed on a road by a Bedford van. The Morris was attached to the Bedford by chains wrapped around the rear bumpers of the Bedford and front bumper of the Morris, so that the bumpers were touching but the vehicles would separate if the Bedford swerved suddenly. The steering of the Morris was locked and no key to release it was available, the brakes were seized-up so that its wheels were unable to turn. No test certificate was in force relating to the Morris and no insurance related to any use of the Morris by the defendant.
The Defendant was charged with using the Morris on the road, contrary to section 44(1) and section 143(1) of the Road Traffic Act 1972 . He was convicted by justices and he appealed to the Crown Court. The defendant and the driver of the Bedford gave evidence that, the Morris’s road wheels being unable to turn round, it was being dragged along the ground by the Bedford. The Crown Court, who felt some doubt about that evidence but made no finding that the road wheels of the Morris did turn round, dismissed the appeal.
Section 44(1) of the Road Traffic Act 1972 provides:
‘A person who uses on a road … a motor vehicle … as respects which no test certificate has been issued within the appropriate … time, shall be guilty of an offence’.
Section 143(1) provides:
‘… it shall not be lawful for a person to use … a motor vehicle on a road unless there is in force in relation to the use of the vehicle … a policy of insurance … in respect of third-party risks … and if a person acts in contravention of this section he shall be guilty of an offence’.
The Defendant’s appealed. The question for the opinion of the court was whether the Crown Court was right in concluding that the Defendant was using the motor vehicle.
HELD:
The appeal was allowed.
Glidewell LJ took the view that in the light of the absence of any finding by the Crown Court that the road wheels of the Morris were turning and since it was in a sense an inanimate hunk of metal being towed along the road rather like a sledge and was incapable of being controlled because the normal control mechanisms of a motor vehicle were all inoperative. The Defendant was in no sense using the Morris, for the only purpose for which he could be in it was to give warning if any danger arose. The Crown Court were wrong in concluding that he was using it within the meaning of ‘uses’ under section 44(1) or ‘use’ in section 143(1) of the Act of 1972.
Glidewell LJ found that the important point was the car was incapable of being controlled because the mechanisms by which a motor car is normally controlled were all inoperative. Glidewell found it was a situation which was not one that often arises, and it certainly does not arise with a vehicle where the engine was not working but which was being towed along the road by another vehicle with the steering being operated and the brakes working. In such a case Mr Naish conceded, and rightly conceded in my view, that the vehicle would be being used on the road by whoever was at the steering wheel.
On the particular facts of this case Glidewell concluded that his submission is right, that the test of control is in the peculiar circumstances the operative test, that the vehicle did not pass and accordingly the Crown Court were wrong to dismiss the appeal.
The appeal was allowed in respect of both charges and the answer to the question which was posed: ‘Whether the Crown Court was right in concluding that the defendant was using the motor vehicle?”, was, ‘No’.
Woolf J agreed.
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