THE LEGAL LIABILITY OF A DRIVER

1) Introduction

Driving is not a luxury but a necessity in today’s world. This is evidenced by the number of motorized vehicles on the road. However the right to drive is subject to rules and regulations. In Malaysia they are found in the Highway Code (LN 165/1959), Road Traffic Rules 1959 (LN 166/59) and the Road Transport Act 1987 (RTA 1987). Any breach of the aforesaid rules and regulations can give rise to legal liability. Legal liability means that the driver can be charged for an offence. This article will focus only on some of the offences a driver can be charged with under the aforesaid rules and regulations while driving or managing a motor vehicle and the consequences that follows.

2) Careless and Inconsiderate driving a) Section 43 RTA 1987

In the said section it is clearly stated that it is an offence to drive a vehicle on the road “without due care and attention” or “without reasonable consideration” for other road users. It means driving in a negligent manner. Negligent driving happens when there is that lack of that degree of care and attention that a reasonable and prudent driver would have exercised in the circumstances. In fact, the provisions in the Highway Code and Road Traffic Rules cover almost all the do’s and don’ts while driving such that a breach of them would be, depending on the circumstances prima facie (on the face of it) evidence of negligence. Examples are a plenty but just to name a few, usage of hand-held telephones while driving, overtaking along double continuous lines on a road, driving above the speed limit, cutting across the path of oncoming vehicles and changing directions without appropriate warning. Generally a driver will be charged under this section where his negligence has resulted in an accident causing severe injury to another road user. Even in the absence of involvement in an accident a driver can be charged under section 43 if the manner of driving was negligent per se such as taking part in an illegal race.

b) Consequences of conviction under section 43

If convicted under this section the minimum fine is four thousand ringgit up to a maximum of ten thousand ringgit and in addition the court has the discretion to impose an imprisonment term of up to twelve months. Also the conviction will be endorsed on the driving licence unless there are special reasons.

c) Rule 10 LN 166/59

Sometimes, even though there is an element of negligent driving, instead of charging the driver under section 43, the Investigating Officer can issue a summon under Rule 10 LN 166/59, for example, if the other party suffered minor injuries only or may also have contributed in some minor way to the accident. In Rule 10 the offence is stated as failure “to exercise due control over the movements of the vehicle” which is akin to negligent driving. A Rule 10 offence is compoundable and the maximum fine is a three hundred ringgit and in that sense it is not as serious as a charge under section 43 RTA 1987.

3) Reckless and dangerous driving
a) Section 42 RTA 1987

This offence is defined in the section as driving “on a road recklessly or at a speed or in a manner which having regard to all the circumstances (including the nature, condition and the size of the road and the amount of traffic which is or might be expected to be on the road) is dangerous to the public.” At a glance it can be seen that a higher level of blameworthiness in the manner of driving is required to be liable under this section as compared to section 43 RTA offence because the words “recklessly” and “dangerous” are used. The word recklessly means without regard to the danger or the consequences arising. Further the section identifies some of the factors that can be taken into account such as the speed, the nature and size of the road and the traffic condition. Ultimately it will all depend on the prevailing circumstances. For example, A in his Ferrari while coming down hill overtakes a motor lorry at a sharp corner and collides with an oncoming Proton driven by B and B is seriously injured. At the scene, the speed limit was only 60 km/h and there is a double continuous line prohibiting overtaking. This would be classic case where A can be charged under section 42. A driver can also be charged for this offence even if he is not involved in an accident as long as he drove recklessly or dangerously.

b) Consequences

If convicted under this section the consequences are more severe than section 43 RTA. The minimum fine is five thousand ringgit up to a maximum of fifteen thousand ringgit and in addition the court has a discretion to impose an imprisonment term of up to five years. Also any conviction under this section will be endorsed on the driving licence and the driver is disqualified from holding or obtaining a driving licence for a period of not less than two years from the date of conviction.

4) Causing death by reckless or dangerous driving
a) Section 41 RTA 1987

The requirements of this offence is exactly the same as in section 42 but with the additional element of causing the death of a person. As death is involved we are invariably looking at an accident scenario. The death can that be of a own passenger or other road users.

b) Consequences

If convicted under this section the consequences are even more severe than the previous two sections. The minimum fine is five thousand ringgit to a maximum of twenty thousand ringgit and in addition to that the court must impose a minimum of two years imprisonment going up to a maximum of ten years. Therefore for this offence the minimum sentence the court can impose is a fine of five thousand ringgit and a jail term of two years. Also any conviction under this section will be endorsed on the driving licence and the driver is disqualified from holding or obtaining a driving licence for a period of not less than three years from the date of conviction. If the driver was the holder of a probationary driving licence the court will revoke the driving licence.

5) Conclusion

Despite the legal consequences of bad driving being severe as discussed above and in some cases threaten the livelihood if disqualified from driving, it was sad to note that even during the period of the Movement Control Order due to Covid -19, an alleged drunk driver collided with and caused the death of a police personnel manning a road block in Kajang. The incident resulted in the call for a more deterrent sentence. Therefore stay safe and stay alert on the road.

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