THE EDITOR, Sir:
THE CONTRIBUTION of Dennie Quill in the January 13 edition of The Gleaner under the caption 'Dialling and driving don't mix' is both instructive and timely. Mr. Quill not only spoke eloquently to his own unfortunate experience while using the instrument and driving, but also presented empirical data pointing to the pitfalls of driving while using a mobile telephone.
This practice is distractive and dangerous. Many so-called developed countries have expressed their disapproval of such behaviour by specifically enacting laws to discourage the practice. In Jamaica, while Section 32 of our The Road Traffic Act does not specifically define what amounts to careless driving, it replicates almost exactly the provision of the section 3 of the English Road Traffic Act , in which jurisdiction there is a plethora of decided cases on the subject and, while not binding are considered highly persuasive in our jurisdiction.
Section 32-(1) of the Jamaica Act provides;
"If any person drives a motor vehicles on a road without due care and attention or without reasonable consideration for other persons using the road, he shall be guilty of an offence and shall be liable on conviction thereof to a penalty not exceeding $5,000.00."
The offence is summary and regarded as a conduct offence as distinct from a result offence. It
is punishable by a fine or imprisonment in default of payment. Every user of the road has in law a duty of care. There is also a standard of care which is largely an objective one and there is persuasive authority in the decisions of the English Courts all the way up to the House of Lords regarding the duty and standard of care.
STANDARD OF CARE
The standard of care is that which might be expected of a prudent, competent and reasonable driver in all the circumstances of the case.
Whereas all the circumstances which may be taken into consideration to successfully ground a charge of dangerous driving cannot be exhaustively stated, they include such factors as the state of the road, the volume of traffic, weather conditions and so on that need to be considered by the court.
The test as to whether a defendant is guilty of careless driving is primarily a question of fact. Each set of circumstances is unique and it is objective in the sense that the standard of driving demanded of a driver is that of an objective driver and what the persecution has to prove is that the defendant has departed from the standard of a reasonable prudent and competent driver.
The issue and certainly the test is determining whether the driving (given the distraction that often accompanies telephone conversations - whether the news is good or bad) amounted to careless driving. and therefore whether the defendant exercised the degree of care and attention that a reasonable and prudent driver would have in the circumstances.
A person is guilty of careless driving when it is proved that he has departed from the standard required. It matters not whether this was due to his negligence, incompetence, recklessness or even his deliberate intention.
There is as yet no binding decision on the issue of careless driving resulting from the use of cellphones while driving. I am sure that given the absence of legislation on this issue, it won't be long before such a matter is brought before our High Court and indeed our Court of Appeal given the pervasiveness of this conduct.
POINT SYSTEM
Under the traffic ticketing and point systems of Jamaica a conviction for careless driving, attracts four demerit points. Three such convictions will result in a mandatory suspension of the holder's drivers licence.
Apart from having one's licence suspended and possible imprisonment in default of payment, there is also the risk of civil liability for injury to other users of the road.
If fatality results from such conduct, manslaughter or causing death by reckless driving may eventuate while an amendment to our Road Traffic Act specifically prohibiting the use of 'cellular phones' while driving may be desirable, it is my opinion that the existing law supported by highly persuasive decided cases should assist our courts to hear and determine whether the use of cellular telephones while driving under the particular circumstances amounts to careless driving.
I am, etc.,
KEITH GARDNER
Attorney-at-Law
Asst. Commissioner of Police
I/c Area 1
