High Court allows dismissal of no-insurance charge where employee obeyed orders despite personal licence default.

[2019] IEHC 418

THE HIGH COURT

[2018 No. 508 S.S.]

IN THE MATTER OF SECTION 52 OF THE COURTS

(SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF GARDA DAVID GAYE TRAINOR)

PROSECUTOR

AND

AOIFE KIRWAN

ACCUSED

JUDGMENT of Mr. Justice Meenan delivered on the 20th day of May, 2019

This is a case stated by a Judge of the District Court pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act

1961.

Background

1. The accused faces a charge contrary to s. 56.1 of the Road Traffic Act of 1961 (as amended) (“the Act of 1961”) that she used a

mechanically propelled vehicle without insurance. She appeared before the District Court on 18 May 2017 to answer this charge.

2. The facts as proved or admitted or agreed and as found by the District Judge were as follows: -

(i) On 20 October 2016 the accused was involved in a single vehicle road traffic accident at Ballycahane, Portlaw, County

Waterford, that being a public place. At the time the accused was driving the vehicle in the course of her employment

and at the request of her employer. The Gardaí attended the scene and made the usual request for production of

insurance documents which in due course were never produced.

(ii) The accused was employed as a full time driver and was driving in the course of her employment and at the direction

of her employer on the date of the accident. This was verified by the production of a valid P60 and accepted by the

prosecution.

(iii) All the vehicles owned by the employer, including the vehicle being driven by the accused on the date in question,

were covered by a valid policy of insurance. This policy certificate was produced and accepted by the prosecution.

However, the policy of insurance contained a clause that any driver must have the correct driving licence to drive the

vehicle in question or the driver’s driving would not be covered. The vehicle being driven by the accused on the date in

question required the driver to hold a class C licence but the accused only held a class B licence. As a consequence, the

accused did not have the benefit of insurance cover as her driving licence did not cover her to drive the vehicle in

question.

(iv) It was submitted, on behalf of the accused, and not contradicted by the prosecution, that the accused had

completed the theory test for the class C licence but had not as yet completed the test. It was accepted therefore by

the accused that she in fact had actual knowledge of the fact that the driving licence did not cover her driving.

3. The accused sought to rely on the provisions of s. 56.6 of the Act of 1961 and applied to have the charge dismissed. Section 56.6

states as follows: -

“Where a person charged with an offence under this section was the servant of the owner of the vehicle, it shall be a

good defence to the charge for the person to show that he was using the vehicle in obedience to the express orders of

the owner.”

Question on which the opinion of the High Court is sought

4. Can the accused raise the defence provided for under s. 56.6 of the Act of 1961 in defence of a charge under s. 56(1) and (3) of

the Act of 1961 in circumstances where the offence arises as a consequence of the default of the employee and not the employer in

circumstances the employee is aware of these facts at the time of the offence?

Consideration of question

5. It is necessary to analyse the provisions of s. 56(6). The subsection provides that “it shall be a good defence to the charge for the

person to show”: -

(i) he/she was a servant of the owner of the vehicle and

(ii) he/she was using the vehicle in obedience to the express orders of the owner.

6. It is clear on the facts as set out in the case stated that the accused was a servant of the owner of the vehicle and was using

the vehicle “in obedience to the expressed orders of the owner”. This clearly constitutes a “good defence” under s. 56(6).

7. The “good defence” as is provided for in s. 56(6) does not provide that the employee must meet the requirements of the particular

insurance policy. In this case the accused did not meet the requirement of the policy in that she did not have the class of driving

licence required.

8. The Court was referred to the decision in A.G. (Hayes) v. Downes [1959] 93 ILTR, at p. 121. This case concerned the provisions of

s. 56(6) of the Road Traffic Act 1933. This is in the same terms as s. 56(6) of the Act of 1961. In this case both the owner of the

motor vehicle and the driver were charged under s. 56 with having no insurance. The driver of the motor vehicle, who had no licence,

sought to avail of the provisions of s. 56(6) in that he was driving the motor vehicle “to the expressed orders of the owner”. This

defence was upheld. It was held, however, that the defendant, as owner of the motor vehicle in question, ought not to have the

charge against him dismissed.

Conclusion

9. By reason of the foregoing, the answer to the question upon which the opinion this Court is sought is “yes”.