UPDATED: The Legal Liability of a Driver

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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) which was not too long ago amended vide Road Transport Act (Amendment) 2020 to enhance the penalties for offences therein and the said amendments took effect from 23rd of October 2020. 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. Of late some of the sections in RTA 1987 have received widespread coverage due to the cases involving “Mat Lajak”, “Mat Rempit” and “Minah Rempit” and so on. 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 and / or driving without due consideration for the safety of others.

b) Consequences of conviction under section 43

First Conviction

If convicted under this section the minimum fine is five 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.

Second or Subsequent Conviction

For a second or subsequent offence, the minimum fine is ten thousand ringgit up to a maximum of fifteen thousand ringgit but the discretion to impose an imprisonment term up to twelve months remains the same. Also, in the case of a second or subsequent conviction the court has the discretion to disqualify the offender from holding or obtaining a driving licence unless the court having regard to the lapse of time since the date of the previous or last previous conviction or for any other reason order, thinks fit to order otherwise.

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

First Conviction

If convicted under this section the consequences are more severe than section 43 RTA. The minimum fine for the first time 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 license 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.

Second or Subsequent Conviction

If convicted for a second or subsequent time the minimum fine will be ten thousand ringgit and not more than twenty thousand ringgit and to imprisonment for a term not exceeding ten years. The disqualification from driving will be for ten years.

4) Causing death by reckless or dangerous driving

a) Section 41 RTA 1987

The requirements of this offence are 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 passenger in one’s own vehicle or that of other road users.

b) Consequences

First Conviction

If convicted under this section the consequences are even more severe than the previous two sections. The minimum fine is twenty thousand ringgit to a maximum of fifty thousand ringgit and in addition to that the court must impose a minimum of five 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 twenty thousand ringgit and a jail term of 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 five years from the date of conviction. If the driver was the holder of a probationary driving licence the court will revoke the driving licence.

Second or Subsequent Conviction

For a second or subsequent conviction the minimum fine will fifty thousand ringgit and not more than one hundred thousand ringgit and the minimum imprisonment will be ten years and not more than fifteen years. The disqualification from driving will be for a period of ten years from the date of conviction.

5) Conclusion

Despite the legal consequences of bad driving being severe as discussed above, and in some cases even threaten the livelihood if disqualified from driving, it is sad to note that the number of accidents resulting in injuries and fatalities have not come down. The fight against the menace of dangerous driving must be multi – pronged, namely by strict enforcement of the existing law, inculcating in the citizenry obedience to the law via schools, good parenting and at the same time awareness of the dire consequences that awaits in the event the law is flouted. With that, stay safe and stay alert on the road.

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