England and Wales High Court (Administrative Court) Decisions

“... no person shall use, drive or cause or permit to be driven any goods vehicle exceeding 16.5 tonnes maximum gross weight in any restricted street during the prescribed hours.”

“In any proceedings relating to paragraph (a) above where it is shown that either:

(i) a person is the registered keeper of the vehicle at any date, or

(ii) a person was a hirer or a hire purchaser or lessee or conditional purchaser or owner of a vehicle at any date

it shall be presumed that that person was the user of the vehicle at that date unless that person shows on the balance of probabilities that he was not the user of the said vehicle at the said date and for the avoidance of doubt the existence or otherwise of any or such agreement as mentioned in (ii) shall not of itself mean that the registered keeper is not also the user of such vehicle.”

Mr Delaney gave evidence for the prosecution that he was an independent franchisee under the terms of an agreement produced to the Court. He was operating the vehicle exclusively for the respondent and was an experienced driver. Under the terms of the agreement he was required “to maintain all of the appropriate licences and insurances in respect of the vehicle” and “to comply in the conduct of the business with all applicable bye laws and regulations of a governmental nature applicable to the business or its conduct”. He and Mr Derek Casey, the Managing Director of the respondent company gave evidence as to the system which was operated. The respondent retained ownership of the vehicle under the terms of the franchise agreement, the vehicle was retained at the companies premises at all times, a “docket system” was in operation and the customer was a customer of the respondent. Mr Delaney said he was given a “docket” from the office which gave details of the sites. He would do anything between 5 to 8 different jobs a day. He would fill up with cement “and get a ticket of where to go”.

Mr Casey stated: “that the respondent company did not operate the trucks and they were not under the respondent company’s control” and “that the company had very little control of how each of the drivers got to the sites in question.” He stated he did not believe that, in view of the way in which the particular company operated, that he could operate such a system. The company had 9 individual operators at the Bow depot. “... [T]he respondent company did not know where some of the sites were going to be i.e. short term sites. Thus in some situations the driver would not know the single ‘point of destination’, so the respondent company provided a list of current sites.”

“13 I was of the opinion that the concrete lorry was being used for the purposes of the Respondent company’s business on a concrete pour on the day in question. The issue most in contention was whether Mr Delaney could be said to be under the ‘instruction’ and ‘control’ of the company in real terms on the day in question. This decision relied not solely on the contractual obligations between the parties, but took into account the system which London Concrete Limited put into place which was, in my view, relevant to, at the very least, the control issue.

14. I was of the opinion that, having heard all of the evidence relating to the way in which this particular company operated, (for example but not exclusively as to how the drivers would get to their site) and, as the circumstances related to the facts of the 4th September 1999 that the Respondent company had discharged on the balance of probabilities that it was not the user of the said vehicle at the said date.”

“Having determined that the concrete lorry was being ‘used’ for the purposes of the Respondent company, on its behalf on a concrete pour on the day in question: was it possible thereafter for the Court to conclude on a proper interpretation of the authorities and in light of the evidence that the Respondent company had discharged the burden of proof that it was not the ‘user’.”

“... I am of the view that it is not appropriate to think in terms simply of basing this conviction on vicarious liability. That is a concept which is rarely invoked in the consideration of offences of this character and it is quite clear from the line of authority that the correct approach is to consider whether there is a user of the vehicle by either the driver or the owner of the vehicle or both.” (page 6 F-H)

“A person is a user only if he is the driver or the owner of the vehicle, but it applies to the owner only if the driver is employed by the owner under a contract of services and at the material time he is driving on his employer’s business.” (The West Yorkshire Trading Standards Service v Lex Vehicle Leasing Limited (Divisional Court unreported 9 February 1995 per Dyson J, with whom McCowan LJ agreed.)

“‘Use’ bears a restricted meaning because it is commonly found in the Road Traffic legislation in conjunction with ‘cause or permit any other person to use.’ The words ‘use,’ ‘cause’ and ‘permit’ create three separate offences; and, whereas ‘using’ is an offence of strict liability, ‘causing’ and ‘permitting’ require mens rea. If a person were held to have used a vehicle where he did no more than give another authority to use it, virtually all cases of causing and permitting would also be cases of using, so that causing and permitting would become redundant. Moreover, if Parliament is to be taken to have intended that mens rea should be a necessary constituent of causing and permitting, it can scarcely have intended at the same time that strict liability should be imposed on those who caused or permitted because they were also using.

The effect is that ‘using’ is confined to the actual driver and his employer where the driver is acting within the scope of his authority.

It is possible that ‘use’ may be held to bear a wider meaning where it is not used in conjunction with causing or permitting [use]. This was the situation in the provisions alleged to have been breached in two of the charges in the present case; but, since the matter had not been raised in the court below, it was not thought right to make a distinction on appeal.”

“Can ‘use’ be interpreted widely enough so that operators of vehicles can be liable not only for their employee drivers but also for agency drivers and other not employed under a contract of service.” (page 8 F-H)

“Accordingly, Mr Alliott submitted that the word ‘use’ within the meaning of Article 3 of the Order should be construed to include use by any person, corporate or otherwise, whose vehicle is being used by him or for his purposes and on his behalf, under his instruction and control, and that the precise nature of the driver’s contract, whether it be of service or for services, is immaterial. He further submitted that the phrase ‘a person whose vehicle is being used’ is not restricted to ownership but encompasses also lawful possession by way of hire, hire-purchase, lease or conditional purchase.” (Underlining added)

“I agree. Leaving authority aside, it would, to my mind, be a curious, indeed astonishing, result if the registered keeper of a vehicle, being used for his purposes, on his business and on his instructions, is not to be regarded as using it within … [Article 3] merely because, on a particular day, the driver hired to drive the vehicle in those circumstances did not have a contract of employment with the owner of the vehicle.”

a. the person is either the owner of the vehicle or a hirer or hire purchaser or lessee or conditional purchaser of the vehicle (see Article 3(b)(ii)),

b. the vehicle is being used by him or for his purposes and on his behalf, and

c. the vehicle is being used under his instructions and control.

It does not matter whether the driver is an employee, or is self-employed or is a driver employed by an agency.

“A women’s guild organized an outing and arranged with a company, who carried on the business of operating motor-coaches to convey in a motor-coach a party at a fixed price per person. The organizer of the outing caused to be exhibited in a shop an advertisement giving particulars of the trip which stated ‘Few tickets left. Apply within’. The company had no knowledge and no reasonable means of discovering that any such advertisement had been made. ”

“It may seem, on the face of it, hard that a man should be fined, and, indeed, made subject to imprisonment, for an offence which he did not know that he was committing. But there is no doubt that the legislature has for certain purposes found that hard measure to be necessary in the public interest. The moral justification behind such laws is admirably expressed in a sentence by Dean Roscoe Pound in his book ‘The Spirit of the Common Law’, at p. 52: see The Law Quarterly Review, vol. 64, p. 176. ‘Such statutes’, he says, ‘are not meant to punish the vicious will but to put pressure upon the thoughtless and inefficient to do their whole duty in the interest of public health or safety or morals.’ Thus a man may be made responsible for the acts of his servants, or even for defects in his business arrangements, because it can fairly be said that by such sanctions citizens are induced to keep themselves and their organizations up to the mark. Although, in one sense, the citizen is being punished for the sins of others, it can be said that, if he had been more alert to see that the law was observed, the sin might not have been committed.”

Devlin J. also said (page 150):

“I think it a safe general principle to follow (I state it negatively, since that is sufficient for the purposes of this case), that where the punishment of an individual will not promote the observance of the law either by that individual or by others whose conduct he may reasonably be expected to influence then, in the absence of clear and express words, such punishment is not intended.”

“This is an intelligible proposition, however unjust the result might be, and must be faced, but observe how far it would go: were a coach proprietor to require his customer to make a statutory declaration that the trip had not been advertised, the owner would still be guilty if the declaration proved to be false, and that even if the declarant did not know of the falsity, as might be the case if one of the party, unknown to the promoter of the trip, had advertised it somewhere. Unless compelled by the words of the statute so to hold, no court should give effect to a proposition which is so repugnant to all the principles of criminal law in this kingdom. This is not to throw any doubt on the well-established principle that if there is an absolute prohibition and the prohibited act is done a penalty is incurred, but hitherto that doctrine has never been applied, as far as I know, to a case where the prohibited act was not that of the defendant, but of some person over whom he had no control and for whom he had no responsibility.

“whether Mr Delaney could be said to be under the ‘instruction’ and ‘control’ of the company in real terms on the day in question.”