Court held careless driving causing death is a substantial cause, not requiring sole causation, under Criminal Code s. 210.

[*368] 1972 June 12

(BOYADJIS, D.J.)

IN THE DISTRICT COURT OF PAPHOS

Div. Police Commander,

V.

Costas Michael,

Accused

(Case No. 1685/72).

Criminal Law - Causing death by careless act not amounting to culpable negligence Section 210 of the Criminal Code, Cap. 154 - Ingredients of the offence -- What amounts to causing death within the said section 210 is laid down in section 211 of the Code - Death caused through overturning of tractor, driven into a ditch in an effort to avoid collision with accused’s vehicle which was driven on the middle of the road - Accused's driving direct and efficient cause of the death.

Road Traffic - Careless driving - Causing death by careless driving - Section 210 of the Criminal Code, Cap. 154 See, also, under "Criminal Law".

Road Traffic - Careless driving - Failure of driver of heavier vehicle to stop in order to allow lighter vehicle to pass - Regulation 58(2) (e) of the Motor Vehicles Regulations, 1959 - Is evidence of careless driving or want of precaution on his behalf within the meaning of section 210 of the Criminal Code, Cap. 154

Police Sergeant Soteriades, for the Prosecution.

P. Sivitanides, for the Accused.

JUDGMENT

The following judgment was delivered by: -

BOYADJIS, D.J. Accused is charged under [*369] section 210 of the Criminal Code with causing the death off a. certain Sotiris Toannou, late of Episkopi, unintentionally whilst driving carelessly his bus No. TDU 444.

The accused is a professional bus driver who drives his bus carrying passengers every day from Episkopi to Paphos. His bus is a heavy vehicle weighing 95 CWT or 3,800 okes; it is 24 feet long and 7 feet wide.

The deceased was 8 years old on the date of his death and at the material time he was being carried as a passenger on the tractor-No. X 926 belonging to and driven by his father; he was sitting to the left of his father on a bench specially constructed to replace the usual small driver’s seat of the tractor, The weight of the tractor is 52 CWT or 2080 okes, its length11lr6ri and its width.6 feet at the rear and 4’'6" at the front.

The bus carried no passengers at the time and was being driven uphill by the accused along the main Episkopi Paphos road towards Paphos. The tractor was being driven by the deceased's father from the opposite direction downhill. Immediately after the two vehicles had passed by the side of each other the tractor overturned. The unfortunate boy crushed underneath the tractor died instantly as a result of internal haemorrhage due to rupture of the liver. The father was also injured. The accused stopped and drove the dead boy and the injured father to Paphos hospital. [*370]

This tragic accident occurred at the outskirts of Episkopi village on the afternoon of the 7th August, last, in broad day light. Apart from the two drivers, nobody else witnessed the accident. As it is usually the case, soon after the accident the police arrived at the scene. They found the tractor in its resultant position and a number of persons who had in the meantime gathered at the scene; none of the drivers were present, Measurements were taken and a plan on scale was prepared and is before me as Exhibit No.1; photographs were also taken which have likewise been produced and are before me as Exhibit No. 2. Both drivers were taken to the scene by the police on the following day and they agreed with what was marked on exhibit 1. An open statement in writing was taken from the accused by the police on 8.8.1971, which has been also produced and is before me as exhibit 3.

The above are the undisputed facts of the case. Before dealing further with the facts I consider it convenient to examine the legal aspect of the ease and the ingredients of the offence created by section 210 of our criminal code which reads as follows:-

"Any person who by want of precaution or by any rash or careless act, not amounting to culpable negligence, unintentionally causes the death of another person is guilty of a misdemeanour and is liable to imprisonment for 2 years, or to a fine not exceeding one hundred pounds".

In Nlicolas Nearchou v .The Police (1965)

2 C.L.R. [*371] 34, the elements constituting the offence under consideration were said to consist of:-

(i) causing the death of another person,

(ii) (a) by want of precaution, or

(b) by any rash act, or

(c) by any careless act; or, of course, by a combination of these alternatives.

Nearchou case was cited with approval and was followed/Pavlos Spiritos v. The Police (1969)2 J.S.C. 240.

The law is crystal clear in this respect with ample judicial authorities and the only difficulty which might arise is the application of the law to the facts of each particular case.

As regards element (i) above it is not in dispute and there is ample evidence to support a finding to the effect that Sotiris loannou, late of Episkopi, died on 7.8.1971 as a result of injuries he had sustained when the tractor of his father overturned.

As regards element (ii) above the issue of negligence is one of fact: See Andreas Hji. Michael v. The Police (1967) 10 J.S.C 1204 See also Kannas v. The Police (1968)4 J.S.C. 320. Furthermore, in Elpiniki Pana.viotou v. Georghios Kyriacou Mavrou (1970) 7 J.S.C. 659, one may read at page 663 of the report: “It is 'well settled that negligence is the failure to take reasonable care in the particular circumstances, and in each case the question whether a person has been negligent is a question of fact’’. [*372]

Negligent driving, whether it takes the form of a want of precaution or rash act or careless act on the part of the driver, is the driving which falls short of the accepted standards of skill and care and obedience to traffic rules or regulations which should be exhibited by a reasonable and prudent driver in any given circumstances. The test is an objective one. No question of mens rea enters into the offence. If a man in fact adopts a manner of driving which in all the circumstances is shown to have fallen below the required standard as far as care and skill are concerned, 10 then on the issue of guilt it matters not whether he was deliberately reckless, careless, momentarily inattentive or even doing his incompetent best. This is only relevant if it ever comes to sentence. See in this respect the case of V. Evans (1963)/Cr. App. R. 62, and Spiritos v. The Police 2 J.S.C. 240.

In the very recent English case of R.v. Doreen Rose Gosney (1971) 55 Cr. App. R. 502, Megaw L. J. dealing with the question of the necessity of the presence of "fault" on the part of the driver in cases of dangerous driving under section 2 of the English Road Traffic Act1960, is reported to have said at page 508 of the report:

‘’’Fault’ certainly does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with, proper standards of driving. Or does fault necessarily involve moral blame. Thus there is fault if an inexperienced or a naturally poor driver, while [*373] straining every nerve to do the right thing, falls below the standard of a competent and careful driver. Fault involves a failure;- a falling below the care or skill of a competent and experienced driver, in relation to the manner of the driving and to the relevant circumstances of the case. A fault in that sense, even though it might he slight, even though it be a momentary lapse, even though normally no danger would have arisen from it, is sufficient".

I will now proceed to apply the aforesaid principles of the law to the facts of the case in hand. I will first deal with the factual aspect of the case since the Court is faced with 2 different versions as to the circumstances under which the tractor had overturned.

The version for the prosecution is to the effect that the accused failed to take his extreme left hand side of the road or stop when faced with the oncoming tractor and continued his way along the middle of that very narrow road and thus obliged the tractor driver to swerve into aditch extending to the left of his berm to avoid a head on collision with the bus; the tractor hit on a big stone in the ditch, climbed a nearby heap of stones and overturned; there is also an allegation that before the knock on the stone the front right tyre of the tractor collided with the rear right tyre of the bus.

On the other hand the version of the defence is to the effect that the bus was being driven to the extreme [*374] left hand side of the asphalt as the berm to accused's side was not usable and that the tractor driver unnecessarily chose to swerve into the ditch and overturned after it hit on the s. tone in the ditch and accused cannot be heId responsible for the presence of the stone there. The defence denied that there was any collision at any time between any part of the tractor and the bus.

Four policemen and the tractor driver gave evidence for the prosecution on the issue of negligence. On being called upon to make his defence accused gave evidence on oath and called no witnesses. According to a joint request by the defence and the prosecution the Court visited and inspected the scene of the accident and both vehicles involved, after the case for the defence had closed. The visual examination was made under sec. 87 of the Criminal Procedure Law, Cap.155, in the presence of the accused and his counsel as well as the police officer appearing for the prosecution and a number of prosecution witnesses.

In Georghios Procopiou Halloumias v. The Police (1970) 11 J.S.C. 1122 the Supreme Court stressed the value of the real evidence in accident cases, which is usually more reliable than the versions of the 2 involved drivers and which also affords a good test for each of the two versions. At the conclusion of his judgment Vassiliades P.

made the following observation at page 1127 of the report; “I would not leave this case without observing that it is hardly safe, I should think, for a Court to make its findings in this type of case, by drawing entirely from the [*375] evidence of the one driver; and rejecting entirely the evidence of the other. The truth in such cases lies usually somewhere between the two versions; and the most reliable source for the truth is the real evidence. This is why it is highly desirable that plans, prepared by the police with all due care, should be drawn to scale wherever possible, as suggested time and again by judges dealing with traffic cases”.

With all the above principles in mind I will now endeavour to examine the evidence oral and real which is before me with a view of making my findings on the following side issues of fact which will themselves and in turn suggest the findings on the primary issue of fact before me, i.e. whether accused's driving at the time was negligent or not. These smaller or side issues, if I may describe them so, are the following:-

(a) Condition of the road. It is common ground that the asphalted part of the road varies in width from 10’6” at point N on Exhibit.1 to 12 feet at point E on Exhibit 1. In between these points, at points L and E, where approximately the two vehicles met the width of the asphalt is 11 feet. There is a berm which is usable to the near side of the direction of the tractor, which is mostly 4 feet wide and next to this berm there is a ditch 3-4 feet wide, about 5 inches deep, which was at the time covered with dry grass about 2 feet high, which covered and concealed anything which might exist therein and which might become a source of danger to anyone who might try to drive along it. There [*376] is a dry wall 4-5 feet high immediately after this ditch. This wall is shown with letters G1 and G2 on exhibit 1. Part of this wall was demolished for some reason or other and the stones fell into the ditch and covered the whole width thereof, at a length of 16 feet. This heap of stones was about 3 feet higher than the level of the berm and was clearly visible from road users approaching it from both directions. The heap of stones is shown with letter Y on exhibit 1. In view of the existence of the grass and the heap of stones and from the evidence before me as a whole, I am satisfied that this ditch cannot be said to have been usable and it cannot be considered as being part of the road.

As far as the berm to the nearside of the bus is concerned, it is not in dispute that there is a usable berm the width of which varies from 2’6” to 6 feet. The usable nature of this berm is interrupted according to the accused and P.W. 2 between points N and L on exhibit 1, i.e. for a distance of 51 feet. Between points H and L on exhibit I there is an opening into a rural side road which is also shown on exhibit 1 with letters ‘Agricultural road’’. According to these witnesses the level of the asphalt between these points is higher than the level of the berm by 4-12 inches and this makes its use dangerous. According to the tractor driver this part of the berm is also usable by all kinds of vehicles and the side road is also usable; the berm.was usable and it is still usable despite the fact that to-day its condition is worse than it used to be on the date of the accident, according to P.W. 6.

On this point I have had the advantage of inspecting the scene. Neither P.W.2 nor the accused did ever measure [*377] the difference in height between the level of the asphalt and the level of the berm. Since the side road is usable, traffic along the asphalt can only enter the side road through the berm between points N and I. on exhibit 1. I accept the evidence of the tractor driver in this respect and I find that the berm all along the nearside of the bus was usable at least by a vehicle as big as accused’s bus. The accused himself stated in his written statement to the police exhibit 3 that when the two vehicles were approaching each other he drove his' bus to his left hand side of the road with its left wheels onto the berm. Had the berm been not usable the accused would have never alleged that he made use of it. I do not accept the valuation of the situation and the opinion in this respect of P.W.2.

In view of the above I find that the asphalt by the scene of the accident is about 11 feet wide with usable berm about 11 feet wide to the left of the tractor ' and with a usable berm more than 2’ 6’’ wide to the left of the bus.

Although the roads by the scene of the accident was straight and the surface of it good and dry at the time, there is a sharp bend towards the direction of Episkopi which was ahead of the tractor and which the bus had negotiated shortly before the accident. As a result of this bend the visibility from point L towards Episkopi is limited to 140 feet.

(b) Whether there was any collision between the 2 vehicles. It is the allegation of the tractor driver P.W.6 [*378] that whilst the two vehicles were side by side he felt that the front right tyre of the tractor knocked on the rear right side of the bus somewhere near the rear right tyre of the bus. This occurred when he had swerved to his right in order to avoid knocking on the dry wall and also in order to cause the rear part of his tractor move aside and clear the way followed by the oncoming bus. The accused denied that the two vehicles ever collided in any way.

On this issue apart from the evidence of the two drivers there is the evidence of P.S.1394 - P.W. 5, who said that on 8.8.1971 he made a second and more careful examination of the bus (the first examination made in the dark on the date of the accident revealed no evident signs of collision) which revealed the presence of a blackening on the front part of the rear right mudguard of the bus which was caused by a tyre. Accused alleged that the blackening was probably caused 2-3 days earlier during the replacement of the rear tyres which occurred at a garage of Paphos. In fact the accused had replaced the rear tyres of his bus a few days before the accident. P.W.5 could not exclude the probability that the blackening was caused during that replacement.

The police authorised vehicle examiner - P.W.3 who inspected the tractor soon after the accident found its front right tyre empty of air and its rim dented which was the result either of the overturning or of collision with another vehicle; in the latter case he would expect similar damage (denting) on the other vehicle also. [*379]

On the above evidence, although collision between the two tyres cannot be excluded, on the contrary it is very probable, yet I do not Teel it safe to make a finding to the effect that a collision did in fact occur between any parts of the two vehicles before the tractor had overturned. I entertain doubts about the occurrence of such collision and I find for the accused on this issue; this should not be taken to mean that P.W.6 lied before me. He was at the time in a very awkward situation and could easily mistake the knock of the right front wheel on any stone by the boundary of the asphalt and the berm as being a knock of the wheel on the rear bus tyre which was very close to the tractor at the time.

(c) The course followed by both drivers from the moment they faced each other's vehicle till the tractor overturned and the reasons of the overturning.

On this point there is the evidence of the tractor driver - P.W.6, the accused and the police vehicle examiner. There is also the written statement of the accused - exhibit 3 and the real evidence found on the scene and marked on the plan exhibit 1 which is on scale. In this respect the question of credibility of the two

drivers is necessarily involved. I have had the advantage of watching the demeanour of both drivers for considerable

time in the witness box. I have also tested their evidence against the real evidence as well as the rest of the evidence before me. Without hesitation I have come to the conclusion as a result that the version of P.W.6 is the true one. I [*380] cannot attach any value on the version of the accused which, on the very material and important point of the use by him of the "berm to his left, is both in his evidence and in exhibit 3, very confused, self-contradictory and most unsatisfactory.

It was never put to P.W.6 when being crossexamined that the accused ever made use of the berm to his left. On the contrary, the version of the accused, as revealed from the line of cross-examination of all prosecution witnesses, was to the effect that the accused had to remain and did remain on the asphalt because the berm to his left was not' usable. In exhibit 3 the accused clearly stated that the left wheels of his bus were at the time on the berm. In his evidence he said in examination in chief that he proceeded on the extreme left' edge of the asphalt without making use of the berm. In cross-examination accused said at first the' same thing but at a later stage he alleged that 2-3 metres before the vehicles came side by side, he drove his bus onto the berm so as the front left wheel and the rear outside left wheel were actually on the berm whilst the tractor was passing by the side of' the bus.

The evidence of P.W.6 is more consistent with the real evidence including the brakemarks left by the bus and shown marked T-R and Q-P on exhibit 1. The brake marks T - E are parallel to accused’s left edge of the road and at a distance of 4 feet from it.

From the evidence, before me I am satisfied that {*381] from the moment the bus negotiated the bend it kept proceeding in the middle of the road till the moment it had stopped after the tractor had overturned. The bus was never driven onto accused’s left berm and it was not even driven on the extreme left edge of the asphalt; the bus occupied throughout practically the whole width of the asphalt almost. I am also satisfied that the accused very slightly reduced the speed of his bus, if at all, and that when the two vehicles were side by side the speed of the bus was at least 15 miles per hour.

I am also satisfied that when the two vehicles first met there was ample time and distance between them to enable both drivers to take those precautions which would, allow the vehicles to pass by the side of each other safely. As far as the tractor is concerned, I am satisfied that it was at first being driven on the middle of the road; when the oncoming bus appeared, P.W. 6 drove the tractor partly on his left berm and partly on the asphalt. As the bus kept proceeding in the middle of the road, the danger of a head on collision became imminent; P.W.6 directed the tractor towards the ditch to avoid such collision. Whilst the tractor was still in the ditch it hit on a big stone shown X on exhibit 1 and the steering system was badly damaged; the tractor proceeded for a few feet, climbed onto the heap of stones marked Y on exhibit 1 and came to a standstill for a moment, but immediately after it turned to-its right and overturned and its two passengers were trapped underneath and injured, the son unfortunately, fatally. The bus passed [*382] by the side of the tractor whilst P.W. 6 was manoeuvring the tractor into the ditch. The bus proceeded for a while and stopped.

The tractor overturned because, following the damage to the steering system due to the knock on the stone marked X on exhibit 1, it proceeded out of control and climbed the heap of stones marked Y on exhibit 1 which caused it lose its balance.

It is evident from the above that, acting under an emergency, in his effort to avoid a head on collision with the bus, which was being driven on the middle of the asphalt, P.W.6 drove into the ditch where unfortunately a big stone existed on which the tractor knocked.

The use of the ditch by P.W.6 was not by any means the result of a voluntary choice on his behalf but an avoiding action taken in the agony of an imminent danger of collision with the bus brought about by accused's mode of driving.

Having found the material facts of this case as stated hereinabove, the question is whether on these facts the accused's driving can be said to lack precaution or be careless.

There is no legal definition of driving without precaution or careless driving and there cannot be any legal definition. It has sometimes been said that it is for the jury to make up their minds on the evidence what actually happened and in their minds' eye to put themselves down at [*383] the scene of the accident and to ash themselves the question ’’had we seen this, should we have said without any doubt, that was a careless piece of driving?’".

Having put myself, being judge; and jury as well, in the picture of this accident as created in my mind by the aforesaid facts as found by me, without any doubt, difficulty or hesitation I answer the above question in the affirmative. Accused is indeed in fault; his want of precaution or carelessness consists in that:-

(1) Driving on a narrow and dangerous road and faced with an oncoming tractor, he failed to reduce speed considerably and drive to the extreme left side of the road as far as possible including the left berm, in order to allow the oncoming tractor enough room to his right to pass safely. Instead, what did accused do? He proceeded almost with the same speed on the middle of the asphalt and thus obliged P.W.6 to drive his tractor into a dangerous ditch to avoid an imminent head on collision with the bus.

(2) Even if I were to accept the alternative version of the defence as to the condition of the berm to accused's left hand side of the road, I would still come to the conclusion that accused was negligent because in such a case the total width of the asphalt and the berm to the left-side of the tractor was only 15 feet, whereas the total width of the two vehicles is 13 feet. Having In mind that a safety space should be left between the right sides of the two vehicles moving at the speed described by the accused, [*384] I would say that the width and condition of the road was such as to render it if not absolutely necessary, at least desirable, for the driver of the heavier vehicle to stop in order to allow the lighter vehicle to pass, as provided by Regulation'5S(2)(e) of the Motor Vehicles Regulations which reads as follows:-

“The driver of a motor lorry or motor omnibus shall, whenever it is necessary or desirable by reason of the width or condition of the road so to do, stop his lorry or omnibus in order to allow lighter motor traffic approaching or overtaking him to pass’’.

The accused who was driving a bus heavier than the tractor of P.W.6 had a duty cast upon-him by the aforesaid regulation to stop and allow the approaching lighter vehicle, i.e. the tractor to pass. Instead what did he do? According to his own evidence he continued his way at. a speed of 15 miles per hour and passed by the side of the moving tractor leaving between the bus and the tractor a space of only 6n, which cannot by any means be said to be a proper safety space between 2 big moving vehicles. Furthermore, as he had stated in his evidence, in such difficult situations he would expect the driver who is more polite to stop and he was not aware of any legal obligation on the driver of the heavier vehicle to stop. The ignorance of this legal obligation as well as the lack of any politeness on his part account, perhaps, for the behaviour of the accused whilst sitting at the wheel of his bus on the afternoon in question. [*385]

Failure by the accused to observe and comply with the aforesaid regulation is evidence of careless driving or want of precaution on his behalf within the meaning of section 210.

Learned counsel for the accused has submitted that even if the accused’s driving is found to be careless, he cannot be found guilty under section 210 because the cause of the death of the son of P.W.6 cannot be attributed or related to the negligence of the accused, whose driving is not the substantial cause of the death of the deceased. In support of his submission he cited the English authority Rex v. Gould

(1964) 1 W.L.R. 145.

This is the last point raised in this case and I shall endeavour to deal with it hereinbelow.

What amounts to "causing'’ the death of another person in the sense of section 210 is to be found laid down in section 211 of Cap.154 in the light of which section 210 should be read and interpreted.

Section 211 reads as follows:

”A person is deemed to have caused the death off another person although his act is not the immediate or not the sole cause of death in any of the following cases:-

(a) .....(b).....(c)......(d) ‘

(e) if this act or omission would not have caused death unless it had been accompanied by an act or omission of the person killed or of other persons". [*386]

In England, it means, that the position is as follows:

In R. v. Curohey (1957) 41 Cr. App. R.78, Finnemore

J. directed the jury that the dangerous driving must be "the substantial cause” of the death. Ina later case, R. v Gould (1963) 47 Cr. App. R. 24, Brabin J. left it to the jury in the form of "a substantial cause” of the death in order to warrant conviction as a charge of causing death by dangerous driving under section 1 of the Road Traffic Act, I960.

In the very recent case of R. v. James Hennigan (1971) 55 Cr. App. R. 262 (a prosecution under the aforesaid section 1 of the Road Traffic Act, 1960) the accused appealed, against his conviction, and his complaint was against certain parts of the judge's address to the jury which was to the effect that accused's dangerous driving must be a substantial cause

- not necessarily the sole cause of the collision which caused the death. In answer to a request by the jury for further guidance on the meaning of substantial cause” the judge said:” Substantial' means that it is not a remote cause of the death, but it is an appreciable cause of the death. It is rather like this: In a collision between two motor cars there may be both drivers each 50 per cent to blame and each would be a substantial cause of the collision. If on the other hand you get a situation where you can say that one of the drivers was four - fifths to blame and the other was one-fifth, you can say: 'I don’t regard one-fifth as being a substantial cause of the accident; if it is as 387] low as that, then the fellow who really caused the accident was the one who is four-fifths to blame’’’.

The complaint was that the above direction conveyed the impression tothe jury that they could find the appellant guilty if he was only little more that' one-fifth to blame.

The Lord Chief Justice delivering the judgment of the Court of Appeal said: "’'The Court would like to emphasise that there is nothing in the statute which requires the manner of the driving to be a substantial cause, or a major cause, or any other description of cause, of the accident. So long as the dangerous driving is a cause and something more than de minimis, the statute operate’’. Reference is then made to the aforementioned cases of R. v. Curphey and R. v. Gould and the judgment continuesas follows: "Though the 'word’ substantial’ does not appear in the statute, it is clearly a convenient word to use to indicate to the jury that there Must be something more than de minimis, and also to avoid possibly having to go into details of legal causation, remoteness and the like ........ It is perhaps unfortunate that the (the trial judge) dealt with the matter in the illustration he gave on the basis of apportioning blame, but when one analyses it, it is quite clear that the direction, if anything, was much too favourable to the appellant. The Court is quite satisfied that even if the appellant was only one-fifth to blame, he was a cause of the death of these two people. In these circumstances the appeal is dismissed".

In Cyprus, sections 210 and 211 of Cap.154 have [*388] in this respect received judicial interpretation in a number of cases by our Supreme Court.

In Nicolas Nearchou v. The Police (1965)

2 C.L.E.34, Vassiliades J., as he then was, said in his judgment at page 44 of the report. ‘’What amounts to causing the death 5 of another person, is clarified by the legislator in section 211. And what amounts to culpable negligence is given in section 205(2) of the Code’'. And at page 46 of the report: ’’The nature of negligence was left by the legislator as a question of fact in each particular case, to be established by the prosecution to the satisfaction of the Court, beyond reasonable doubt. Moreover the degree of accused’s negligence in each case, varying widely according to the particular circumstances, is one of the material facts to be considered in measuring the sentence in that case”

In Panayiotis Foka Kannas v. The Police

(1968) 4, J.S.C. 320, Triantafyllides, J., as he then was, delivering the unanimous judgment of the Supreme Court said at page 328 of the report:

"Even if the driver of the motor-car were to be blamed to a certain extent for such collision, the appellant was still properly convicted for causing the death of such driver and his passenger.

What amounts to ’causing’ death in the sense of section

210 is to be found laid down in section 211 of Cap.154, which provides that a person is deemed to have caused the death of another person, although his act is not the immediate [*389] or the sole cause of death, and even if his act ,or omission would not have caused the death unless it had been accompanied by an act or omission of the person killed or of other persons; and on the basis of the facts of this case it cannot be seriously argued that the deaths of the two occupants of the motor-car were not caused, in the sense of section 211, through the careless driving of the appellant.

The trial judge in his judgment referred, in this respect, to the test laid down in L v. Gould (1964) 1 W.L.R. p. 145; in that case it was decided that the driving of the accused should be ’a substantial’ cause of the death of the deceased but need not be the sole cause of the death. Even if we were to apply such a test in the case before us we would unhesitatingly say that the careless driving of the appellant was a substantial cause of the fatal accident in question"

On the facts of the case in hand as I have found them, I am satisfied that the entry of the tractor into the ditch and the subsequent knock of the tractor on the stone as well as the overturning thereof which caused the death, are so closely connected in respect of time and causation with the aforesaid negligent driving of the accused that accused's driving may be described as being the direct and efficient cause thereof. Even if the way of driving of his tractor by P.W.6 has been another cause of the deceased's death, on the facts of this case the careless driving of the accused was a substantial cause of the fatal accident under consideration and by no means a de minimis one. In [*390] all the circumstances I am satisfied that the death of the deceased was “caused” through the careless driving of the accused in the sense of section 211 of the Criminal Code.

For all the above reasons, I find the accused guilty as charged.

Accused found guilty as

charged.