Court acquits driver of careless driving when mechanical defect defense creates reasonable doubt despite prior service.

[*250] 1983 Dec.

(KALLIS, AG. D.J.)

IN THE DISTRICT COURT OP NICOSIA

Nicosia Police,

v.

Chrysostomos Eftychiou,

Accused.

(Case No. 13468/83)

Road Traffic - Careless driving - Defence of mechanical defect in vehicle - How far available - Burden of proof -

Experts - Evidence of - Approach to.

Road Traffic - "Other persons using the road" in section 8 of the Motor Vehicles and Road Traffic Law, 1972 (Law 86/72). - Includes passengers in the vehicle being driven.

P.S. Efthymiou, for the Prosecution.

N. Pelides with P. Frakalas, for the Accused.

JUDGMENT

The following judgment was delivered by:-

KALLIS. AG. D.J. Whilst the accused, was driving [*251] his car on the Macheras - Nicosia road, in the direction of Nicosia it deviated from its course towards the right of the road and it was overturned into a precipice. As a result the child of the accused was fatally injured and he himself sustained serious injury. Hence his prosecution on onecount of the offence of driving without due care and attention contrary to sections 8 and 19 of the Motor Vehicles and Road Traffic Law, 1972 (Law 86/72).

The evidence:

P.W.1, P.C. 1723 Christoforos-Poniros a police photographer, an expert in the estimation of speed on the basis of brake-marks, and an authorised vehicle examiner testified that the car of the accused left brake-marks of a length of 52 - the right ones - and of a length of 42' - the left ones. After the brake - marks there were, three lines of skiddings (ihni plagias olisthiseos). The left line was of a length of 57’, the middle one of a length of 20' and the right one of a length of 30'. The car

of the accused at its resultant position was overturned with the wheels-facing the sky. The width of the road at the scene

was 12' and on each side thereof there was non-usable berm ranging from 2' -2½'. To the right of the road, in the direction of accused, there was a precipice and to the left an "ohtos". The brake-marks at their starting point were 3' from the

left edge of the tarmac and at their ending point 3½ No test was carried out in order to ascertain the speed of the car

because the [*252] brake-marks ("stopper") were within a limit which does not signify a very high speed. The road, in the direction of accused was downhill, it had a 20 - 25% downhill inclination. The tarmac was in a very bad state for it had many "patches" and loop-holes ("langoufes"). There were also, many anomalies ("toumpomata") due to subsidence ("kathizisis") of the ground and due to use Of the road by heavy vehicles. The car of the accused

was a Seat van type, with a hydraulic brake system on all wheels assisted by servo. Its brake-system was checked whilst the car was overturned it

was effective. It was, also, later checked on the road and the car was stopping at normal distance. The

hand-brake was checked whilst the car was overturned and was found engaged with such force so that great effort was exerted in order

to disengage it. It was

tested, also, whilst the car was in motion and was effective. The steering system was, also, in order. The car at the scene was found with the third

gear on. On the 16.6.82 the witness saw the accused who alleged that whilst driving his car the third gear was disengaged. He thereupon tested this

allegation on various roads and ascertained that the third gear was disengaged on anomalous roads but not on r ds with plain surface. On roads like the one

at the scene the third gear would be indispensably (aparetitos) disengaged. The witness prepared a sketch of the scene which he did show to the accused on 16.6.82 - three days after the accident - but the accused did not say anything. [*253]

In cross-examination the witness said: The car had been registered about a month prior to the accident. He did not know whether it had originally been constructed as lefthand drive but if it had certain systems thereof such as the brake-system were different. Brakes do hot lock ("den mangonoun"), without being applied, when there is no defect, and when nothing breaks. He, also, stated that just before the brake-marks the state of the road was very bad and the gear could be disengaged. After putting to the witness that the state of the road prior to the brake-marks was bad; that at that point the accused alleged that the third gear was disengaged; that there followed application of brakes ("trohopedisi") ; that accused alleged that during the application of brakes he attempted to engage the third gear; that he alleged, further, that his brakes remained locked ("eminan mango mena") and that he pulled the hand-brake, he was asked the following question: "Having all the above allegations in mind and the findings on the tarmac after the application of brakes ("meta tin trochopedisin") if in fact accused managed to engage the gear with the brakes locked ("mangomena" ) and with the hand-brake pulled and the gear engaged and this skidding ("playiodromisis" ) which occurred and having also in mind the inclination of the road and the curves would you have expected what you have found namely these skiddings ("ihni playias olisthiseos")? and the witness replied "Yes they are fully consistent", "Malista epexigounde [*254] pliros"). He did not check thoroughly ("leptomeros" ) the braking-system. He went to the scene one hour after the accident and he checked the brakes half an hour thereafter; and that this time was enough for the brakes to start functioning normally if they had become ineffective because of overheating. In cars like that of accused where the steering system controls the front wheels if brakes get locked ("mangosoun") the car follows the course ("porian") of the front wheels and the driver cannot divert its course.

In re-examination he said that when brakes are heated this does not occur abruptly but a warning is given to the driver.

P.W.3 P.S. 2631 Michalakis Charalombides testified that on 16.6. 1982 - three days after the accident - he took a statement from accused after caution. Before taking the statement he consulted his doctors who advised that accused was in a position to give a statement.

In cross-examination he said that he did not know about the injuries of accused but he knew that accused had come to know of the death of his child as a result of t he accident.

P.W.4 Chief Inspector Zavros, a police expert qualified to examine mechanically motor vehicles involved in traffic accidents and the officer in charge of the main machineshop ("Michanourgion") of the police and an expert regarding vehicles involved in fatal or serious traffic accidents, testified that on 1. 7. 1982 he examined the car of the [*255] accused from the mechanical point of view and he found out that the breaking-system was hydraulic in all

wheels, it wag dual and effective. He drove the car at various speeds 20, 30, 40 m.p.h, - and ascertained that the brakes were effective. He did not

ascertain locking of the brakes ("mangoma") though he used them extensively. Examination of the brake-light system revealed that the brakeadjustment belt was normal and the clearance ("lasko") of the pedal was normal, it had ½" play. The car had covered 1590 miles. The hand-brake was tested at a speed of 20 m.p.h. and found to be effective. The steering system was also effective. Regarding the allegation t hat the third gear was disengaged it was ascertained that it was disengaged when the car was driven on anomalous roads at a, speed of 20 - 30 miles. When the hand-brake was tested it left marks on the road but not so strongly ("dinata") as the brakes, and the car was going on a straight line.

In cross-examination he said: He has not checked whether the car had originally been constructed as left-hand drive or right-hand drive and he could not tell where the master cylinder of the braking-system was. There is a probability, when the fluid of the brake-system is over-heated, for the wheels to lock and there occurs what is called brake-fade but this does not happen instantly, without a warning to the driver, but gradually and what happens is for the pedal to become more hard and the effectiveness of the brakes to be [*256] diminished. Ho has not checked the master cylinder because in his opinion this was not necessary since he has carried out a practical test of the brakes and has ascertained that they had no defects and also there was no locking· ("mangoma"). The witness, further, said that when the wheels are locked the driver cannot steer, the car.

P.W.5 Christodoulos Avraam a mechanic in charge of the' garage of the importers of the car of the accused, testified that he came to know accused when the latter went to his house with his car and its brakes were locked ("mangomena" ). This happened on the day the accused took delivery of his car, about 40 days prior to the accident. When accused met the witness at the latter's house he told him that he telephoned to the office and was instructed to see the witness because his brakes were locked. Thereupon the witness checked the brakes, they were not locked, and in order to avoid the recurrence of the locking of brakes, if they locked, he raised a little the brake pedal. The make of the car of accused have a stop light switch which regulates the rear lights when the driver steps on the brakes and the witness raised a little this switch because it was in a very low position ("iton poly chamilo" ) so as when the brakes get heated the play ("lasko") will not be reduced because such play should always exist. The witness checked the brakepedal, he did not drive the car, and ascertained that the pedal had the normal ploy ("lasko") and that when it has a normal play the brakes are not locked, adding however that [*257] accused drove the car to his (the witnesses) house. Accused then left and has not bothered the witness again. Some time later the accused drove the car to the garage of the importers for service, and when the witness took delivery of it the accused told him that the third gear was disengaged on one or two occasions. Accused, also, made two more complaints but the witness could not recollect them. He did not, however, make any complaint concerning the brakes. The complaint concerning the gear was examined, the gear was not disengaged whilst the car was tested at the garage and the accused Was asked to check when actually the gear gets disengaged and inform the garage. In cross-examination the witness said:

The car of the accused had originally been a lefthand drive and was converted into a right-hand drive in Cyprus. He did not know whether accused was informed of the conversion by his employer and he himself did not inform accused. The alterations which are made during the conversion are carried out in accordance with the instructions of the manufacturers and not in accordance with the manual ("katalogos"). When accused went to his house the play was normal but he increased a little the play so that when there is prolonged use and the system gets heated the brakes will not lock. At the garage there is a card wherein there are recorded all works carried put on the car but he did not ; bring the pard with him. The brakes were not locked when [*258] accused went to his house but as he accepted the allegation of the accused he did some action ("ekame mian energia") so as the brakes will not lock again ("yia na min xanamangosoun").

In re-examination the witness said that after the . - conversion into, left-hand drive the cars are inspected by the appropriate Government vehicle inspectors and this is what happened with the car of the accused which was found in order in all respects ("kathola en taxi"). He does not measure, the play of the brakes when he tests cars, he tests them by stepping on the pedal, it is about ½ - 1 cm. and the play of this car when tested after the service was within these limits.

The case for the accused

In a statement which the accused gave on the 16.6.82 three days after the accident - he stated that he had bought the car in question 40 days prior to the accident. On the day following the purchase and whilst driving it home its brakes locked ("emangosan"), the brake-pedal was hard and after applying them for some time they became slightly softer and allowed him to drive it, with some difficulty though, to his house. He was advised by the garage of the importers to see their mechanic who was his neighbour. He visited him on the same day and he repaired the car and told accused that this incident occurred to other cars of the same make as well and assured him (the accused) that it will not recur because he was aware

of its cause and he repaired it. Two - three days [*259] later whilst driving it with the third gear on the Nicosia Anthoupolis road the third gear was

abruptly disengaged. He thereupon informed the importers about this defect, he visited them, they serviced the car and delivered it to him. The fourth and third gear continued to get disengaged and the use of the rear gear was difficult. He informed the importers again and was asked to wait until the 5000 miles service. He comes from Kapedes village, and he did visit it with this car on two occasions, and the car has not. presented any problem. On 13.6.82 he went to his village and on the way the car did not present any problem. He stayed at his father’s house for about 1½ hour. On his return to Nicosia and at a distance of about one mile from the village at a point where the road is difficult and whilst driving with the third gear and at a speed of about 30 m.p.h. the gear was disengaged and the car gained speed abruptly. He managed to engage the third gear without, making use of the foot-brakes. Soon after the engaging of the geap he realised the car pulling ("na traviete") and going zig-zag. He immediately thought that the brakes had locked again ("exanamangosan") and without making use of the foot-brakes he made use of the hand-brake. The car then received an inclination to the right ("epiren klisin dexia") it went out of the road and was overturned.

When called upon to make his defence

the accused in his sworn testimony testified that whilst driving towards Nicosia at a speed of 20 - 25 m.p.h. on Macheras - Nicosia road, a [*260] dowhhill and anomalous road the third gear was disengaged. He applied

brakes and re-engaged it at once and immediately thereafter he noticed that the car was pulling to the right. He remembered that the brakes had locked again ("exanamangosan" ), there was nothing else to do and he pulled the hand-brake - because the car was driven towards the precipice. When the gear was disengaged he did not consider it a Serious problem and when he realized that the car was turning to the right he attempted to turn the steering wheel to the left but it would not obey and it was then that his mind went to the locking of the brakes. The gear had got disengaged on one or two occasions before. This incident was mentioned to the mechanic at the garage. The first time he mentioned it was when he took the car for service

and he thought that the car was repaired. He also informed the importer Mr. Savvider - about it who told him that it was nothing serious and would look

after it at the 5,000 miles service. On the said other two occasions when the gear got disengaged he faced no problem because it is a question of seconds for a gear to get disengaged and be re-engaged. After the fall of the car in the precipice he was injured and conveyed to the hospital. He came to know of the death of his child as a result

of the accident, 2-3 days thereafter. When on the l6.6.82. the accident occurred on 13.3.82 - he gave a statement to the

police he was in the most worse of conditions and he was aware of the death of his child whilst giving the statement. He could not remember whether in his statement he said that [*261] he has not applied brakes. He was not frightened when the gear was disengaged. When the brakes locked for the first time and were repaired by his neighbour he was told by him that this occurs to many cars, they drive them to the garage and they cut something from the pedal in order to go lower and they do not lock again. The mechanic, who was P.W.5, also told him that with what he did to the car he hopes that the locking incident will not recur. The car was bought on 2.5.82, its brakes locked on 3.5.82 and was taken for service on 24.5.82. When taking it for service he mentioned the problems of the car, namely the noise of the engine, the disengaging of the gear and the locking of the brakes. It was serviced, he took delivery of it and he has faced no problem again with the brakes until the accident.

According to a medical certificate - exh. 4 - the accused sustained the following injuries as a result of the accident.

1. "Εγκεφαλικήν διάσεισιv.

2. Θλαστικόν τραύμα της αριστεράς μετωπιαίας χώρας.

3. Θλάσιν και εκχυμώσεις του αριστερού ημιθωρακίου.

4. Θλαστικόν τραύμα της οπισθίας επιφανείας της δεξιάς κνήμης και του έξ σφυρού αριστερά.

[*262] Έγινε συρραφή των τραυμάτων και ακτινολογικός έλεγχος ο οποίος

έδειξε κατάγματα των κατωτέρω πλευρων του αριστερού ημιθωρακίου. Ακολούθως ο ασθενής εκρατήθη

κλινήρης υπό την δέουσαν ιατρικήν παρακολούθησιν και θεραπείαν. Τας

πρώτας τρεις ημέρας η σίτισις του εγένετο δια χορηγήσεως ορών ενδοφλεβίως, ακολούθως δε ήρχισε

να λαμβάνη υγρά από του στόματος. Την 16.6.82 ήρχισε να εγείρεται επ' ολίγον της κλίνης του και την

19.6.82 εξήλθε του Νοσοκομείου παραπονούμενος ακόμη δι' άλγη του θώρακος και

κεφαλαλγίαν".

In cross-examination on the accused said: The police officer who took the statement sought to read it to him but accused, refused because, as he said, he did not wish to live again the moments of the accident. The truth about the application of brakes after the disengaging of the gear was his testimony in court namely that he did apply brakes because he knew that he did so. Before the disengaging of the gear the car had not presented any problems, the brake-pedal was not hard and the brakes were effective. The gear was disengaged for the first time whilst driving on an uphill road and for the second time whilst driving on an anomalous road. Before the car started going towards the precipice he must have made use of the brakes because he had nothing else to do and since the car. was heading towards the precipice he pulled the hand brake. After taking delivery of the car, following its service, and until the accident, it presented no problem though it was put to the same use. He did not panic when the gear was disengaged, but when he realized that the car was heading towards the precipice and when he thought of the first instance of the locking of the brakes he got frightened and [*263] pulled the hand-brake.

D.W.l Georghios Tzirkallis, a road transport and automobile engineer and a motor vehicle assessor, a graduate of the Eastham College of Technology under North East London Polytechnic, now working with the firm Pavlides and Araouzos Ltd. as an Assistant Service Manager, testified that at the beginning of September, 1983 he examined the ear of the accused and particularly the gears and brakesystem and, also, whether it had originally been manufactured as left-hand drive or right-hand drive. He ascertained that in faet it had originally been manufactured as left-hand drive and was subsequently converted into a right-hand drive. For such conversion the steering wheel and the clutch, petrol and brake-pedals have to be moved to the right. The brakes system of this car, which consisted of the pedal, the master cylinder, the front brake-calibre and the drum brakes at the rear was dual. The brake system had no servo-assisted system and in spite of the above conversion the master-cylinder remained at its original position. When the brake-system is servo assisted the system is as follows: brake pedal - push redservo — master cylinder. The brake light switch was in its very top position ("entelos xevidoto") and by having it at this position the pedal is raised and thus there is more clearance ("anigma") between the master cylinder and the push rod. There should have been a clearance of 1/16" and there was no

such clearance. The brake-system had the following three [*264] defects : (a) there was no clearance between the push rod and the

master cylinder; (b) The brake-pedal at its upper positi was resting ("akoumpouse" ) on the brake-light switch; (c) the holes by means of which the system was fixed on the panel were roughly made and elongated and thus they system was not secured properly with the result that at any time and after a jerk or push on the pedals the system could move and as the clearance was so small the slightest movement could activate the brakes.

In the absence of the normal clearance - defect (a) above and when the brakes are heated this defect makes them lock ("ta kanmi na mangosoun") and this is the reason for the existence of the clearance which assists the brakes not to lock. Regarding defect (b) above when the pedal was resting on the stop light switch the pedal could not go higher up and thus the clearance of l/l6" between the push rod and the master cylinder did not exist with the consequence that when the system gets heated the brakes are locked. When a car like that of accused is driven downhill and with the condition of its brake-system and in the absenc of servo system the brakes could lock after a prolonged use even by a mere touch on the pedal. As the clutch system was on the same rod by stepping on the clutch the brake-system could move, because it was not secured properly and bring about a locking of the brakes. If we have the normal clearance of 1/16" between the push rod and the master [*265] cylinder brakes would not lock. When the brakes lock the driver cannot steer the car and the car follows its course ("akolouthi tin poriapou ehi"). The brakes could, also, be locked by being used until heated and not by prolonged use.

In cross-examination he said: He examined the car in September, 1983 and he was unaware of its whereabouts before the examination. The brake system was not placed properly and was pushed in order to be fixed and as soon as he unscrewed a bolt it kicked back. He could not tell whether the brake-system was in the condition it was at the time of the accident. The stop-light switch was at its upper position, had it been at a lower position the brakes would have locked more easily. During the trip from Nicosia to Kapedes if there is no downhill he would not expect brakes to lock but at the return trip which is downhill and provided that there was a litle use of the brakes, in order to reduce the speed, he would expect that the brakes might have locked. They could lock instantly orgradually. He would not expect brake-fade because with brake-fade the wheels do not lock. Nor would he expect a hint that brakes were not £ functioning properly because on downhill the car gains speed and it is somewhat difficult for a driver to get such a hint. There is a tendency for gears to get disengaged when the engine tilts and on anomalous roads. When the brakes are in use and the hand-brake is pulled the car may turn.[*266]

Before commenting on the evidence I will attempt to state the law relating to the function of expert witnesses. In Davis

V. Edinburgh Magistrates, (1953) S.C. 34 Lord President Cooper said the following:

"Their duty is to furnish the Judge or jury with the necessary scientific criteria for deciding the accuracy of their

conclusion so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence."

According to

Phipson on evidence, 11th ed. p.510 "the testimony of exports is often considered to be of slight value, since they are proverbially,

though perhaps unwittingly, biased in favour of the side which calls them, as well as overready to regard

harmless facts as confirmation of preconceived theories; moreover, support or opposition to given hypotheses can generally be multiplied at

will". See also Halsbury’s "Laws of England, 3rd edn. p.278, para.507, where it is stated that the evidence of expert witnesses may be of a partisan character and, therefore, to be regarded with caution.

Having considered the evidence with great care and having had the occasion to see and observe the witnesses whilst testifying before me, I proceed to make my findings on the credibility and weight of the evidence. The evidence of P.W.1 - Poniros - is accepted subject to what will be said herein- [*267] below regarding his testimony concerning the brake-system. The evidence of P.W.5 - Avraam cannot be safely relied upon because cf his demeanour which clearly gave the impression that he was trying to conceal the truth from the court, a fact manifested also by his failure to consult or produce the service card of the car. ' Also I am unable to conceive why he did interfere with the brakes since they had not locked. Regarding the testimony of P.W.4 - Zavros - and that of P.W.1 - Poniros - in so far as it relates to the brakesystem, having approached it in the light of the above legal position and together with that of P.W.l - Djirkallis I have arrived at the conclusion that it is not the sort of evidence that can be relied upon in a criminal case and it will, therefore, be rejected in so far as it relates to the brake-system. The reasons for adopting such a course are Contrary to the thorough examination of the brake-system which was carried out by D.W.l, P.W.l clearly admitted that he did not check thoroughly the brake-system, something which is, also, manifested by his statement that he did not know whether the car had originally been constructed as left-hand drive. Also P.W.4 - Zavros - though not admitting expressly that he did not check thoroughly the brake-system he stated that he has not checked whether originally the car had been constructed as left-hand drive and he' did not know where the master cylinder was; and both these facts are indicative of the· absence of a thorough check. On the other hand, it is clear from the testimony of D.W.l that he [*268] did carry out a thorough examination of the car, and was thus in a much better position than P.W.l and 4 to furnish the court with all the necessary scientific criteria for deciding the accuracy of his conclusion.

Now regarding the evidence of D.W.l - Djirkallis - it is true that he did check the brake-system some 14 months after the accident and one might raise a question of interference with the system in the meantime. In the absence, however, of any evidence of interference and in the light of the contents of such evidence, when viewed together with the other expert evidence which I have accepted, particularly the unanimous opinion of all experts to the effect that when the brakes lock the driver cannot steer the car, I am not prepared to reject it because at least it leaves a real doubt in my mind regarding the question whether the brake-system was effective and did not lock.

Coming now to the evidence of the accused, having closely followed him whilst testifying before me and bearing in mind his mental and psychological state whilst giving his statement, which arose out of the death of his child and his. health condition I will accept, as

I am entitled to do, (and see in this connection Ioannides v. Republic (1968) 2 C.L.R. 169 at p.185) his sworn testimony in Court instead

of his statement to the. police; and would like to add. that a statement taken under such conditions tends to complicate rather than facilitate the course of justice. It should, also, not be [*269] forgotten that his hotly contested by the prosecution statement that he did apply brakes when the gear was disengaged is corroborated by the real evidence, namely the 52’ brake-marks which were described by P.W.1 as "stopper". Also his narration of the events is further corroborated by P.W.1 who said that the skiddings are consistent with such events. Another matter indicative of the condition of the accused was the absence of any interest on his behalf to comment on the plan.

Findings:

In the light of my findings as to credibility, I find that soon after its purchase as brand new the car of the accused presented a problem, with its third gear, which used to disengage, and its brakes which locked. Following its service at the garage of the importers the car presented no problem either with its brakes or gear and that regarding the brakes he was assured by the mechanic of the importers that they Will not lock again; and that regarding the gear he was assured by the importer that it was nothing serious. Whilst driving the car - on the 13.6.82 - on Macheras - Nicosia road, a downhill and anomalous road the third gear was disengaged. He applied brakes and re-engaged it at once. Immediately thereafter he noticed that the car was pulling to the right and was heading towards a precipice to the right of the road. He attempted to turn the car to the left, the steering wheel did not obey and his mind went to the [*270] previous locking of the brakes. When he realized that the car was heading towards the precipice he got frightened and pulled forcibly the hand-brake but the car fell in the precipice.

In view of the evidence emanating from all the experts to the effect that when the wheels get locked the driver cannot steer the car and my above finding that the steering was not obeying coupled with my finding on the evidence of the defence witness there is raised a real doubt in my mind about the effectiveness of the brake-system which is resolved in favour of the inference that the cause of the fall of the car in the precipice - and therefore of the accident - was a mechanical defect namely defective brake-system.

The Law:

Before dealing with the legal position I will deal shortly with a submission of learned counsel for the accused who, by submitting that the charge was brought under s.8 of Law 86/72 which provides that ”if any person drives a motor "vehicle on a road without due care and attention... " , urged that these words should be related to the driving and not to anything else and that the mere fact that.: an accident happened does not amount to negligence. With all due respect to learned counsel the section proceeds to provide "or without reasonable consideration for other persons using the road",· and in the case of Pawley v. Wharldall. [*271] (1965) 2 All E.R. 757 the Queen’s Bench Division in interpreting the words "other persons using the road" in section 3 of the Road Traffic Act, 1960 held that they included passengers in the vehicle being driven and were not confined to persons outside the vehicle. Therefore the second leg of the relevant section is applicable, in this, case because there was a passenger in the vehicle of accused.

The essence of the defence of the accused being that the accident was caused due to the defective braking system, I will proceed to state the law on this subject.

In the case of R.V. Spunge,

(1961) 45 Cr. App.R. 191, the following were stated at p. 197:

"This Court desires to emphasize that cases in which a mechanical defect can successfully be relied upon as a defence to a charge of dangerous driving must be rare indeed. This defence has no application where the defect is known to the driver or should have been discovered by him had he exercised reasonable prudence. To drive a motor car in such circumstances is manifestly dangerous. The essence of the defence is that the danger has been created by a sudden total loss of control in no way due to any fault on the part of the driver. "

Regarding the burden of establishing such defence it was stated that where mechanical defect can operate as a defence, the burden of establishing that defence does not lie on the [*272] prisoner. A Court should not consider any such special defence unless and until it is put forward by the prisoner, but once it has been put forward, it must be considered with the rest of the evidence and if the defence then leaves a real doubt in the mind of the jury, the prisoner is entitled to be acquitted, and the jury should be so directed.

In the Spunge case the accused was aware of the tendency of his car to pull to the right when the brakes were applied; and the Court found that "it was or should have been obvious to him that the more vigorously the brakes were applied the stronger this tendency would be".

In the case of Haynes v. Swain. (1975) R.T.R. 40, "the defendant, who owned a car which was regularly maintained and serviced, drove it for 20,000 miles and said that he had never experienced difficulty when using the brakes. Two other persons, who had driven the car early in 1973, noticed a tendency for it to pull to the right when the brakes were applied at high speeds and each informed the defendant of the defect. On each occasion he took the car to the supplier’s garage for brake testing, which was carried out and he was advised that no defect could be found in the braking system, In May 1973 the defendant drove the car on a motorway at 70mph and braked suddenly; the car swerved to the right and an accident resulted. He was charged with driving without due care and attention, contrary to section 3 of the Road Traffic Act 1972. He contended that the accident was caused by his [*273] losing control and that he had no reason to suppose the braking defect to have persisted because the car had been regularly maintained and serviced and tests

for the express purpose of checking the braking system and revealed no defect. Thé justices were of opinion that the braking system

defect was of long standing, that the defendant must have known or ought to have known of i t during the 20,000 miles that he had driven the car if he had exercised due prudence and that, although he must have known or ought to have known of the defect, he continued to drive the car, with the result that the accident occurred. They convicted the defendant.

On appeal against conviction on the ground that the , defendant was entitled to rely on the regular, servicing as showing the car to be in good mechanical order at all times after servicing: Held, dismissing the appeal, that after a car has been serviced, all that a car driver could assume was that the service had been carried out and that, since the justices' finding of the defendant's knowledge of the defect while he was driving at a speed on the date of the accident could not be upset, he was guilty of the offence charged."

In the Haynes case the Justices found that the defendant "must have known, or at least ought to have known, of the defect if he had exercised reasonable prudence. In other words the justices found that as a prudent driver he knew or ought to have known very well indeed that that car had that particular defect." [*274]

This case is distinguishable from the above two cases because in the Spunge case the accused "was aware of the tendency of his car to pull to the right when the brakes were applied and in the Haynes case the defendant must have known cr at least ought to have known of the defect" whereas in the present case the car presented no problem after the service and we have also the already referred to assurances of the mechanic of the garage and the importer. It should not, also, be forgotten that accused is an ordinary layman and not an expert.

In this case the duty of the accused,

to use the words of Viscount Dilhorne in Henderson v. Jenkins, (1969) 3 All E.R. 756 at p. 761 "was to take all reasonable steps

to ensure that his car was safe for use on the roads", something which he has not failed to do.

Reverting to this case and considering the defence of the accused, which was mainly based on his own evidence and that of D.W.l, together with the rest of the evidence and along with my above findings and inferences I havearrived at the conclusion that the defence leaves a real doubt in my mind and the accused is, therefore, entitled to be acquitted in the absence of any other evidence establishing negligence by him. It should, also, be added that even if one could argue that following the disengagement of the gear accused did not act as a reasonable and prudent driver and took the wrong steps again he is not guilty of negligence because he was [*275] confronted with an imminent fall in the precipice and a wrong step taken In the agony of a collision is not necessarily a negligent step (see Ioannou v. Michaelides. (1966),1 C.L.R. 235).

Accused acquitted.