Marchant & Anor, R v

For section 2A(2) of the Road Traffic Act 1988, a vehicle’s current state denotes a state other than its original or manufactured design. A dangerous-condition prosecution cannot therefore rest solely on the inherent design of an authorised vehicle when neither user is responsible for that design. Authorisation for road use does not, however, disapply offences of dangerous driving under sections 1 and 2. A driver may still be prosecuted for dangerous manoeuvring or for a dangerous state arising otherwise than from the vehicle’s original design. In the exceptional circumstances of an authorised agricultural vehicle, its authorisation and normal use may be relevant to whether danger would be obvious to a competent and careful driver.

Marchant, an experienced tractor driver employed by Muntz, drove a loading machine with a boom and bale grab on a rural public road. While the vehicle was stationary on its correct side of the road, a motorcyclist collided with one of the grab’s tynes and died.

The machine had been bought from a reputable dealer, was authorised for road use, and was being driven with the boom and grab in the manufacturer’s recommended travelling position. Marchant was convicted at Birmingham Crown Court of causing death by dangerous driving. Muntz was convicted of procuring that offence. The jury’s verdict against Muntz necessarily showed that it had accepted the Crown’s case that the vehicle was dangerous because of its condition, rather than merely because of its position on the road.

On appeal, the central issue was whether section 2A(2) of the Road Traffic Act 1988 permitted a dangerous-condition case founded solely on the vehicle’s inherent, manufactured design.

1. The appeals were allowed and both convictions were quashed. The dangerous-condition basis of the prosecution should neither have been pursued nor left to the jury.

2. The court held that the exemption produced by section 44 of the Road Traffic Act 1988 applies only to sections 40A to 42. It does not provide a general defence to causing death by dangerous driving under section 1, or to dangerous driving under section 2. An authorised agricultural vehicle may therefore still found liability where, for example, its driver has manoeuvred it dangerously.

3. Section 2A(2), however, uses the distinct expression current state, whereas section 40A refers to the vehicle’s condition. The former implies a state different from the original or manufactured state. The court therefore declined to extend the construction of Wood v Milne [1987] The Times 27th March, concerning different statutory language, to section 2A(2). The inherent design of this machine could not by itself constitute its current state for that provision.

4. The result did not create a blanket exemption for authorised vehicles. Liability remained possible for ordinary dangerous driving and for a dangerous state caused by inadequate maintenance or alteration. On the assumed facts, however, the machine’s condition was unchanged from new, it was authorised for road use, and the appellants were not responsible for its design.

5. The court also held that, in those exceptional circumstances, it was unfair to try the appellants on the dangerous-condition case. If that case had been left to a jury, it should have been directed that the vehicle’s authorisation, inherent condition and ordinary rural use were relevant to whether its state would have been obviously dangerous to a competent and careful driver. Saying only that the authorisation supplied no defence risked suggesting that it had no relevance.

• Court of Appeal (Criminal Division): Allowed the appeals against conviction and quashed both convictions.
• Crown Court at Birmingham: On 23 November 2001, convicted Marchant of causing death by dangerous driving and Muntz of procuring that offence.