Section 40A Road Traffic Act 1988 Using vehicle in dangerous condition:
A person is guilty of an offence if he uses, or causes or permits another to use, a motor vehicle or trailer on a road when—
(a)the condition of the motor vehicle or trailer, or of its accessories or equipment, or
(b)the purpose for which it is used, or
(c)the number of passengers carried by it, or the manner in which they are carried, or
(d)the weight, position or distribution of its load, or the manner in which it is secured,
is such that the use of the motor vehicle or trailer involves a danger of injury to any person.
This can be overloading, carrying passengers, mechanical defects, modifications, the list is endless. See the Construction and Use (link to 3e) page for specific defects and breaches. It can include anything which would involve any of the above, especially when the use of the vehicle involves a danger to any person. This is an objective test to show the potential for injury.
In Gray v DPP a boy was riding in the back of a jeep with no restraints holding onto the roll bars. The court ruled even though he had done that on numerous other occasions without injury and his father was a reasonable and competent driver the objective test was applied and they were in breach of s.40a as you have to take into consideration what could happen, for example if the father had to brake or swerve suddenly, rather than what had happened on that occasion or in the past.
The first defence would be obvious, the vehicle was not in a dangerous condition or that the condition would not risk danger of injury to any other person. Usually these defences are argued either by flatly denying the defect or suggesting that the defect itself was not dangerous.
The individual defect would be examined in it’s own facts. Always consider getting an independent expert report.
If not, another way of dealing with this would be by way of a section 48 argument to avoid points/disqualification. S.48 Road Traffic Offenders Act 1988 – the Court must not endorse points or disqualify if “he proves that he did not know, and had no reasonable cause to suspect, that the use of the vehicle involved a danger of injury to any person.”
The procedure here would be to enter a guilty plea and argue the case under section 48.
The starting point is 3 penalty points and a maximum £2,500 fine when committed in an ordinary vehicle, but an unlimited fine when committed in a goods vehicle or a vehicle adapted to carrying more than 8 passengers.
The Road Safety Act 2006 amended the law so that a second offence committed within 3 years will result in a mandatory minimum 6 month disqualification.
For more information about penalty points, disqualification and ‘totting up’ 12 or more points during a 3 year period, visit https://www.pattersonlaw.co.uk/.