Has the Law on "Smoking" Really Been Changed?
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Operators Who Maintain Their Vehicles Reasonably Have Nothing to Fear, although Latest Regulation is Far from Clear
By Our Legal Adviser
In the Motor Vehicles (Construction and Use) Amendment) Regulations, 1957, which came into force on April 1 last, the wording of the regulation • dealing with exhaust smoke has been changed. What effect will it have on conimercial-vehick operators?
ALTHOUGH technically the law on the emission of exhaust fumes has been altered there is little change in the practical effect, and operators who maintain their vehicles properly have nothing to fear. If the Government had intended to deal more strictly with the problem of excessive smoking, they have failed. This is apparent when the law as it was, and now is, is considered dispassionately.
Offences in connection with excessive smoke or other exhaust products or fumes are described in No. 79 of the Construction and Use Regulations, Part III. This part is headed: "Regulations governing the use on roads of motor vehicles and trailers." Part HI deals only with the use of vehicles, and not with their construction, which is the subject of another part of the regulations. Regulation 79 is headed: "Maintenance of vehicle so as not to emit smoke, etc."
Positive Approach
Until recently, when this regulation suffered a drastic amendment, the first requirement was positive—the maintenance of every vehicle in such a condition—coupled with its use—that no smoke, etc. (a large number of things is comprehended in the "etc.') should be emitted, "the emission of which could be prevented or avoided by the taking of any reasonable steps or the exercise of reasonable care."
As this provision was framed, it was clearly intended that an operator who saw that his vehicle was always kept in a good state of maintenance should have nothing to fear. But the regulation went on to make it a reqUirement that no smoke, etc., should be emitted "which might cause damage to other persons or property or endanger the safety of any other users of the road in consequence of any harmful content therein." This seemed an absolute prohibition to which the "good maintenance proviso did not apparently apply.
Operator Protected It might have been argued, under that regulation, that if smoke or vapour were emitted as a result, not of faulty maintenance, but of bad design or construction, the operator could' not be punished. Not only did the heading of the regulation refer expressly to " maintenance of vehicle so as not to emit smoke," but the whole of the provisions dealing with construction belong to another part of the regulations.
In addition, it has been held in another—but similar— connection that where a defective hand-brake ratchet was a fault of construction and not of maintenance, it was wrong to charge a person with the offence of "failing to maintain." In fact, so far as I am aware, there has never been any authoritative decision on excessive exhaust smoking caused by a constructional rather than a maintenance fault.
Now, by the amendment to Regulation 79, it would seem that the Minister of Transport intends a tougher policy towards this problem. The new prohibition is a negative one prohibiting the use of a vehicle on the road—rather than the former positive requirement of good maintenance —" from which any smoke, etc., is emitted if the emission thereof causes or is likely to cause damage to any property or injure any person or is likely to cause danger to any such person." There is no mention of any loophole of "could be prevented' by reasonable care" or such similar phrase, as formerly, and the prohibition seems to be intended to be absolute.
It may well be that the police are intensifying their interest in exhaust vapours—and particularly in respect of oilers—by reason of the different wording of the new Regulation 79, but although it seems that the new regulation is harsher than the old, I doubt, from a strict legal interpretation, whether that is really so.
The new regulation is still within Part HI of the regulations, which deals with the use and maintenance of vehicles. and not their construction, and the heading to Regulation 79 remains unchanged—" Maintenance of vehicle so as not to emit smoke, etc." If a constructional defect, rather than a fault of maintenance, could have enabled a successful defence to have been put forward under the old regulation —for the reasons already advanced—it is difficult to see how the new wording changes matters in that direction.
No Clearer
However, one thing is certain: the new regulation is no improvement upon the old as regards clarity of meaning or intention. It is peculiar that it should apparently seek to draw a distinction between "likely to cause damage to any property or injure any person" and "likely to cause danger to any such person." One would have thought that anything likely to injure a person would also be likely to be a danger, and vice versa.
And how is the apprehended injury or danger to be proved—always excepting those other hazards comprised in the "etc.," such as grit, sparks, ashes, cinders and oily substances, the dangers of which may be obvious. There is enough controversy about the effects of exhaust vapour among the medical authorities to make a conviction difficult if the matter is properly fought.
Although the Minister may have intended a tougher line by his new regulation—and the police may be acting in conformity with it—operators whose maintenance in this regard is at least reasonable will have nothing to fear and should refuse to be bull-dozed by the police. In any event no offence is committed unless the vehicle is on a road at the time, so that examiners or police cannot act in the matter by visiting private premises or, indeed, anywhere which is not within the definition of a road or other " public place."