Important Information about: appeals relating to driving tests. RSA Press Release.

ADIDriving

This is for your information as it is a High Court Judgement that relates to driving test appeals to the District Courts and will be of interest to ADIs and their students. We welcome the Judgement and the clarification that it provides about the role and standing of the RSA but more particularly the manner in which it clarifies the professional standing of driver testers. In January, we undertook to take a “consultative case stated” to the High Court to clarify the provisions of the legislation surrounding driving test appeals. Different courts were taking diverse interpretations of the existing legislative provisions. A consultative case stated means that we could pose legal questions to a High Court Judge, and ask for clarification surrounding that piece of the legislation. Eight questions were posed to the High Court. The judgement by the High Court Judge was made yesterday, and each of the 8 legal questions posed were found in the RSA’s favour.

The significance of this is that we will now be able to present this judgement at each District Court appeal which we attend in future, which that judge will no doubt abide by seeing as it was a clarification on legislation made at a higher judicial level. It will also hopefully mean that our appeal hearings will be shorter in duration, as this document clarifies a lot of issues which the District Court judge may spend time questioning in court. The judgement goes through each of 8 questions in a clear manner and the judge has also written about the significance of the role of the Driver Tester in road safety.

The questions posed to the Judge and his answers are set out below:

Question 1: In the appeal pursuant to section 33(6)(a) of the Road Traffic Act 1961, is it an excess of jurisdiction on the part of the District Court to consider “not properly conducted” to include findings of fact on the part of the Road Safety Authority”?
Judges Response: Yes, it is in excess of its jurisdiction for the District Court to review findings of fact made by the RSA. The Courts only role is to investigate whether there was any way in which, taking the test as whole, it was not properly conducted.

Question 2: Is the meaning of the words “not properly conducted“ in section 33(6) (a) of the 1961 Act limited to manifestly illegal and /or improper acts on the part of the Road Safety Authority.
Judges Response: Yes, the words “not properly conducted” should not be interpreted so to allow an appeal to those who are merely dissatisfied with the result of their test. The right of appeal under s.33(6)(a) is limited to where there was improper conduct on the part of the tester in his conduct of the test. It is not sufficient that the District Court would have come to a different decision to that of the tester. The circumstances in which the District Court should intervene are only where a tester has conducted the test in a way that is improper.

Question 3: Do the words “not properly conducted” as set out in section 33(6)(a) of the 1961 Act permit the District Court to review the test based on the testimony of the appellant that the Road Safety Authority failed to adhere to the rules of the road?
Judges Response: The respondent complains that during the District Court proceedings Judge Collins requested sight of the test report sheet which details the decisions made by the tester. Judge Collins then heard testimony from both the applicant and the RSA on “how did you determine that blue tick”or “why did the candidate get that red mark”. This involves the District Judge possibly interposing her judgement of the appellant’s driving ability for that of the tester. The role of the Court is limited to determining, not whether the tester was right in his assessment, but whether he conducted the test properly. Even if the judge on such enquiry disagreed with the assessment of the tester, the judge has no jurisdiction to interpose her judgement for his. The answer to the third question is no.

Question 4: Does the ambit of section 33(6)(a) afford an appellant the right of appeal if merely aggrieved with the result of the test?”
Judges Response: As noted above, the wording of s.33(6)(a) of the Act clearly limits appeals to circumstances where the test was not properly conducted. The answer is no.

Question 5: Is it an excess of jurisdiction for the District Court to review the findings of fact by the Road Safety Authority documented on the test report sheet?
Judges Response: The purpose of each test sheet is to document the findings of fact by the tester. The report sheet is carried by the tester and completed during the test. The test report sheet may be viewed by the District Court to ensure the reasons explaining the decision to fail were given to the applicant. The Court may check for any clear error on its face which may have misled the applicant. It should not however attempt to interpose its view for that of the tester. The Court must not substitute its view for that of the RSA but must ensure that the test was not improperly conducted. The answer to the fifth question therefore is no.

Question 6: Is it within the jurisdiction of the District Court to review the test report sheet?
Judges Response: No, save as provided in answer five.

Question 7: Is the testimony of the appellant which merely contradicts the findings of fact by the Road Safety Authority sufficient to vitiate the determination by the Road Safety Authority that the applicant was not competent to drive?
Judges Response: No, as set out above findings as to competence to drive are matters exclusively for the RSA. Testers alone determine competence to drive.

Question 8: If the District Court determines that the test was not properly conducted and orders that a further test be conducted in accordance with Section 33(6)(a) of the 1961 Act :
(a) Does this abrogate the original test?
(b) Does this vitiate the finding that the appellant was not entitled to a certificate of competency or merely that he is entitled to a second test?
(c) If the District Court Orders a further test should the original test result remain on the record of the appellant?
Judges Response:
(a) The answer is no as the word “further” in s.33(6) suggests that the original finding is not overturned.
(b) No, it merely entitles him to a retest.
(c) Yes, as the use of the word “further” indicates that there should be a subsequent test. The earlier one should be recorded by the Authority because it took place.
This information is provided to enable you to answer queries in relation to the possibility of an appeal following a practical driving test, we trust that you find it useful in that regard.

Faith+1

Good post OP but can you paragraph it? It makes it much easier to read.

Rothmans

What a load of bollocks.

TL;DR. In a nutshell, the word of a tester ( whether corrupt, unfair, vindictive etc) is taken as gospel, and his opinion is to be taken as fact, and the aggrieved appellant is prevented from proving otherwise. The courts have no power to dispute the findings of a tester even in cases where the District Court recocognises that it is blatantly obvious that the tester was completely unfair, incorrect or incompetent.

What a load of bollocks. This could easily result in a situation where there is completely indisputable evidence that testers are unfairly failing people and the DC will have to find against the wronged appellant!!!!
What complete bollocks! What is the point of the appeals process if the District court cannot make a decision contrary to the RSA!!!

Essentially, testers are legally untouchable now :mad::mad::mad::mad::mad::mad:

who_me

Seems odd. So even if the tester's acts were "improper" and "manifestly illegal", it still doesn't void the test? Nice to have zero accountability.

ITS_A_BADGER

you can see tho that if it comes down to you and a professional, they are gonna take the professionals opinion over someone who is learning, makes sense i guess, but what if you come up againsted someone who is crooked/has a grudge/terrible tester etc. learner drivers will have no proof of any of that therefore they gonna take the the testers word as gospel. that kinda sucks!!

Mister Jingles

Still wonder why the forbid video recording of driving tests.

J_R

Mister Jingles wrote: »

Still wonder why the forbid video recording of driving tests.

Hi,

Shortly after I started as a driving instructor I had a meeting with a chap from Ballina. (He was quite high up on the feeding chain). The driving test dept. arranged the meeting because of the letters of complaint had sent in regarding some driving tests.

My main issue really was the total lack of transparency and accountability of the Irish test as compared to the UK. (There for example the driving instructor can accompany their pupil on test and pass or fail the test applicant can request a full de-brief of their test).

At one stage in our discussion, told him I would install a video camera in the car. His reply was "It is illegal to deliberately set out to entrap a civil servant". True ! :eek:

Next, told him that if a pupil of mine was failed unfairly, I would take them to court, insist that the examiner be put on the stand where I could cross-examine him and where under oath he would have to explain his reasons for failing my pupil.

His reply to that was "never happen, we would settle on the courtroom steps ".

Gave up after that, just concentrated on teaching my pupils to drive and learn the system.

ADIDriving

J_R wrote: »

"It is illegal to deliberately set out to entrap a civil servant".

I wonder if a written statement like, "All driving in this car is recorded, for the purpose of training." (Like you get when phoning most big companies and some state bodies) might be a loophole?

J_R

ADIDriving wrote: »

I wonder if a written statement like, "All driving in this car is recorded, for the purpose of training." (Like you get when phoning most big companies and some state bodies) might be a loophole?

Hi,

what he actually said, best as I can remember was "It is illegal to deliberately attempt to entrap a civil servant whilst in the performance of their duties"

But I think the excuse was rubbish. It would mean that a civil servant could never be monitored whilst at work. But then they do rule the country so would not be that surprised if it was actually true.

johnmcdnl

So am I right in reading that and saying that a tester cannot be brought to court to appeal a decision he made on someone's driving - so if he decided to give me a Grade 3 for random things for the laugh basically I couldn't appeal it.

I could only go to court to appeal if the tester didn't conduct the tester properlu ie - didn't follow standard procedure. So if he came out with a refill pad instead of the offical marking sheet I might have a case or if he didn't give me the marking sheet after the test I might have a case but other than situations like this the tester cannot be brought up on any decisions he makes during the test.

The role of the Court is limited to determining, not whether the tester was right in his assessment, but whether he conducted the test properly.

I wonder how many times it will have to be brought up before testers are finally made tell people what they did to fail a test. It's an absolute disgrace that they don't. For all I know I'm doing something that could potentially cause a fatal accident and they still refuse to tell you what you've done wrong. The complete lack of transparency of the test is a disgrace and I can't imagine it happens in many other places in the world or in too many other sectors. When a company fails a health and safety inspection they get a detailed report on why - surely this should be no different to the driving test where the candidate should be made aware of the mistakes they are making as they are potentially dangerous very similar to how not having the correct health and safety measures in place in a company is dangerous too.

I have no problem with the test being strict (common sense needs to be used as well though in certain situations) but there really needs to be a major change in the way tests are conducted to actually inform candidates what they have done wrong. Just telling candidates "yeah you made an error when you were turning left once in your test" isn't acceptable. What did I do wrong so I can fix it and potentially avoid an accident. I know testers may not want to tell in person as there may end up being a confrontation about a mark that a candidate received - I've heard that argument sprouted a few times so maybe have a system where reasons for grades are written down and posted to me a few days after the test - I learn from my mistakes and the tester is much more accountable.

It's just ridiculous the power the testers have and the authority they control is sickening due mainly to the complete lack of transparency of the driving test itself.

orke

Hi,
I had my driving test 23-05-13 and failed due to my right break light failing. Before I left I checked it and it was working fine and when I arrived in Finglas test centre it failed on me. The tester automatically failed me after he noticed the Break light wasn't working.
Is there any way I could appeal to receive my money back, or get another test for the fee that was forfeited?

Thanks in advance.

Michael D Not Higgins

orke wrote: »

Hi,
I had my driving test 23-05-13 and failed due to my right break light failing. Before I left I checked it and it was working fine and when I arrived in Finglas test centre it failed on me. The tester automatically failed me after he noticed the Break light wasn't working.
Is there any way I could appeal to receive my money back, or get another test for the fee that was forfeited?

Thanks in advance.

http://www.rsa.ie/Documents/Learner%20Drivers/finalchecks.pdf
Page 3

A high percentage of driving tests are not conducted
due to some of the following reasons:
• A fault with the vehicle presented for the test,
• Documentation not being in order,
• The candidate not turning up,
• The candidate being late,
• The candidate turns up at the wrong time or
centre,
• Or not meeting one or more of the following
requirements (below).
In such cases the person has to re-apply for the
test and pay the fee again. Don’t let this happen to
you!!! – read our checklist and ensure you comply
with all requirements!

I'd say you're just gonna have to deal with it

orke

Okay thanks for the reply.