Belfast Telegraph

Sunday 21 December 2014

Teen sues over driving test failure... and wins

Historic first as fee is refunded after legal action

A Northern Ireland girl has made history by taking a successful legal action against the Government after being denied a pass in her driving test.

The action — believed to be the first of its kind in the UK — came about after the Co Down teenager was deemed to have made an incorrect manoeuvre during the exam.

But she refused to accept the examiner's ruling — and her driving instructor started what were unprecedented legal proceedings on her behalf.

The matter has now been settled out of court, with the Driver and Vehicle Agency (DVA) agreeing to refund the £42 test fee to the girl — who passed her test one week after being failed.

Speaking to the Belfast Telegraph last night, the driving instructor, Jim Miskimmin, who paid hundreds of pounds in legal fees, said he was pleased with the outcome.

“They would have to change the Highway Code for me to fail on this, so I was pretty confident that I would be successful,” he said.

“I went through all the channels before finally getting the matter to court. It was settled this week and I’m extremely happy with the result.”

The girl, who wishes to remain anonymous, first took the exam in Downpatrick on May 18, 2008.

According to Mr Miskimmin, who runs the J Miskimmin School of Motoring in Ballynahinch, she failed after notching up three minor faults and one “incorrect” major fault.

“She was coming along the Ballydugan Road, which is a single lane going into two lanes,” he said.

“My pupil thought she was going back to the test centre, so she stayed in the right hand lane.”

“Just as she entered the lane the examiner said he wanted her to follow the road for Belfast and the town centre, so she proceeded to move safely into the left hand lane. But she was failed because the examiner said she should have been in the left hand lane from the beginning.”

Mr Miskimmin, however, maintained that his pupil was not in breach of the rules of the road and instigated legal proceedings.

“The Highway Code concludes that in a two-lane situation you stay in the left hand lane unless the road signs or markings indicate otherwise,” he said.

“In this situation, the road signs do indicate otherwise, so by staying in the right hand lane she was committing no offence. That’s why I advised her to take legal action.”

A DVA spokesman last night said the merits of the individual case had been considered before a refund was decided.

“Having considered the individual circumstance of this case it appears that the candidate may have needed clearer instruction at the particular stretch of road. In the circumstances, a sympathetic view was taken of this individual case and the decision was taken to refund her fee.

“Circumstances in which the result of a driver test can be challenged are relatively narrow and relate solely to the proper conduct of the test and not to the examiner’s discretion in assessing the standard of the candidate’s driving.”

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