Negligent driving
What is negligent driving?
There are 3 kinds of negligent driving in New South Wales. They include:
1. Negligent driving causing death;
2. Negligent driving causing grievous bodily harm (GBH); and/or
3. Negligent driving not causing death or GBH;
NEGLIGENT DRIVING NOT CAUSING DEATH OR GBH
Case law
The case of Director of Public Prosecutions (NSW) v Yeo and Anor [2008] NSWSC 953describes negligent driving generally as:
“where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances.”
Legislation
Section 117 of the Road Transport Act NSW 2013 provides that a, ‘person must not drive a motor vehicle on a road negligently’.
Negligent driving is defined as, “driving without the standard of due care and attention reasonably expected of the ordinary prudent driver”.
Section 117 (3) of the Road Transport Act 2013 provides that the Court must have regard to all the circumstances of the case in considering whether your driving was negligent, including the following:
· Any obstructions or hazards on the road (such as broken down or crashed vehicles, fallen loads and accident and emergency vehicles);
· The amount of traffic on or expected to have been on the road; and/or
· Circumstances about the road — e.g. it’s condition
What must the prosecution prove?
To establish negligent driving, the prosecution must prove beyond a reasonable doubt that:
· You were driving a motor vehicle on a road; and
· That you were not exercising, ‘the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances’.
Pleading guilty
If you agree that you have committed the offence and the police are able to prove so than sometimes it is best to plead guilty at an early opportunity to receive the maximum discount.
The early guilty plea shows the Court that you have remorse and contrition for your actions.
Maximum penalty
If the driving does not cause grievous bodily harm or death, the maximum penalty is 10 penalty units or $1,100.00. The Court also has jurisdiction to disqualify the driver for a period determined by the Court.
Negligent driving causing GBH
To establish negligent driving occasioning grievous bodily harm, the prosecution must prove, beyond a reasonable doubt in addition to the above elements of negligence that the driving caused any permanent or serious disfiguring of the person.
Bodily injury of a ‘really serious kind’ to another person includes, broken bones, loss of a limb, damage to organs or the destruction of the foetus of a pregnant woman.
Maximum penalty
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If the driving occasions grievous bodily harm, the maximum penalty is 20 penalty units or imprisonment for 9 months or both (first offence); or 30 penalty units or imprisonment for 12 months or both (second or subsequent offence).
In relation to todisqualified the law states that there is an automatic disqualification (First Offence) of 3 years. The Court has the power to reduce this period to 12 months if the circumstances permit.
Automatic disqualification (Second offence) is 5 years. The court has the power to reduce this period to 2 years if the circumstances permit.
Negligent driving occasioning death
To establish negligent driving occasioning death, the prosecution must prove beyond a reasonable doubt and in addition to the above, that: –
A person died as a result of the negligent driving.
Maximum penalty
If the driving occasions death, the maximum penalty is 30 penalty units or imprisonment for 18 months (first offence); or
The Automatic disqualification (First Offence) is 3 years. The court has the power to reduce this period to 12 months if the circumstances permit.
The Automatic disqualification is 50 penalty units or imprisonment for 2 years or both (second or subsequent offence).
The Automatic disqualification (Second offence) 5 years. The court has the power to reduce this period to 2 years if the circumstances permit.
Defences
Duress — If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue- Duress.
Necessity — If your actions were necessary to prevent a greater harm from occurring, you may have the defence of-Necessity.
Reasonable mistake of fact — This is an honest mistake of fact based on reasonable grounds which renders conduct innocent that would otherwise have legal consequences.
Statistics
For 117(1)(a) “drive vehicle on road negligently occasioning death” — 52% of offenders for a first offence received a Section 9 Good behaviour bond whereas 23% received a suspended gaol sentence. Note the penalties increase if the offence is a 2nd or subsequent offence
For 117(1)(b) “drive vehicle on road negligently occasioning GBH” — 34% of offenders for a first offence received a Section 9 Good Behaviour bond whereas 28% received a fine. Note the penalties increase if the offence is a 2nd or subsequent offence
For 117(1)© drive vehicle on road negligently not occasioning death or GBH, 76% received a fine
Case studies
Our client was involved in a motor vehicle accident at a traffic light and was subsequently charged by police for negligent driving occasioning grievous bodily harm. The police alleged that our client had caused the collision by turning into the path of an oncoming vehicle. However, our client disputed this arguing that it was in fact a car colliding with her from behind that forced her into the path of the oncoming vehicle. The defence successfully argued this case where it could not be established beyond reasonable doubt that the collision had been caused by our client’s fault/negligence. The client was found not guilty.
Another of our clients was charged with driving a motor vehicle recklessly which was unsupported by the evidence. We negotiated with the police and our client pleaded guilty to the lesser charge of driving a motor vehicle negligently and was sentenced to a relatively lenient fine.
We represented a third client in her severity appeal hearing against her sentence in relation to a charge of negligent driving occasioning grievous bodily harm. We submitted that the licence disqualification prevented her from using her car which she needed for work. It was argued that the disqualification of her car licence was unreasonable and would adversely affect her. The appeal was upheld and the licence disqualification was reduced.
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