The Road Transport Act 2013 (NSW) and the Crimes Act 1900 (NSW) both deal with traffic offences in NSW.

Traffic offences can be classed as “Major Offences” under section 4 of the Road Transport Act 2013 (the Act) and provides a definition.

Included in these is Negligent Driving which may be found under section 117 of the Road Transport Act 2013.

Other classes of Major Traffic offences are:

  • Predatory driving.
  • Police pursuits.
  • Failing to stop and assist.
  • Negligent driving causing death or grievous bodily harm.
  • Furious or reckless driving.
  • Menacing driving.
  • Driving in a Manner Dangerous
  • Drink and Drug Driving.
  • Driving offences causing death or grievous bodily harm which are prosecuted under any other sections of the Crimes Act 1900, such as section 52A of the Crimes Act 1900 involving Dangerous Driving.

What is Negligence and Negligent Driving?

Negligence refers to the failure of a person to exercise the required due care and attention of a reasonably prudent person would exercise in the same circumstances. This is often referred to as the reasonable person test and requires an objective view to be adopted to consider if the crash would have occurred if the ‘reasonable prudent driver’ had been driving.

Driving negligently will normally involve inattention and or not keeping a proper lookout that results in a collision and or where a driver fails to abide by the road rules resulting in a crash.

In Taylor v Rodgers (1960) 124 JP 217 it was held when determining negligence:

“…the sole question is whether the defendant was exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances. The test is an objective one and it does not matter whether the failure, if failure there was, to exercise the required degree of care and attention results from a deliberate act on the part of the driver or from an error of judgement”.

In general terms negligence will arise for a failure to take proper care. This might form the proposition that the driver was not exercising the due care and attention required or the conduct was an unreasonable error of judgment.

Simply because there was a crash is not proof of a negligent act.

An important aspect of negligence and negligent driving is that simply because there was a collision involving a vehicle does not mean by that fact alone, automatically mean there must have been some unexplained negligent act: R v Waitling (2007) 48 MVR 396; [2007] ACTSC 64.

For those reasons it is always incumbent that the police be able to prove an act of negligence, it cannot be automatically inferred from the outcome.

As such in considering whether an offence has been committed the court must have regard to all the circumstances of the driving as per section 117(3) of the Road Transport Act 2013, including the following:

  • The nature, condition, and use of the road (or road related area),
  • The amount of traffic that was present at the time, or which might be reasonably be expected to on the road at the time,
  • Any obstructions or hazards that were on the road at the time, for example broken down or crashed vehicles, fallen loads and accident or emergency scenes.

Examples of Negligent Driving

Other examples of negligent driving include:

  • Failing to driver to the conditions of the road, such as speeding in the wet that resulted in the vehicle crashing or losing control.
  • Reversing out of a driveway and crashing into another vehicle or pedestrian.
  • Hitting a pedestrian on a pedestrian crossing.
  • Driving while fatigued, falling asleep, and losing control of the vehicle while driving (Jiminez v The Queen (1992) 173 CLR 572; Giorgianni v The Queen (1985) 156 CLR 473).
  • Driving without your hands on the steering wheel.
  • Tailgating other motor vehicles.
  • Failing to Stop or slow at an intersection – whether it is Stop or Give Way sign.
  • Using a mobile phone while driving, despite Rule 300 of the Australian Road Rules 2014 creating a specific offence.
  • Failing to stop or reduce speed when affected by bright lights such as the morning sun or the headlights of other vehicles.

Onus and Burden of Proof

Negligent driving is a strict liability offence.

This means that it does not matter whether you had an intention (the mental element or mens rea) to commit the crime or offence. The prosecution only needs to prove that you did the physical act (or actus reus) being the driver of a motor vehicle, that resulted in the commission of the offence.

Accordingly, your life can unravel if you have a crash when you are not paying attention, such as being on ‘automatic pilot’, daydreaming, and or exercising poor judgment in traffic resulting in a crash.

The prosecution bears the sole onus of proving all the elements of negligence beyond a reasonable doubt, which is known as the criminal standard of proof.

While a person charged is not required to prove their innocence, it may be appropriate to present evidence from the defence point of view to rebuke and negative the prosecution’s evidence and narrative, to create the reasonable doubt needed for an acquittal.

In the circumstances after taking all the admissible evidence into account, if a court cannot determine where the truth lies or can make findings, you as the defendant must be given the benefit of the doubt and acquitted.

Ultimately it is the entire burden of proof of the prosecution to demonstrate to the criminal standard that an individual did not take the proper care or exercise the requisite standard of care and attention when driving a motor vehicle. This is a very high test.

Elements of Negligent Driving

The elements of the offence are:

  1. The accused,
  2. Drove,
  3. A motor vehicle,
  4. Upon a road or road related area,
  5. Negligently.

Therefore, the prosecution must establish the following elements beyond a reasonable doubt (BRD):

  • The Accused – the prosecution must prove and positively identify you as the ‘driver’.
  • Drove, means driving by being in control of the steering, movement, or propulsion of a vehicle. It also includes ‘riding’ a vehicle such as a motorcycle or bicycle.
  • A Motor-Vehicle (vehicle) – means a vehicle that is built to be propelled by a motor that forms part of the vehicle.
  • Upon a road – means a road that is open to or used by the public and is developed for or has as its main uses, the driving or riding of motor vehicles, or
  • Upon a road related area means an area that divides a road, a footpath or nature strip, an area that is not a road and is open to the public and designated for use by cyclists or animals, and area that is not a road and that is open to or used by the public for driving, riding, or parking vehicles.
  • Negligently means a failure to take the proper due care and attention when driving (see explaination below).

Causation proofs

  • In relation to negligent driving occasioning GBH, it must be proved that GBH occurred due to the accused’s negligence.
  • In relation to negligent driving occasioning death, it must be proved that death occurred due to the accused’s negligence.

Penalties

In NSW, the offence of negligent driving is a broad offence that encompasses three levels:

  1. Negligent driving NOT occasioning death or grievous bodily harm – Section 117(1)(c) of the Road Transport Act 2013.

Maximum penalty is 10 penalty units (each penalty unit is worth $110) and the court also has the discretion to disqualify the driver for a period determined by the court.

Maximum penalty is 30 penalty units or imprisonment for 18 months or both (1st offence) or 50 penalty units or imprisonment for 2 years (2nd or Subsequent offence).

Negligent driving occasioning Grievous Bodily Harm – Section 117(1)(b) of the Act.

Maximum penalty is 20 penalty units or imprisonment for 9 months or both (1st offence) or 30 penalty units or imprisonment for 12 months or both (2nd and subsequent offence).

Disqualification

1st offence = Automatic 3 years – Minimum 12 months [Maximum = Unlimited]

2nd offence – Automatic 5 years – Minimum 2 years [Maximum = Unlimited]

Negligent driving occasioning death – Section 117(1)(a) of the Act.

Maximum penalty is 30 penalty units or imprisonment for 18 months or both (1st offence) or 50 penalty units or imprisonment for 2 years or both (2nd or subsequent offence).

Disqualifications

1st offence = Automatic 3 years – Minimum 12 months [Maximum = Unlimited]

2nd offence – Automatic 5 years – Minimum 2 years [Maximum = Unlimited]

Understanding “first offence” and “second or subsequent offence”

A second or subsequent offence is where the person has been convicted of a negligent driving offence that has taken place within the past 5 years, or another previous serious major offence within the past 5 years, such as a drink driving offence: see section 9 of the Road Transport Act 2013.

Classes of Negligent Driving

Negligent Driving not occasioning GBH or Death

This is the least serious form of offence and will usually be dealt with by way of fine and will never see the inside of a court room unless you, as the defendant elect to take the matter to court as a not guilty plea.

This kind offence will usually be characterised where there are no injuries and will not amount to grievous bodily harm and death.

However, depending on the level of negligence, even if there are no injuries, you may still be issued with a court attendance notice by a police officer.

A typical negligent driving offence (not occasioning GBH or Death) might be the typical rear-end collision or T-bone collision where no one was hurt.

You could also receive a negligent driving Traffic Infringement Notice (TIN) for doing a burn out (although there is a specific offence under section 116 of the Road Transport Act 2013) or if you lose traction of the tyres resulting in the vehicle sliding out.

The takeaway is there does not have to be a crash or collision where there is damage to property.

Negligent Driving Occasioning Grievous Bodily Harm

This offence will be preferred if the police find that because of your negligent driving, GBH was caused to the other person.

GBH is defined under section 117(4) of the Road Transport Act 2013 as including any permanent or serious disfigurement.

At Common law, the words, “grievous bodily harm” are given their ordinary and natural meaning where the term “grievous” means “really serious”: DPP v Smith [1961] AC 290; Haoui v R (2008) 188 A Crim R 331 at [137], [160]; Swan v R [2016] NSWCCA 79 at [54]–[63].

Negligent Driving Occasioning Death

This is the most serious negligent driving offence where the negligent driving causes the death of another person.

Do I have to go to Court?

Perhaps…

As mentioned above less serious driving offences will not generally require a court appearance. You will just be issued a fine which you can pay. This does not mean you have a criminal conviction.

However, if you decide to contest the fine or charge, or would like the matter to be dismissed, you will need to appear in the Local Court, where a Magistrate will determine the outcome. This may attract a conviction and so a criminal record, depending on the circumtances of the matter.

During this process, you could also make representations to the police to have the offence withdrawn and avoid court altogether. In those circumstances you should obtain legal advice and contact us immediately on (02) 8824 4736 to see whether you should make that decision to approach the prosecuting authority.

For more serious driving offences such as negligent driving occasioning death or grievous bodily harm, you will likely be charged and issued a Court Attendance Notice (CAN) where you will be required to appear in the Local Court.

Defences – Duress – Necessity – Honest and Reasonable Mistake of Fact

Entering a not guilty plea also allows you to raise a defence which may help justify your actions. The available defences for a negligent driving charge include:

Duress

Where you were unlawfully coerced, threatened and compelled to drive by another person. For example if you were car jacked and forced to drive in a negligent manner to evade police and engage in a police pursuit.

Necessity

Where the negligent driving was necessary in order to avert a more serious outcome because you were in imminent danger or peril and you, as the driver had no other alternative to avoid the impending threat, so driving negligently to avoid a greater danger, injury, threat, or you were responding to an emergency.

Honest and Reasonable Mistake of Fact

Proudman v Dayman (1941) HCA 28 is the leading case that explores this defence for strict liability offences, such as negligent driving and speeding offences.

A person will not be found guilty if they held at the time, an honest and reasonable belief, although nevertheless a mistaken belief, of a state of facts which if they existed, would have rendered the person’s act innocent.

This defence cannot be relied upon where there is a mistake of law such as they did not know what they were doing was illegal or an offence. This is where the saying that ‘ignorance of the law is no defence’ originates.

Perhaps one of the most famous cases involving honest and reasonable mistake of fact is Orstrowski v Palmer [2004] HCA 30 or the “Lobster Fisherman Case” in which Palmer a lobster fisherman was fined for illegal fishing in Western Australia despite seeking out and receiving advice from his local fisheries office of where he could put his lobster pots. In this circumstance the High Court found that while Palmer’s belief was honest and reasonable, he was mistaken about the law and not a fact.

The defence can only arise where it relates to the facts of the offence. A person must also be able to demonstrate that if their belief had been correct, they would not have been committing the offence.

This issue commonly arises in relation to faulty speedometers where the person is charged with speeding. They might argue that if the speedo had been accurately calibrated, they would never have committed the offence.

What to do next?

If you have been issued a fine or charged with a Negligent Driving matter, call Richard McDonald of McDonald Law on (02) 8824 4736 or email us for an appointment at [email protected]. We will be able to assist you, provide you with honest feedback, and give you practical options to plan, prepare and resolve your case.