Negligent driving

If you have been charged with driving negligently (s.117(1) Road Transport Act 2013), then the prosecution must establish certain elements of the offence beyond reasonable doubt:

1. You were driving a motor vehicle on a road - remember road also covers 'road related area' which is the side of the road or verge. It can also cover car parks and national parks.

2. You were driving in a negligent manner – The Concise English Dictionary defines negligent as "careless, unheedful, inattentive". Negligence covers a wide variety of conduct. The most often used test, is that the prosecution must establish that you were driving, "in such a way that you departed from the usual standard of care used by others on the road and that is expected of a typical prudent driver in the same circumstances" (DPP NSW v Yeo (2008) NSWSC 953). An example of negligent driving might be a minor car crash caused by failing to keep a proper lookout.

Penalty

This is a fine only offence. Usually a person charged with Negligent Driving will receive a Traffic Infringement Notice which carries three (3) demerit points - this will occur if there is no accident or a minor accident. If the Negligent Driving involves a more substantial accident, the Police will usually lay a formal charge which is then returnable at court. If a Negligent Driving charge proceeds to court, the maximum penalty for this offence is a fine of $1,100 (10 penalty units) (s.117(1)(c) Road Transport Act 2013).

There is no automatic disqualification for a Negligent Driving charge, however, a Magistrate has the discretion to order a disqualification period if they think it appropriate.

Negligent driving occasioning grievous bodily harm / DEATH

Charges of negligent driving occasioning grievous bodily harm and negligent driving causing death are considered by the court to be very serious traffic offences (s.117(1) Road Transport Act 2013). In these circumstances, the prosecution must establish additional elements before being able to establish the offence beyond reasonable doubt:

1. You were driving a motor vehicle on a road - 'driving' means using the controls for directing the direction of the vehicle (Mercorella v Page (1975) 12 SASR 431).

2. You were driving in a negligent manner

3. Whilst driving in this manner, you caused another person grievous bodily harm or death – 'grievous bodily harm' is defined to include, "any permanent or serious disfigurement", and means that you caused harm of a really serious kind (Smith (1960) 3 ALL ER 161).

Penalty

The maximum penalty for this offence depends on whether it is a first or second offence. The penalties include:

For a first offence:
- if GBH : a $2,200 fine (20 penalty units) and/or 9 months’ imprisonment ;
- if death : a $3,300 fine (30 penalty units) and/or 18 months' imprisonment ;
Second or subsequent offence:
- if GBH : a $3,300 fine (30 penalty units) and/or 12 months’ imprisonment (s.117(1)(b) Road Transport Act 2013) ;
- if death : a $5,500 fine (50 penalty units) and/or 2 years' imprisonment (s.117(1)(a) Road Transport Act 2013).

The minimum and automatic disqualification periods for this offence also depend on whether this is a first or second offence. The relevant disqualification periods include:

First offence:
- If GBH :
  - Automatic disqualification period – 3 years’ disqualification
  - Minimum disqualification period – 12 months’ disqualification
- If death :
  - Automatic disqualification period – 3 years’ disqualification
  - Minimum disqualification period – 12 months’ disqualification
Second or subsequent offence:
- If GBH :
  - Automatic disqualification period – 5 years’ disqualification
  - Minimum disqualification period – 2 years’ disqualification
- If death :
  - Automatic disqualification period – 3 years’ disqualification
  - Minimum disqualification period – 2 years’ disqualification

Case Examples

A person who is overcome by sleep is not necessarily guilty of driving negligently
It is not necessarily negligence to drive on the wrong side of the road at times
It was a defence to negligence that a person drove a car that suffered a mechanical defect

Ideally you should speak to your solicitor before you speak to police – you need advice as to your rights and obligations so that you are more comfortable with the processes and understand what is happening. Only then can you make the best decisions.

YOUR NEXT STEPS WHEN YOU ARE CHARGED WITH A NEGLIGENT DRIVING OFFENCE

1. Contact us. Early contact with Tankard’s Law is extremely important, so that you can start to take the right actions immediately. Obtaining advice in relation to making a statement to police or not. Do you have to provide a blood sample if requested? You need early advice.

2. Gather material immediately. You should immediately type out your version of what occurred prior to and during the incident and provide this to your lawyer – details get lost in your memory over time. This step is crucial. You should find out who else might be a witness to what took place, get their details and have them provide a written account of what happened. You should take photos of the scene of any accident, do a sketch of the area and look up the weather or sun location times on the Bureau of Meteorology website.

3. Prepare. Your best chance in achieving the outcome that you want is to prepare your case properly. Let us help you.

If you have a question about the processes involved in arrest or charge, or attending court and what charges you face or need help understanding what the police are saying to you, contact us by phone on 02 6921 3220 or make a website enquiry. We will get back to you promptly.

Principal Solicitor and Director, Zac Tankard, has been helping Riverina locals charged with criminal and traffic offences since 1998. There is no one better qualified to get behind you when you need it most.