Negligent Driving

Negligent driving involves operating a vehicle without due care and attention, causing death or grievous bodily harm, carrying penalties that may include imprisonment and lengthy licence disqualification.

Negligent driving is a serious indictable offence within the NSW justice system, and a conviction can result in severe consequences for the accused. As such, it is necessary that charges of negligent driving, particularly negligent driving causing death, are dealt with seriously and with the support of experienced criminal lawyers.

The team at Hamilton Janke Lawyers have years of experience defending individuals accused of traffic offences and will ensure you receive the best possible outcome.

What is Negligent Driving?

The offence of negligent driving generally encompasses situations where an accident has occurred; however, the conduct of the driver involved in the accident does not meet the threshold of other serious offences, such as dangerous or reckless driving.

The most common examples of situations that may be classified as negligent are where a moment of inattention causes an accident or where a driver has failed to comply with the road rules and an accident ensues.

Negligent Driving Offences

Negligent Driving occasioning Grievous Bodily Harm

The relevant legislation regarding Negligent Driving occasioning grievous bodily harm may be found in s117(1)(b) Road Transport Act. Under the Act, Negligent Driving occasioning grievous bodily harm is defined as driving in a manner that causes grievous bodily harm to another person.

The penalty for negligent driving is more severe if a person suffers grievous bodily harm due to the accident. Grievous bodily harm is defined as an injury that is ‘really serious’. It may involve an injury that is permanent or seriously disfigures a person. However, the injury is not required to be long-lasting or life-threatening.

Negligent Driving Occasioning Death

Legislation for Negligent Driving Occasioning death can be found in s117(1)(a) of the Road Transport Act 2013 and is similarly defined as above; driving without the standard of due care and attention reasonably expected of the ordinary prudent driver driving in a manner that causes death.

Negligent driving causing death is the most severe form of negligent driving and one of the most serious traffic offences.

Difference Between Dangerous Driving and Negligent Driving

Dangerous driving and Negligent Driving are two very separate offences. The charge of Negligent driving is contained in the Road Transport Act s117 and is defined in the act as “driving without the standards of due care and attention reasonably expected of the ordinary prudent driver.”

This is in contrast to the criteria for Dangerous Diving as defined in Crimes Act s52A. Under the Crimes Act, dangerous driving whether it be charged under s54A(1) Dangerous driving occasioning death or s54A(3) dangerous driving occasioning grievous bodily harm, requires that the driver of the vehicle be:

(a) intoxicated by drugs and or alcohol

(b) be speeding; or

Is Negligent Driving an Indictable Offence?

Negligent driving is a criminal offence in NSW under s117 of the Road Transport Act 2013.

For the purpose of this section, negligence occurs when someone drives ‘without the due care and attention reasonably expected of the ordinary prudent driver’.

In determining whether the reasonable standard has been deviated from, the court may have regard to:

The nature, condition and use of the road on which the offence is alleged to have been committed;
The amount of traffic on the road (either at the time of the offence or the amount of traffic which might reasonably be expected to have been on the road at the time of the offence); and
Any obstructions or hazards on the road.

Penalty for Negligent Driving in NSW

The maximum penalty for negligent driving occasioning grievous bodily harm depends on whether it is a person’s first offence. If it is a person’s first offence, the maximum penalty is $2,200 and/or 9 months imprisonment. If it is a person’s second (or subsequent) offence, the maximum penalty is a $3,300 fine and/or 12 months imprisonment.

The maximum penalty for negligent driving occasioning death also depends on whether it is a person’s first offence. For a first offence, the maximum penalty is a fine of $3,300 and/or a maximum term of imprisonment of 18 months. If it is a second or subsequent offence, the maximum fine is $5,500 and/or a maximum term of imprisonment of 2 years.

What is the Disqualification Period for Negligent Driving in NSW?

In the case of a first offence under s117(1)(a) of Negligent driving occasioning death, the minimum disqualification period is 12 months and an unlimited maximum period. In the absence of any Court orders, the automatic disqualification period is 3 years.

If, however, the individual is charged as having committed a second offence under s117(1)(a) the minimum disqualification period is 2 years and an unlimited maximum term. In the absence of any Court orders, the automatic disqualification period is 5 years.

A first offence under s117(1)(b) of Negligent Driving occasioning grievous bodily harm will carry a minimum disqualification period of 12 months or an unlimited maximum period if the court sees fit. In the absence of a Court order, the automatic disqualification period of 3 years.

For a second offence under s117(1)(b), the minimum disqualification period is 2 years or an unlimited maximum period if the court sees fit. In the absence of any Court orders, the automatic disqualification period is 5 years.

Defences for Negligent Driving in NSW

The charge of negligent driving in NSW has several possible defences which may be available to the defendant depending on the circumstances surrounding the offending. Our experienced team at Hamilton Janke Lawyers can advise you on possible criminal defences that may apply to your circumstances.

Necessity: The accused is to prove their actions were reasonable and justifiable given a certain situation or accumulation of circumstances. Certain factors that go towards the determination of necessity are any extenuating circumstances where a person honestly and reasonably believes they are in a situation of ‘immediate peril’, and they are acting to avoid ‘irreversible evil’ to themselves or another; for example, while driving someone to a hospital where they are suffering from really serious injuries.
Duress: Driving in a particular manner due to threats or coercion that intimidate or menace the driver into acting unlawfully.
Reasonable and Honest Mistake of Fact: The driver was reasonable and honest in their mistake resulting in driving recklessly due to misinterpretation or misrepresentation of road signs or road rules concerning speed limit, traffic signs or conditions or other reasonable factors which led them to drive in a manner contrary to the law.

Pleading Not Guilty to Negligent Driving

If you enter a plea of not guilty to the charge of negligent driving, the matter will be listed for hearing for the Court to determine after considering the evidence.

Pleading Guilty to Negligent Driving

In entering a guilty plea, you are acknowledging and accepting that you committed the offence of negligent driving. An early guilty plea will entitle you to a discount of up to 25% of the penalty which otherwise would be handed down.

Before entering a plea to a charge of negligent driving, it is important to seek legal advice.

Burden of Proof

As a criminal matter, the burden of proof for charges of negligent driving rests with the prosecution.

This means that for a conviction to occur, the prosecution must prove beyond reasonable doubt all the circumstances:

You failed to take proper care and exhibit the attention reasonably expected of the ordinary prudent driver;
You were operating the motor vehicle at the time;
Your negligent driving was the causal factor for the resulting grievous bodily harm or death;
Beyond reasonable doubt, grievous bodily harm or death has resulted.

Why Choose Hamilton Janke Lawyers

If you are being charged with a traffic offence, it is vital that you seek legal advice and legal representation. An experienced criminal defence lawyer will be able to advise you on how to proceed and assist you through every step of the process.

Hamilton Janke Lawyers has extensive experience defending traffic matters. For advice or representation for a traffic matter, contact our expert lawyers today.