The offence of negligent driving generally encompasses situations where an accident has occurred; however, the conduct of the driving that was 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 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 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 as a result of the accident. Grievous bodily harm is defined as an injury that is ‘really serious’. It may involve an injury that is permanent or one which seriously disfigures a person. However, the injury is not required to be long-lasting or life-threatening.
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.
The maximum penalty for negligent driving could result in license disqualification if the matter goes before a Court
is a fine of $1,100 and will usually be accompanied by a licence suspension. However, the maximum penalty increases if the incident results in grievous bodily harm or death.
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 penalty is a fine of $5,500 and/or a maximum term of imprisonment of 2 years.
In the case of a first offence under s117(1)(a) of Negligent driving occasioning death, the minimum period of disqualification 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 period of disqualification 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.
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
(c) driving in a manner dangerous to another person.
Through this comparison it can be seen that the two charges are very independent of one another as the latter- Dangerous driving under the Crimes Act denotes an intentional disregard for the safety of others: however, Negligent Driving under s117 Road Transport Act requires a lack of due standard of care when operating a motor vehicle.
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. Even if the prosecution is able to prove the elements of the offence, a person may be able to avoid conviction if they are able to argue one of the following defences:
Necessity: when presenting the defence of necessity, the driver is to prove that their actions were reasonable and justifiable given a certain situation or a certain accumulation of circumstances. Certain factors which 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 to 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 which 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 in a reckless manner 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.
When prosecuting a charge of negligent driving, it is entirely up to the prosecution to prove that the defendant in the matter failed to take proper care when operating the motor vehicle and thus was acting in a negligent manner. They must prove that the defendant failed to take proper care and exhibit the attention reasonably expected of the ordinary prudent driver. Additionally, it is for the prosecution to prove that the defendant was, in fact, operating the motor vehicle at the time, and that the defendant’s negligent driving was the casual factor for the resulting grievous bodily harm or death. If a more serious form of negligent driving has been alleged, the prosecution will also need to prove beyond reasonable doubt that grievous bodily harm or death has resulted.
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.
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.
Hamilton Janke Lawyers has extensive experience defending traffic matters. For advice or representation for a traffic matter, contact our lawyers 24 hours a day, 7 days a week on 4038 1666.
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.
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