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. Negligent driving involves conduct behind the wheel that falls below what the law considers responsible, whether due to inattention, poor judgment, or failure to observe road rules.
Key Takeways
- Negligent driving is a criminal offence under section 117 of the Road Transport Act 2013. It applies whenever your driving falls below the standard of a reasonable, careful driver, even if the lapse was only momentary.
- There are three tiers: negligent driving with no death or injury, negligent driving occasioning grievous bodily harm, and negligent driving occasioning death. The penalties climb sharply with the harm caused.
- The basic offence is usually handled by an infringement notice, with a fine and three demerit points. The two serious tiers carry up to two years imprisonment and mandatory licence disqualification.
- Negligent driving is not the same as dangerous driving. Dangerous driving under section 52A of the Crimes Act 1900 requires an extra element, such as intoxication or a dangerous speed, and carries far heavier penalties.
- A conviction is not inevitable. A section 10 dismissal or conditional release order can avoid both a criminal record and disqualification, especially for a first offence, and the right defence may defeat the charge altogether.
What Is Negligent Driving?
Negligent driving is established where it is proven beyond a reasonable doubt that the accused drove a motor vehicle in a manner that departed from the standard of care expected of an ordinary, prudent driver in the same circumstances.
In practical terms, this means a driver is negligent when their conduct behind the wheel falls short of what a reasonable person would do, whether through inattention, distracted driving (such as using a mobile phone), a failure to follow road rules, or a lapse in judgment that results in an accident. A reasonable mistake about the law or road conditions may also give rise to a negligent driving charge.
That said, a charge of negligent driving does not automatically result in a conviction. Defences may be available depending on the circumstances, including where the driver acted under duress or necessity, or where they made a reasonable and honest mistake of fact.
Negligent driving is distinct from serious driving offences and the most serious traffic offences, such as dangerous or reckless driving, which carry more severe penalties. It generally applies to situations where an accident has occurred, but the conduct does not reach the higher threshold required for those offences.
Common Examples of Negligent Driving
Common situations that may give rise to a negligent driving charge include:
- A momentary lapse of attention, causing a traffic accident or car accident (for example, looking away from the road briefly)
- Failure to comply with road rules, such as failing to obey traffic signals or exceeding the speed limit, that leads to an accident
- Using a mobile phone while driving in a way that causes an incident
- Failing to observe road or traffic conditions and colliding with another vehicle or person
- Driving while fatigued to a degree that causes a traffic accident or car accident
Negligent Driving Offences in NSW
There are three tiers of negligent driving offences under section 117(1) of the Road Transport Act 2013, which is the relevant legislation governing these offences in NSW. These offences are defined and prosecuted under NSW law as part of the broader traffic law framework, with each tier reflecting the severity of the consequences resulting from negligent driving.
Negligent Driving – Not Occasioning Death or GBH (s117(1)(c))
This is the least serious form of the offence. It occurs where a driver is found to have driven negligently, but where no death or grievous bodily harm resulted.
This charge is commonly issued as a traffic offence via a traffic infringement notice following a minor accident. It carries no automatic licence disqualification and no possibility of imprisonment, although the court retains discretion to disqualify a driver in appropriate circumstances.
Negligent Driving Occasioning Grievous Bodily Harm (s117(1)(b))
Negligent driving occasioning grievous bodily harm (GBH) is a serious criminal offence under NSW law. This offence arises where a driver’s negligent driving causes grievous bodily harm to another person. Under section 117(4) of the Road Transport Act 2013, grievous bodily harm includes any permanent or serious disfigurement. In legal terms, GBH refers to serious injury, which may include injuries such as broken bones, permanent scarring or burns, or the destruction of a foetus.
The injury does not need to be life-threatening, but it must be a serious injury. This is a significantly more serious offence than negligent driving without harm, and carries the possibility of imprisonment.
Negligent Driving Occasioning Death (s117(1)(a))
This is the most severe form of negligent driving, specifically referred to as negligent driving causing death. It applies where a driver’s negligence causes the death of another person.
Negligent driving causing death is classified as a major offence under section 4 of the Road Transport Act 2013, meaning it is treated as a serious indictable matter within the NSW criminal justice system. This offence carries severe penalties and severe consequences, including legal consequences such as an automatic disqualification period from holding a driver’s licence. A conviction can result in significant fines, imprisonment, and a criminal record.
Difference Between Dangerous Driving and Negligent Driving
Negligent driving and dangerous driving are two separate and distinct offences governed by different legislation.
Negligent driving is found in section 117 of the Road Transport Act 2013 and is defined as driving without the standard of due care and attention reasonably expected of the ordinary prudent driver. A negligent driver may face penalties such as a fine and demerit points, and negligent driving leads to legal consequences, especially when it results in injury or death. The severity of the offence influences the fines and demerit points imposed, and a negligent driver can also face license disqualification or be held liable for injury caused.
Dangerous driving occasioning death or grievous bodily harm is found in section 52A of the Crimes Act 1900 (NSW). To establish dangerous driving, the prosecution must prove that the driver was, at the time of the impact:
- under the influence of alcohol or drugs; or
- driving at a speed dangerous to another person; or
- driving in a manner dangerous to another person.
The threshold for dangerous driving is therefore higher, requiring proof of one of those specific aggravating states. Negligent driving does not require the prosecution to prove that the driver was intoxicated, speeding, or acting in an inherently dangerous manner, only that the standard of driving fell below that of a reasonably prudent driver.
Penalties for dangerous driving are considerably more severe. Dangerous driving occasioning death under section 52A(1) of the Crimes Act 1900 carries a maximum penalty of 10 years’ imprisonment, rising to 14 years in aggravated circumstances. By comparison, negligent driving occasioning death carries a maximum of 18 months’ imprisonment for a first offence.
Is Negligent Driving a Criminal Offence?
Negligent driving is a criminal offence under section 117 of the Road Transport Act 2013. Where the offence occasions death or grievous bodily harm, it is classified as a major offence, placing it among the most serious traffic-related criminal matters and can result in a criminal conviction.
A conviction for any form of negligent driving that proceeds to court will constitute a disclosable court outcome, which can appear on a criminal record. A conviction for negligent driving will appear on a criminal record and may impact employment, travel visas, and insurance premiums.
Where negligent driving does not occasion death or grievous bodily harm and is dealt with by an infringement notice, it does not result in a criminal record. However, if the matter proceeds to court, whether by election or because of the circumstances, a criminal conviction may follow unless the court exercises its discretion to impose a non-conviction order.
Penalties for Negligent Driving in NSW
The following penalties apply under section 117(1) of the Road Transport Act 2013. One penalty unit in NSW is currently valued at $110.
It should be noted that these are maximum penalties. The actual penalty imposed by a court will depend on the specific circumstances of each case, including any mitigating or aggravating factors.
For the least serious form, negligent driving without death or GBH, the offence is commonly handled by way of a traffic infringement notice. The fine and demerit points imposed depend on the severity of the negligent driving offence. Typically, this results in a fine and three demerit points (or seven during double demerit periods, such as public holidays). No court attendance is required unless the driver elects to contest the matter.
Penalty Table for All Negligent Driving Offences
Offence | Offence Type | Maximum Fine | Maximum Imprisonment |
Negligent Driving (no death or GBH) | First Offence | $1,100 (10 penalty units) | None |
Negligent Driving Occasioning GBH | First Offence | $2,200 (20 penalty units) | 9 months |
Negligent Driving Occasioning GBH | Second or subsequent Offence | $3,300 (30 penalty units) | 12 months |
Negligent Driving Occasioning Death | First Offence | $3,300 (30 penalty units) | 18 months |
Negligent Driving Occasioning Death | Second or subsequent Offence | $5,500 (50 penalty units) | 2 years |
Disqualification Periods
Licence disqualification does not apply automatically to negligent driving without death or grievous bodily harm. The court may, however, exercise a discretionary power to disqualify a driver in appropriate circumstances.
For the more serious forms of the offence, an automatic disqualification period is mandatory. These automatic disqualification periods are imposed under NSW law and must be served following a conviction for serious negligent driving offences, such as those causing death or grievous bodily harm. The mandatory disqualification periods are as follows:
Offence | Offence Type | Minimum Disqualification | Automatic Disqualification (if no court order) |
Negligent Driving occasioning GBH | First offence | 12 months | 3 years |
Negligent driving occasion GBH | Second or subsequent offence | 2 years | 5 years |
Negligent Driving occasioning death | First offence | 12 months | 3 years |
Negligent Driving occasioning death | Second or subsequent offence | 2 years | 5 years |
The court may vary the disqualification period, but cannot impose a period less than the statutory minimum. The maximum period of disqualification is unlimited. If a person is also sentenced to a term of imprisonment, the disqualification period is automatically extended by the length of the custodial sentence.
It is also important to note that persons convicted of negligent driving occasioning death or grievous bodily harm are not eligible to apply for early removal of their licence disqualification under the standard scheme available to other disqualified drivers.
Aggravating Factors in Negligent Driving Cases
While the presence of aggravating factors does not change the charge itself from negligent to dangerous driving, courts take such factors into account when determining the appropriate sentence. Factors that may increase the severity of the penalty include:
- A prior criminal or traffic history, particularly for similar offences
- Driving under the influence of alcohol or drugs at the time of the incident
- Excessive speed, even if not sufficient to establish a dangerous driving charge
- Erratic, aggressive, or competitive driving behaviour
- The extent and severity of injuries caused
- The number of people placed at risk
- Evidence of fatigue or sleep deprivation
- Attempting to escape police pursuit
- Failing to stop and render assistance after the incident
- The length of the journey during which others were exposed to risk
Courts assess the overall moral culpability of the driver in light of these and other relevant circumstances when arriving at an appropriate sentence.
Defences for Negligent Driving in NSW
Several defences may be available to you depending on the circumstances surrounding the offence. Seeking legal assistance and representation from traffic law experts is crucial for individuals facing negligent driving charges, as they can provide guidance on the best course of action, whether to contest the charge or negotiate a plea. Our experienced criminal lawyers at Hamilton Janke Lawyers can advise you on which defences may apply to your situation.
Necessity
The defence of necessity may be raised where the accused can demonstrate that their actions were reasonable and justifiable given the circumstances. To establish necessity, the accused must show that they honestly and reasonably believed they were in a situation of immediate peril, and that they acted to avoid irreversible harm to themselves or another person, for example, driving someone to the hospital in a medical emergency.
Duress
Duress may be available where the accused was compelled to drive in the relevant manner because of threats of serious harm directed at themselves or another person. The threat must be sufficiently serious, immediate, and leave no reasonable alternative.
Reasonable and Honest Mistake of Fact
This defence applies where the accused genuinely and reasonably believed in a set of facts which, if true, would mean no offence was committed. For example, a driver who genuinely believed they were responding to an emergency and acted accordingly may be able to rely on this defence in appropriate circumstances.
Medical Emergency
A sudden and unforeseeable medical episode, such as a seizure, cardiac event, or loss of consciousness, may constitute a defence where the driver had no prior warning that such an event was likely. However, if the driver was aware of a medical condition that could affect their capacity to drive, this defence may not be available.
The Driving Was Not Negligent
The prosecution bears the burden of proving beyond a reasonable doubt that the driving fell below the standard of an ordinary, prudent driver. If the evidence does not establish that the driving was negligent, for instance, where the accident was caused by the actions of another party, a mechanical failure, or an unavoidable road hazard, then the charge may not be made out.
Section 10 Dismissal and Conditional Release Orders
Even where a person is found guilty of negligent driving, the court may, in appropriate circumstances, deal with the matter without recording a conviction in accordance with section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Under section 10(1), the court may make one of the following orders without proceeding to conviction:
Section 10(1)(a) — Dismissal: The court may dimiss the charge outright after finding the offence proven. No conviction is recorded, and no further penalty is imposed. This is the most lenient sentencing outcome available and allows the offender to avoid the consequences ordinarily associated with a criminal conviction.
Section 10(1)(b) — Conditional Release Order (CRO): The court may discharge the offender on a Conditional Release order (CRO) without recording a conviction. A CRO requires the offender to comply with certain conditions for a specified period of up to two years. Every CRO contains a mandatory condition that the offender must not commit any further offences during its term, and additional conditions may be imposed where appropriate. If the offender breached the conditions of the CRO, the court may revoke the order and re-sentence the offender for the original offence.
Section 10(1)(c) — Intervention Program Order: The Court may discharge the offender without recording a conviction on the condition that they enter into and complete an approved intervention program. This option is available where the court is satisfied that participation in the program is likely to reduce the risk of further offending by promoting the offender’s treatment or rehabilitation. Intervention programs are most commonly used in matters involving underlying behavioural, drug, alcohol, or traffic-related issues, and may include compliance with any intervention plan arising from the program.
When deciding whether to grant a section 10 order, the court must consider the factors set out in section 10(3) of the Act, including the offender’s character, antecedents, age, health and mental condition, whether the offence was trivial in nature, any extenuating circumstances surrounding the offending, and any other matter the court considers relevant.
A section 10 order can be particularly beneficial for first-time offenders and those who can demonstrate that the offending was out of character, as it enables the matter to be finalised without a criminal conviction being recorded. However, such orders are entirely discretionary and will only be granted where the court considers it appropriate in all of the circumstances.
Pleading Guilty or Not Guilty to Negligent Driving
Pleading Not Guilty
A person who disputes the charge may elect to defend the matter. In those circumstances, the case will proceed to a defended hearing before a Judge in the Local Court. The prosecution must establish each element of the offence beyond a reasonable doubt. If the prosecution cannot do so, the charge must be dismissed.
Proceeding to a defended hearing involves more preparation and cost than a guilty plea, and the timeline may extend to several months depending on court schedules and the complexity of the matter.
Pleading Guilty
A person who accepts responsibility for the offence may plead guilty. An early guilty plea may be taken into account by the court as a sign of remorse and may result in a reduced sentence. Even after pleading guilty, the court retains full discretion over the penalty imposed, including the possibility of a section 10 dismissal or a conditional release order.
Legal representation at sentencing can be critical. A lawyer can present written submissions highlighting your personal circumstances, character references, completion of a Traffic Offender Intervention Program, and any hardship that would flow from a conviction or disqualification.
What to Do If Charged With Negligent Driving
Negligent driving sits at the lower end of the traffic offence scale, but the consequences are real, ranging from demerit points and a fine to imprisonment and a lengthy licence disqualification where death or grievous bodily harm results. What happens in your case is rarely fixed. The charge, the penalty, and whether a conviction is recorded all turn on the specific circumstances and on how well your matter is presented to the court.
If you have been charged with negligent driving in NSW, speak with our experienced traffic lawyers at Hamilton Janke Lawyers for a clear assessment of your options and the best possible outcome. Contact our team today.
