I recently came across an interesting case, Savieti v Police [2021] NZCA 176, about a man charged with careless driving causing injury, which went all the way from the district court to the high court and finally the court of appeal.

Savieti fell asleep while driving home from work and crashed into the driver of another vehicle, injuring the driver. During his stay in hospital after the accident, Savieti was diagnosed as suffering from a severe case of obstructive sleep apnoea (OSA), which he did not know about until the diagnosis.

This month, I will talk about what must be proven to find someone guilty of careless driving and the decision of the court of appeal, which ultimately overturned Savieti’s conviction.

The law

A person drives carelessly if they do not drive with the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances. This is an objective test, but “in the circumstances” includes the circumstances of the driver. This means that when a person has an accident because of an illness or condition, whether the person was careless depends on whether they reasonably ought to have driven given what they knew or ought to have known about their illness or condition.

To illustrate the approach the courts have taken to these kinds of cases, here are some examples:

Robinson v Glover [1952] NZLR 669 (SC). This case involved a driver who caused an accident when he fainted. After the accident, it was determined that he was suffering from an infection. In the three days before the accident, he had felt unwell but had not fainted and had never fainted before.

The high court quashed the conviction, with the judge saying that he would have some difficulty conceiving that a reasonably prudent man would have anticipated the possibility of fainting and the accident was solely due to a sudden and unexpected condition that the driver did not anticipate and that neither he nor any reasonable prudent man would in the circumstances, have anticipated.

Police v Vialle [1989] 1 NZLR 521 (CA). A territorial army corporal was engaged in driving exercises. The corporal had had limited sleep when he was ordered by his superior to take over from another driver who had become too sleepy to continue. The corporal said that when he was given the order, he “felt fine” and “able to drive” and did not at any stage feel incapable of driving before he fell asleep and crashed the vehicle.

The court of appeal upheld the high court’s decision quashing the conviction, saying that the evidence of the driver was accepted as truthful and shows that he was alive to the risk of drowsiness on the part of the drivers in the convoy, but at all times thought himself fit to drive and he was not found to have been unreasonable in having that belief.

The first question

Savieti was granted leave to bring a second appeal against conviction to the court of appeal after being convicted in the district court and having his first appeal in the high court dismissed. He contended that he was not careless because he was tired as was normal when he drove home, but not sleepy.

The court considered that the first question to ask was whether it was reasonably possible that Savieti did not recognise that he was sleepy when he was driving. They answered this question in the affirmative. It was reasonably possible that he put his feelings of fatigue down to physical tiredness from work rather than a feeling of sleepiness that would make him prone to dozing off while driving. During his 20 years as an employee and the past three years as a store supervisor at Auckland Hospital, Savieti was unaware of having any microsleep episodes at work and had never fallen asleep when driving home. As he did on the day of the accident, he often worked past 2.30pm and did not always take an afternoon nap, although this was usually what he did after work.

There was no credibility finding against Savieti’s evidence. It was supported by the absence of any reference to sleepiness in his GP’s records. It was also supported by the evidence of Dr Andrew Veale, who is a specialist respiratory and sleep physician. Dr Veale said there was a continuum of those who were completely asymptomatic through to those with marked daytime sleepiness. He said that whether a person with severe OSA would have a warning before nodding off when driving depended very much on prior experience. Given that the car crash from falling asleep was Savieti’s first identifiable symptom of OSA, Savieti did not have any prior experience to rely on.

The second question

The second question was whether a reasonable person in Savieti’s position would have recognised that he was sleepy and at risk of falling asleep while driving. The court considered that this had not been established. Dr Veale’s evidence was that given the variability of how people with OSA feel, he had no way of judging whether Savieti would have been aware that he was sleepy.

Dr Veale thought it was likely that Savieti was sleepy in the lead-up to the crash, but forewarning implied you would know the consequence of the way you felt. While Dr Veale would have recognised the way Savieti was feeling to be sleepiness, he did not say that Savieti ought to have recognised it. Dr Veale also considered it would not be surprising if Savieti had experienced a sudden onset of sleep and said that the transition from feeling asleep to being asleep could be instantaneous.

There was also further evidence adduced at the hearing from other experts who supported Dr Veale’s evidence that a person with sleep apnoea might be sleepy but not recognise that they were, because one of the consequences was that it was normal for the person to feel tired so they no longer regarded themselves as tired. Given that the evidence did not establish beyond a reasonable doubt that Savieti was careless in driving on the afternoon of the accident, the appeal was allowed.

Please note that this article is not a substitute for legal advice and if you have a particular matter that needs to be addressed, you should consult with a lawyer. Danielle Beston is a barrister who specialises in transport law and she can be contacted on (09) 379 7658 or 021 326 642.