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Sleeping/sleepy (Driving when)
At wheel (did P consent?)
Accident occurred when D fell asleep at wheel. “It was claimed on behalf of … [D], who was clearly guilty of negligence, that … [P] consented to the risk of the sort of injury that he suffered and also that … [P] was guilty of contributory negligence. To accept a lift from a driver in the early hours of the morning aware that the driver has not had any sleep during the immediate preceding hours was not suggested as in itself constituting either of the defences, rather it was suggested that once the [P] was told by the [D] during the journey that the [D] was sleepy, he should have instructed the [D] to stop the car and get some sleep. Whilst this would of course have been a counsel of perfection, the fact of the matter is that the [P] had no control at all over the [D]. He was there as a guest. There is no evidence one way or the other as to whether the [P] was awake or asleep, but the evidence of the [D] that the third man was asleep in the backseat is suggestive that the [P] was awake. There is no evidence that the [D] stopped the vehicle SY0-401 at any relevant time beforehand which would have enabled the [P] to abandon the enterprise and seek to get back to Queanbeyan some other way, which would have been difficult for him at the least … [P] did not consent to the risk of being injured in the way in which the accident occurred nor was he guilty of a failure to take reasonable care for his own safety, and even if he was, I find that it made no contribution to the accident which occurred” [3]. Samoty v Rauber 17/12/87 [1987] ACTSC 82 Miles CJ
This is not an apportionment case, but it illustrates the duty of care owed by an employer (in this case the police force) when they are aware their employees are sleep-deprived. The worker’s roster was not unsafe, but the employer had direct knowledge that the worker had had insufficient sleep and hence a breach of duty was found. Dredge v SA 12/5/94 [1994] SASC 4546 Bollen J [(1994) 19 MVR 41, 62 SASR 374] not on austlii
Criminal sentencing cases
In R v Ruka 5/5/09 [2009] QCA 113 [(2009) 53 MVR 304] a 37y.o. who was overtired after the tenth consecutive day of working a 12 hour shift fell asleep at the wheel and drifted onto the wrong side of the road hitting an oncoming vehicle killing the driver. The A had no criminal history and only a few speeding offences. The COA upheld the sentence of 2 years imprisonment with parole after six months and six months licence suspension for breaching s328A. Various similar authorities were discussed.
Employees who are sleep-deprived
This is not an apportionment case, but it illustrates the duty of care owed by an employer (in this case the police force) when they are aware their employees are sleep-deprived. The worker’s roster was not unsafe, but the employer had direct knowledge that the worker had had insufficient sleep and hence a breach of duty was found. Dredge v SA 12/5/94 [1994] SASC 4546 Bollen J [(1994) 19 MVR 41,62 SASR 374]
Intoxicated driver found sleeping in car
See Rawlings v Gray 8/7/13 [2013] TASMC 29 where Magistrate Brett considered a case where an intoxicated driver (D) had been found sleeping in his car. The police knew that D had ceased driving 25 minutes earlier. The police tested him and got a reading of 0.148. D found not to have been liable to take a breath test as the “gap of 25 minutes does not have a sufficient temporal connection to the act of driving to fall within the [s8(1)] description of ‘immediately preceding’ @14.
Proof of
In Hedges v Regina 9/12/11 [2011] NSWCCA 263 [60 MVR 159] Beazley JA stated that it “is inconceivable that a vehicle could pull out from behind another vehicle and then travel 712-50 within the bounds of a marked road lane for what must have been between 150 m and approximately 300 m, at a speed exceeding slightly more than 100 km/ph, while the person was asleep” @49.
See R v Kuruvinakunnel 30/11/12 [2012] QCA 330 where the D was convicted of causing death and grievous bodily harm when he failed to follow the curve of a sweeping left bend and hit a vehicle whilst he was travelling on the wrong side of the road. New trial ordered as the jury was not properly directed on the issue of whether D was driving while asleep.
“In considering proof of ‘going to sleep’ the words of Lord Loreburn LC in Richard Evans & Co Ltd v Astley [1911] AC 674 at 678 are useful. His Lordship said:
‘It is, of course, impossible to lay down in words any scale or standard by which you can measure the degree of proof which will suffice to support a particular conclusion of fact. The [A] must prove his case. This does not mean that he must demonstrate his case. If the more probable conclusion is that for which he contends, and there is anything pointing to it, then there is evidence for a court to act upon’.” [p51].
Dredge v SA 12/5/94 [1994] SASC 4546 Bollen J [(1994) 19 MVR 41,62 SASR 374]
Whether
P’s were injured when car driven by Mr O, insured by D, veered onto incorrect side of the road into their vehicle at about 4:30 am. Mr O died from a heart attack (rupture of aorta), but it was unclear on the evidence whether the heart attack occurred before the collision or as a result of the emergency situation and subsequent collision. A probability of negligence on Mr O’s part was inferred, however, given the hour (he may have fallen asleep), and given the failure to call Mrs O who was driving with him, to give evidence. Jones v Dunkel inference drawn against D. NSW Insurance Ministerial Corporation v Jones 22/3/94 NSWCA [(1994) 19 MVR 69] not on austlii
See Cordwell v Ellis 25/6/14 [2014] TASMC 6 where D drove for 800-1000 metres on the wrong side of the road before colliding with another vehicle and killing its driver. See precis at Tasmania – Traffic Act s32(2A)