Citation: Fleming v R [2019] NSWDC 524
Court: District Court of New South Wales
Date: 26 September 2019
Judge(s): Bourke SC DCJ
Background
The appellant driver was convicted in the Local Court of negligent driving occasioning death under s 117(1)(a) of the Road Transport Act 2013 (NSW). The incident occurred on 22 May 2018 in a council car park at Nelson Bay, when the appellant, driving a Toyota Landcruiser Prado, struck a 91-year-old pedestrian. The pedestrian suffered a broken leg and serious head injuries, and died the following day.
The appellant had entered the car park not to park, but to use it as a turning point so she could secure a street space she had spotted near her beautician's premises. She told police she heard a loud "clunk," braked immediately, and only then saw the pedestrian lying to the left of the vehicle. She denied being distracted, tired, or affected by any substance.
Physical evidence, including displacement of a front driving light and the victim's sunglasses found on the bull bar on the driver's side, indicated the impact occurred directly at the front driver's side of the vehicle. There were no eyewitnesses to the collision itself.
Legal Issues
- Whether the prosecution had established negligent driving beyond reasonable doubt in the absence of eyewitness evidence.
- Whether an inference of failure to keep a proper lookout was the only rational inference available on the evidence.
- Whether the factual circumstances were sufficiently distinguishable from the High Court's reasoning in Derrick v Cheung [2001] HCA 48.
Decision
Bourke SC DCJ confirmed the applicable standard: negligent driving requires proof beyond reasonable doubt of a departure from the standard of care of an ordinary prudent driver, assessed against all relevant circumstances. Because there were no eyewitnesses, the prosecution's case rested on inference. In a criminal matter, such an inference can only be drawn if it is the single rational inference available on the evidence.
The District Court identified several factors supporting an inference of failure to keep a proper lookout. The collision occurred in daylight, in a busy car park, at a time when significant pedestrian activity was to be expected. The point of impact, at the very front of the vehicle on the driver's side, placed the pedestrian squarely within the driver's direct field of view. The appellant also admitted she did not see the victim before the impact.
A further factor was the appellant's stated purpose in entering the car park. Because she intended merely to pass through and secure a street parking space, the court reasoned her attention was more likely directed outward toward the street than toward pedestrians within the car park. The court treated her police interview denial of distraction with caution, noting she was in shock at the time and reconstructing an otherwise unremarkable sequence of events.
The court distinguished Derrick v Cheung, where the High Court found no negligence when a toddler suddenly ran from between parked cars onto a busy road. That situation involved an unlikely and effectively unavoidable hazard. By contrast, pedestrian presence in a car park is not merely foreseeable but near-certain, and the appellant's large four-wheel-drive vehicle carried both a heightened injury risk and a somewhat restricted low-level line of sight. The District Court found the only rational inference was a failure to keep a proper lookout, confirmed guilt beyond reasonable doubt, and dismissed the appeal.
Orders Made
• The Appellant is found guilty of the offence of failing to keep a proper look out.
Key Takeaways
- A conviction for negligent driving occasioning death under s 117(1)(a) of the Road Transport Act 2013 (NSW) requires proof beyond reasonable doubt that the driver departed from the standard of care of an ordinary prudent driver, assessed against all surrounding circumstances.
- Where no eyewitnesses exist, a finding of negligence may rest on inference alone, but only where that inference is the single rational inference available on the evidence.
- The District Court held that a car park is a fundamentally different environment from an ordinary road: pedestrian presence, including children and elderly persons, is not merely probable but near-certain, placing drivers on heightened notice and requiring constant vigilance.
- A driver's purpose in entering a car park is a relevant circumstance when assessing whether a proper lookout was kept. Using a car park as a thoroughfare, with attention directed to a destination outside it, is a factor the court treated as bearing on the likelihood of distraction.
- Derrick v Cheung [2001] HCA 48 was distinguished on the basis that a sudden, unlikely pedestrian hazard on a busy road differs materially from the predictable presence of pedestrians in a shared car park environment.
Legislation and Cases Referenced
Legislation
- Road Transport Act 2013 (NSW), s 117(1)(a) (negligent driving occasioning death)
Cases
- Derrick v Cheung [2001] HCA 48