Citation: R v Fong [2020] NSWDC 214
Court: District Court of New South Wales
Date: 15 May 2020
Judge(s): Abadee DCJ
Background
The appellant was reversing his Ford Falcon ute out from beside a petrol bowser at a 7-Eleven service station at Toukley on 19 November 2018. As he reversed, he struck a pedestrian, Mrs Horsey, who had been standing behind the vehicle for approximately 30 seconds after returning from the shop. The impact caused very serious injuries to her legs, with her left leg trapped under the vehicle for a period of time.
The appellant was convicted in the Wyong Local Court of negligent driving occasioning grievous bodily harm under s 117(1)(b) of the Road Transport Act 2013 (NSW). He appealed to the District Court on all grounds, contesting both the conviction and the sentence.
The central dispute on appeal was whether the appellant's driving fell below the standard of care expected of an ordinary prudent driver. It was not disputed that the injuries amounted to grievous bodily harm, nor that the appellant's conduct caused those injuries.
Legal Issues
- What standard of negligence applies to the offence of negligent driving occasioning grievous bodily harm under s 117(1)(b) of the Road Transport Act 2013 (NSW)?
- Did the appellant depart from the standard of care expected of an ordinary prudent driver in the circumstances of reversing at a busy petrol station?
- Was the causal connection between the appellant's driving and the victim's grievous bodily harm established?
Decision
Abadee DCJ confirmed that negligent driving under s 117(1)(b) requires proof of a departure from the standard of care expected of an ordinary prudent driver, assessed against the mandatory considerations in s 117(3), including the nature and condition of the road and the amount of traffic (which expressly includes pedestrian traffic). The standard is lower than the negligence required under s 54 of the Crimes Act 1900 (NSW), which equates to the manslaughter threshold of showing such disregard for life and safety as to amount to a crime.
On causation, his Honour was satisfied beyond reasonable doubt that Mrs Horsey would not have suffered grievous bodily harm but for the appellant's negligence. It did not matter that she may have been particularly susceptible to serious injury; the appellant was required to take the victim as he found her.
The critical finding on negligence was that the appellant reversed with impaired rear visibility, in an area where pedestrians were reasonably foreseeable, without taking steps to ensure no one was within approximately a metre of his vehicle. His cameras did not provide complete rearward vision, and the evidence established that he effectively left it to chance whether a pedestrian was in that space. A reasonable motorist in those circumstances should have recognised that the limited visibility meant he could not safely assume the path was clear.
His Honour noted that an alternative approach was available: the appellant could have entered the parking bay from a different direction, eliminating the risk of reversing across an active pedestrian area. Abadee DCJ affirmed the conviction, albeit on slightly different reasoning from the Magistrate, and dismissed the appeal against conviction.
Orders Made
• The appeal against conviction is dismissed.
Key Takeaways
- The District Court confirmed that the negligence threshold for s 117(1)(b) of the Road Transport Act 2013 (NSW) is lower than the criminal negligence standard applicable under s 54 of the Crimes Act 1900 (NSW), which is equivalent to manslaughter by negligence.
- A petrol station forecourt constitutes a "road related area" for the purposes of s 117(3), meaning pedestrian traffic is a mandatory consideration when assessing whether a driver was negligent.
- Where a driver's rearward visibility is materially impaired, reversing in a location where pedestrians are reasonably foreseeable can constitute negligent driving, even without excessive speed.
- In dismissing the conviction appeal, the Court reasoned that leaving it to chance whether a pedestrian occupied the blind zone immediately behind a reversing vehicle was the operative failure, not the speed or manner of the reversal itself.
- Under the causation principles confirmed in Royall v The Queen (1991) and Swan v The Queen [2020] HCA 11, the Crown need only prove negligence was a substantial or significant cause of the harm, and a driver must take victims as found, regardless of any particular susceptibility to serious injury.
Legislation and Cases Referenced
Legislation:
- Road Transport Act 2013 (NSW), s 117
- Crimes Act 1900 (NSW), s 54
Cases:
- Swan v The Queen [2020] HCA 11
- Royall v The Queen (1991) 172 CLR 378
- Ayre v Swan [2019] NSWCA 202
- Dyason v Butterworth [2015] NSWCA 52
- DPP (NSW) v Yeo (2008) 51 MVR 157
- Derrick v Cheung (2001) 181 ALR 301
- R v D (1984) 3 NSWLR 29
- R v Bateman [1925] All ER 45