R v Lidgard [2022] NSWDC 445

Citation: R v Lidgard [2022] NSWDC 445
Court: District Court of New South Wales
Date: 30 September 2022
Judge(s): Colefax SC DCJ

Background

The accused was a long-distance truck driver diagnosed with Type 1 diabetes who, on 10 July 2020, was driving a loaded cement truck south along the Hume Highway. After stopping to refuel at a roadhouse near Glenfield, he administered six units of fast-acting insulin without checking his blood sugar levels. Within minutes of rejoining the highway, his driving became visibly erratic.

Approximately 27 kilometres south of the roadhouse, the truck left the highway at speed and entered the Frank Partridge VC rest area near Menangle. It struck several objects before colliding with parked vehicles where two families were preparing to leave. An eight-year-old girl was killed, and three adults sustained injuries of varying severity.

The accused was charged with one count of dangerous driving occasioning death and three counts of dangerous driving occasioning grievous bodily harm. The matter proceeded as a judge-alone trial across three tranches of evidence in 2022.

Legal Issues

Whether the accused's driving, in the period before his state of automatism, was dangerous within the meaning of the relevant offence
Whether the period of voluntary dangerous driving was sufficiently contemporaneous with the impacts, and was in a practical sense the cause of those impacts, as required by Jiminez v The Queen
Whether the Crown had negatived beyond reasonable doubt an honest and reasonable belief by the accused that it was safe for him to drive
Whether the injuries sustained by two of the three adult complainants amounted to grievous bodily harm
Whether the accused was in a state of automatism (acting without voluntary control) at the time of the impacts

Decision

Issue 1: Dangerous driving before the onset of automatism

The court found it was not in dispute that the accused entered a state of automatism secondary to hypoglycaemia at some point before the impacts. The principal medical expert, Professor Carter, concluded that the accused was totally unaware of what he was doing from just prior to the Narellan Road overpass through to the moment of collision (at [87]). The Crown conceded there was a point before impact at which the accused was not driving voluntarily, but argued that automatism began only around 2:59pm, just prior to the collision.

The court found that the Crown had not excluded the reasonable possibility that automatism began as early as when the truck merged onto the Hume Highway at 2:44:45pm, or at the time witnesses observed the erratic driving near the Campbelltown turnoffs (at [90]). Accordingly, the court was not satisfied that the voluntary dangerous driving was sufficiently contemporaneous with the impacts, or that it was in a practical sense the cause of the impacts, as the test in Jiminez requires (at [91]).

Issue 2: Whether the earlier voluntary driving was dangerous

Proceeding on the alternative hypothesis that the contemporaneity requirement was met, the court examined whether the voluntary driving before the onset of automatism was itself dangerous. The court found that splitting the evening insulin dose by injecting six units of fast-acting insulin at the roadhouse, without first testing blood sugar levels, was objectively dangerous in the context of the accused's hypoglycaemic unawareness (at [104]-[105]). Applying the objective test from Jiminez, this conduct subjected other road users to a real and substantial risk over and above that ordinarily associated with motor vehicle use. The Crown proved dangerous driving beyond reasonable doubt on this element (at [105]).

Issue 3: Honest and reasonable belief that it was safe to drive

The court found the Crown had not negatived beyond reasonable doubt an honest and reasonable belief that it was safe to drive (at [119]). Several factors supported this conclusion. The accused's general practitioner had assessed him as fit to drive year after year and had not informed him of his hypoglycaemic unawareness (at [10], [111], [115]). His employer's doctor similarly assessed him as fit to drive (at [112]). The licensing authority continued to issue his licence on the basis of medical reports that the court found did not meet applicable standards (at [113]). His only prior major hypoglycaemic episode had occurred more than 20 years before the incident, with no significant event for six years prior (at [114]). The court was satisfied there was a reasonable possibility his inconsistent statements to police about cannabis use reflected trauma and exhaustion rather than deliberate dishonesty (at [107]-[108]).

Issue 4: Grievous bodily harm

The court was satisfied beyond reasonable doubt that the injuries sustained by one adult complainant (multiple fractures, surgery, extended hospitalisation and rehabilitation) amounted to really serious bodily injury meeting the definition of grievous bodily harm (at [126]). However, the court was not satisfied beyond reasonable doubt that the injuries of another adult complainant (deep lacerations requiring suturing, possible rib fractures, and complaints of knee instability without objective clinical findings) met the same threshold. The court noted that, in the absence of further admissible expert evidence, the complainant's own account of his injuries was not of sufficient assistance (at [140]-[142]).

Outcome

Because the Crown had not established the element of honest and reasonable belief beyond reasonable doubt, and because the contemporaneity and causation requirements from Jiminez were not established in relation to the period of voluntary dangerous driving, the accused was found not guilty on all four counts (at [143]).

Orders Made

Not guilty on Counts 1 to 4 inclusive

Key Takeaways

Under the Jiminez test for dangerous driving offences, a period of voluntary dangerous driving preceding an impact must be sufficiently contemporaneous with the impact and must be, in a practical sense, the cause of the impact. Where the evidence leaves open a reasonable possibility that automatism began significantly earlier than the prosecution alleges, that temporal and causal link may not be established beyond reasonable doubt (at [91]).
A person's honest and reasonable belief that it is safe to drive is negated by a combination of medical, regulatory, and personal knowledge factors. Where a driver has been repeatedly assessed as fit to drive by treating and occupational doctors, licensed by the relevant authority, and was never informed of a material medical condition such as hypoglycaemic unawareness, the Crown faces a high burden in establishing the absence of that honest and reasonable belief (at [110]-[119]).
The District Court confirmed that administering fast-acting insulin without first checking blood glucose levels can, in the context of hypoglycaemic unawareness, constitute dangerous driving on an objective standard, even where the driver was not informed of that underlying condition (at [104]-[105]).
A diabetic driver who enters a state of automatism secondary to severe hypoglycaemia is not performing willed or purposeful acts and cannot be treated as voluntarily in control of the vehicle during that period. Expert evidence establishing the likely onset of automatism is therefore critical to determining whether earlier voluntary conduct meets the contemporaneity and causation requirements of the offence (at [80]-[91]).
For the purposes of the grievous bodily harm element, the District Court found that lay evidence from a complainant about perceived injuries carries limited weight in the absence of supporting expert medical evidence. Where the objective medical evidence does not clearly establish really serious bodily injury, the element will not be made out beyond reasonable doubt (at [140]-[142]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW) s165 and s191

Cases
- Jiminez v The Queen [1992] 173 CLR 572
- Toohey v R [2020] NSWCCA 166