Edit: The Judicial College have updated their Charge Book since this post was written. (Thanks to Habeas Corpus for letting me know). Commentary on De Montero‘s case can be found around 7.2.9.

What’s the difference between careless and dangerous driving?

The obvious answer is the penalty. A person found guilty of careless driving may or may not lose their licence, depending on the circumstances and the magistrate they’re before. Someone found guilty of dangerous driving is off the road for a mandatory minimum six month period. Further, dangerous driving carries with it the possibility of the slammer, where careless driving doesn’t.

What’s the difference in law? There’s clearly a degree of overlap. An act that meets the classic Simpson v Peat [1952] 2 QB 24 test – falling below the standard of care that a reasonable and prudent driver would display in the same circumstances – can also meet the requirements of objective dangerousness necessary to found a charge under s 64.

Sub-section 64(3) states,

(3) If on a prosecution for an offence under this section the court is not satisfied that the defendant is guilty of that offence but is satisfied that
the defendant is guilty of an offence against section 65, the court may
convict the defendant of an offence against section 65 and punish the
defendant accordingly.

In practice, legal argument about whether a particular act constitutes careless or dangerous driving is rare. Despite the serious impact on an accused’s licence, such judgments seem to be left to a magistrate’s intuition which side of the theoretical divide it falls on.

There’s plenty of common law authority on the topic, though it rarely gets referred to. The issue comes up a fair bit in the higher courts, usually surrounding driving causing death. In The King v Coventry [1938] SASR 39, the South Australian Court of Appeal laid out some tests for dangerousness. The High Court refused to hear an appeal from their decision, publishing their reasons as R v Conventry (1938) 59 CLR 633 for reaching that conclusion. Some practitioners consider the High Court to have approved the SA Court of Appeal’s decision in Coventry, though the High Court said a number of times in the judgement that it didn’t want to explore the issues in detail. (As Elucubrator discussed last year, reasons given for refusing leave to appeal do not create binding ratio.)

The SA Court of Appeal said (and the High Court seemed to agree) that what constitutes dangerous driving, like careless driving, has objective elements, and no specific state of mind is required to be proven. From Coventry comes the principle that the standard required for dangerous driving is less than the standard required for culpable driving (that being gross negligence). It referred to the following passage from the judgment of Lord Atkin in Andrews v Director of Public Prosecutions:

I cannot think of anything worse for users of the road than the conception that no-one could be convicted of dangerous driving unless his negligence was so great that if he had caused death he must have been convicted of manslaughter.

The SA Court of Appeal continued:

But in this state, Parliament has been fit to act upon the view that, in order to discourage dangerous practices by the drivers of motor vehicles, it is necessary to hold out the threat of serious punishment, whenever death is caused by a contravention of the prohibitions against driving at a speed or in a manner which is dangerous to the public. In our view of s 14 a charge of driving recklessly or in a culpably negligent manner must no doubt be supported by evidence which satisfies the jury that the defendant was guilty of a very high degree of indifference to the risk of injury to others. The charge is said to involve mens rea – some indeterminate state of the defendant’s mind which no-one has so far been able to define … but a proper charge of driving at a speed or in a manner which is dangerous to the public the prosecution is no so much concerned with the state of the defendant’s mind as with his conduct. The essence of this charge is the objective fact – the risk of injury to others. In this form of the charge it alleges that the conduct of the defendant attained to a standard which is ‘objective impersonal and universal, fixed in relation to the safety of other users of the highway’ (McCrone v Riding [1938] 1 All ER 157.) As a matter of pure reason, we think that the difference between these two forms of offences is much more obvious in the approach than in the final result. A man can’t be held to be driving recklessly or with culpable negligence unless the manner of driving involves ‘danger to the public’ and it is difficult to see how a jury, properly directed could hold that the defendant was driving at a speed or in a manner dangerous to the public, unless the evidence justifies the inference of a fairly high degree of indifference to the safety of others …

The fact to be proved in this case was that the defendant was driving in a manner which was dangerous to the public, and if it is necessary to attempt a definition we should say that driving in a manner dangerous to the public means the act of driving in a manner which any ordinary person (in the situation of the driver) would recognise as dangerous, in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road – the common place incidents of the use of the highway in question under the conditions of modern transport by fast moving vehicles.

Later,

77 To determine whether driving was dangerous calls for the application of the objective test to all of the circumstances relevant to the manner of driving. Authority and principle dictate that the test remains an objective one which enquires whether an ordinary or reasonable person in the driver’s situation would regard the manner of driving as creating an appreciable risk to the public. For example, the speed at which a motor vehicle is driven can itself constitute a danger to the public where it greatly increases the risk of accident. That will more likely be so where it is a speed greatly in excess of that permitted by law. But driving a vehicle within the speed limit prescribed by law will not necessarily mean that a reasonable person would not regard that speed or the manner of driving as dangerous. Conversely, though members of the public generally do not anticipate that speed limits will be ignored, there may be circumstances where a reasonable person would not conclude that driving at a high rate of speed well in excess of the speed limit has created a real potential for danger.

78 Thus for driving to be in ‘a manner dangerous to the public’, it must be such that an ordinary or reasonable (if there be any difference) person in the situation of the driver would recognise it as involving an appreciable risk of serious injury or death to other users of the road; a real and potential danger which exceeds the ordinary risks of the road which may include a lack of due care and attention. It involves a serious breach of the proper management and control of the vehicle, being more than an ordinary and everyday occurrence involving a breach of the road rules or a lack of due care sufficient for a civil negligence claim. But it involves less than the gross negligence and great falling short of the standard of care which a reasonable person would have exercised in the circumstances which is required for culpable driving.

The Victorian Court of Appeal developed the point further in R v De Montero [2009] VSCA 255 when it outlined the differences between culpable driving and the newer offence of dangerous driving causing death under s 319 of the Crimes Act 1958. The Court indicated [at 24] that the same considerations were applicable whether the offence is the summary form at s 64 of the Road Safety Act 1986 or the indictable form of causing death or serious injury at s 319 Crimes Act.

The Court quoted a Department of Justice report from 1992 that suggested a jury direction in the following terms,

Clearly, it is not always easy to distinguish between driving which is so bad as to constitute manslaughter, that which is bad enough to make the accused guilty of the lesser offence of dangerous driving causing death, and that which is merely careless. However, it will help you to make up your mind if you think of a scale. At the bottom of this scale are cases of momentary carelessness – the kind of driving errors which most of us may make from time to time, when we are not concentrating as carefully as we should. At the top of this scale is driving which we would all agree is totally unacceptable. Driving of the kind required to prove manslaughter belongs near the top end of this scale – it is a gross departure from what we would expect of a careful and competent driver. Dangerous driving is driving which falls more towards the middle of the scale. It is driving which we would all agree is unacceptable and deserves to be punished, but it is not so bad as to warrant that person being convicted for manslaughter. On the other hand, it involves considerably more than just a momentary, perhaps excusable, mistake or error of judgment.

Discussion followed about Coventry, McBride and Jiminez v The Queen. The Court summarised what a jury should be told [at 80]:

It must be made clear to the jury, in appropriate language, that before the jury can convict of dangerous driving, it must be satisfied:

1. That the accused was driving in a manner that involved a serious breach of the proper management or control of his vehicle on the roadway such as to merit criminal punishment. It must involve conduct more blameworthy than a mere lack of reasonable care that could render a driver liable to damages in civil law.

2. That the breach must be so serious as to be in reality, and not just speculatively, potentially dangerous to others who, as members of the public, may at the time be upon or in the vicinity of the roadway. (A momentary lack of attention would not be sufficient, of itself, to constitute such driving.)

3. That the manner of driving created a considerable risk of serious injury or death to members of the public.

4. That the risk so created significantly exceeded that which is ordinarily associated with being on or near a highway.(We have replaced the phrase ‘real and appreciable’ which appears in some cases with the word ‘considerable’ which we think will be more readily understood by the jury. The word ‘real’ adds nothing if the risk is considerable.)

5. That in determining whether the manner of driving was ‘dangerous’ the test is an objective one. Would a reasonable driver (We have used the ‘reasonable person’ rather than ‘ordinary person’ because it is employed in the case of culpable driving: R v De’Zilwa [2002] VSCA 158. But we see no difference of substance between the two concepts.) in the circumstances of the accused have realised that the manner of driving involved a breach of the kind discussed in paragraphs 1 and 2, and also gave rise to the risk identified in paragraphs 3 and 4.