R v Panasiuk No. DCCRM-02-1226

[2003] SADC 90

R v JAMES STEPHEN PANASIUK
[2003] SADC 90

Judge Allan
Criminal

The accused is charged with one count of causing bodily harm by dangerous driving. Particulars of the offence alleged against him are that on 25 February 2002, at Reynella, he drove a motor vehicle in a manner which was dangerous to the public and thereby caused grievous bodily harm to Elizabeth Joy Field.

There are three elements of the offence of causing grievous bodily harm by driving in a manner dangerous to the public and they are these:

First, that the accused was the driver of the motor vehicle; secondly, that the motor vehicle was being driven in a manner which was dangerous to the public; thirdly, that by driving in that manner, the accused caused grievous bodily harm to the alleged victim.

There is no dispute in this case that the accused was the driver of the motor vehicle in question and there is no dispute that Elizabeth Joy Field, the person named in the information, suffered grievous bodily harm.

The law draws a distinction between driving in a manner dangerous to the public on the one hand and driving without due care and attention on the other. Driving a car on a public road requires an obligation to use a very high level of care and concentration.  Realising that, the law provides for a descending scale of offences. The least serious of these is driving without due care and attention. This offence covers any material departure from the standard of care expected of all motorists. It is the bottom of the scale of seriousness because the law recognises that none of us is perfect and any of us may sometimes fail to devote to our driving the care and attention that the law requires. Because people are not perfect, they have to accept the risk that when they use a public road, whether as a driver, passenger or pedestrian, they may well meet someone else who is not driving with due care and attention. The law recognises that a risk of this kind is something that people just have to accept as one of the ordinary incidents of modern life.

On the other hand, there are some people who, at times, impose on other users of the road a risk which people do not have to accept as one of the ordinary incidents of modern life. They drive in a manner which imposes upon other road users of the road a risk which any reasonable person would recognise as a real danger to the public; that is what this information means when it charges the accused with driving in a manner dangerous to the public. It refers to the sort of risk which is, in no sense, an ordinary or necessary risk of the road and to a manner of driving which is treated as a fairly serious crime.

I am satisfied about the following facts beyond reasonable doubt.

On 25 February last year, shortly after 3 pm, the accused was driving a Sigma sedan motor car in an easterly direction along Sherriffs Road, Reynella. It was a fine, sunny day and the surface of the roadway was dry.

Sherriffs Road is divided into two carriageways; one for east bound traffic and one for west bound traffic. The carriageways were separated by a median strip and were each bound on either side by raised kerbs.

The east bound carriageway consisted of two lanes divided by a broken white line. On the northern side of the carriageway was a parking lane which was separated from the two traffic lanes by a solid white line. The parking lane was 2.33 metres wide, the northern-most lane 3.47 metres wide and the other lane 3.33 metres wide.

The accused’s car collided with Elizabeth Joy Field at a pedestrian crossing on the road. The pedestrian crossing was controlled by a pedestrian and vehicle activated signals. There were three traffic signal posts erected at the crossing; one on the southern side of the carriageway and two on the northern edge. The three traffic lights were clearly visible to east bound traffic on Sherriffs Road.

Upon activation by a pedestrian, traffic lights changed to amber and then to red signalling vehicles to stop and allowing pedestrians to cross the carriageway indicated by a green ‘Walk’ prompt. The signals were all in working order. The duration of the amber light was approximately four seconds. The ‘Walk’ prompt appeared one second after the red light disappeared.

As the accused’s vehicle approached the pedestrian crossing, it was travelling in the left or northern most lane. It was travelling at a speed of about 60 kilometres per hour. The speed limit in the area of the crossing was 60 kilometres per hour.

Elizabeth Field was crossing the northern carriageway of Sherriffs Road from north to south. She was walking within the lines marked on the roadway for that purpose. She commenced to cross after the lights applicable to her turned green. The accused’s car collided with her when the lights applicable to his car were red. The point of impact was within the lines marked on the roadway for the pedestrians to cross within and within the northern-most lane of the carriageway.

There was at least one car stationary at the crossing in the southern-most lane immediately before the impact. There were other vehicles travelling in the same direction as the accused.

I am satisfied that the accused was, at the relevant time, driving without due care. He departed from the standard of care expected of all motorists. He should have seen the lights which were showing red for him. If he had been keeping a proper lookout, he would have seen them and been able to comply with them. In evidence, he was unable to say why he did not see the lights were red. He said he did not see the lights at all. He said he had been looking at his speedo as he went along the road.

I think, in offering that evidence, he was searching for a reason as to why he did not see the crossing, although I accept his evidence that, as he moved along the road, he did from time to time check his speedo. It is possible that, for the same reason, he said there was a glare from the sun on the road which affected his vision. After the impact, he spoke to witnesses about the lights being amber. I accept his evidence that he was seeking reassurance about how the impact might have occurred. I accept his evidence that he did not see the amber light.

Whether the facts, as I have found them to exist, means that the accused was guilty of driving in a manner dangerous to the public is another matter. Mr Pearce, for the prosecution, submits that the accused’s lookout, in all the circumstances, was so defective as to be a gross departure from the standards required and, therefore, dangerous within the meaning of the section pursuant to which the accused has been charged. It is a matter of judgment.

There is no suggestion of excessive speed, erratic driving or consumption of alcohol. As I have said, the accused failed to comply with the traffic lights applicable to him because, for whatever reason, he failed to keep a proper lookout and the consequences of that failure were serious. But, at the end of the day, on the facts as I find them to exist, I am not satisfied beyond reasonable doubt that he drove in a manner dangerous to the public.

Accordingly, so far as the charge of causing bodily harm by dangerous driving is concerned, I find the accused not guilty. I find him guilty of driving without due care.