Savieti v Police
[2021] NZCA 176
•12 May 2021 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA240/2019 [2021] NZCA 176 |
| BETWEEN | DAVID SAVIETI |
| AND | NEW ZEALAND POLICE |
| Hearing: | 22 February 2021 |
Court: | Courtney, Mallon and Wylie JJ |
Counsel: | P K Hamlin and M Pitch for Appellant |
Judgment: | 12 May 2021 at 11.30 am |
JUDGMENT OF THE COURT
AThe application to adduce further evidence is granted.
BThe appeal is allowed.
C Mr Savieti’s conviction for careless driving causing injury is set aside.
____________________________________________________________________
REASONS OF THE COURT
(Given by Mallon J)
Introduction
David Savieti fell asleep while driving home from work. He crashed his car into another car, injuring both himself and a woman in the other car and causing damage to both cars. During his stay in hospital following the accident, he was diagnosed as suffering from obstructive sleep apnoea (OSA), a medical condition which causes poor quality sleep and can lead to excessive daytime sleepiness. He did not know he had this condition until this diagnosis.
Mr Savieti was charged with careless driving causing injury.[1] Following a defended hearing in the District Court at Auckland before Judge Henwood, he was convicted and sentenced to 80 hours’ community work and reparation of $665.50.[2] The District Court found that Mr Savieti was careless because, even though he did not know he had OSA, he was driving when he would normally be having an afternoon nap and he should have had a nap before deciding to drive.[3] An appeal against conviction and sentence was dismissed by Lang J in the High Court.[4]
[1]Land Transport Act 1998, ss 8 and 38.
[2]Police v Savieti [2018] NZDC 18395 [Conviction decision]; and Police v Savieti [2018] NZDC 27284 [Sentencing decision]. There was no challenge to the reparation order either in the High Court or this Court.
[3]Conviction decision, above n 2, at [20].
[4]Savieti v Police [2019] NZHC 905 [High Court decision].
Mr Savieti was granted leave to bring a second appeal against conviction to this Court.[5] He contends that he was not careless because he was tired, as was normal when he drove home, but not sleepy. He also seeks leave to adduce further expert evidence about OSA. The respondent also seeks leave to adduce expert evidence in reply.
The District Court
The evidence
[5]Savieti v Police [2019] NZCA 421 [Leave decision]. Mr Savieti’s application for leave to bring a second appeal against sentence was declined.
The prosecution evidence established that the accident occurred when Mr Savieti’s vehicle, travelling in the southbound lane on May Road, Mount Roskill, veered to the right, crossing the centreline and into the path of a vehicle in the northbound lane.
Mr Savieti was taken to hospital. He suffered a cardiac arrest when he was given pain relief for injuries suffered in the crash. He was resuscitated and placed in the critical care ward for treatment and care. While in that care, it became apparent that he had severe OSA, which had not been diagnosed previously. He received treatment for this and his injuries from the crash and was discharged a week later.
As part of his care in hospital, he completed the Epworth Sleepiness Score (ESS), which is a recognised self-appraisal questionnaire to assess sleepiness. Mr Savieti scored nine out of 24 on this questionnaire. The questions included how likely he was to doze off or fall asleep when undertaking various tasks. He assessed his chance of dozing as “never” when sitting and talking to someone, sitting quietly after lunch and when stopped in a car for a few minutes in traffic. He assessed his chance of dozing while lying down in the afternoon when circumstances permit as “high”. Another set of questions asked how tired he usually felt. He answered that he was “sometimes” bothered by fatigue, tired very quickly and felt mentally exhausted. He answered that he “regularly” felt physically exhausted.
Mr Savieti gave evidence in his defence. At the time of the accident he was driving home from his work as a stores supervisor at Auckland Hospital. He had been employed in that position for about three years and had worked at the hospital for nearly 20 years. In his work, he supervised five staff and his responsibilities included checking and putting away food for the hospital, ordering and rotating stock and talking to supervisors. The job involved two to three hours of quite physical heavy lifting but also some administrative tasks.
Mr Savieti’s work hours were from 6 am until 2.30 pm, but on the day of the accident he had worked until 3 or 3.30 pm. He had gotten up at about 4.30 to 5 am (he gets up early to find a park near the hospital) and had left the hospital to drive home at around 4 pm. He remembered driving home along Sandringham Road, turning onto Stoddard Road and then turning onto May Road (this was about 20 minutes into his drive home). After that he could not remember anything until he woke up with a really sore chest and his face against the dashboard, and hearing people screaming and yelling.
Mr Savieti confirmed that he was diagnosed with OSA when in hospital. He was put on a machine that helps him to breathe when he is sleeping. He no longer feels fatigued like he used to. Before the accident and this diagnosis, he used to put the fatigue down to his physical work at the hospital.
Mr Savieti was cross-examined about whether he had worked a particularly long day on the day of the accident. He said that it was not unusual for him to work past 2.30pm. He said it was just a normal day at work, but he “worked a little bit longer” than he usually did. He had stayed on to help cook or clean as “we were short that day … we’re always short”. It was put to him that, because it was a particularly long day at work, he must have been more tired than usual. Mr Savieti said “it’s just a normal day, just a little bit longer, just a normal longer day”. In re-examination he explained that he worked past 2.30 pm “[n]early every day, just because of our staff shortages”. In answer to follow-up questions from the Court, he said he often worked “11 to 12 hours” and at the hospital “everyone works 12 hours, 14 hours … the nurses do more, the doctors and, yeah”.
Mr Savieti was asked further questions about how he felt on the drive home. He said he was always tired when he finished work so he would probably have been tired on the day of the accident. When driving home, he would turn his music up and put the windows down to refresh himself after working. He usually felt alright driving home. When he left work that day he “just felt normal … just the normal tiredness … not really mentally tired … just normal”.
He was asked if he was feeling drowsy. He said he was not, and if he had been feeling drowsy he would not have driven. He explained:
A.I always feel tired after work, just tired ‘cos it’s like a lot of physical stuff I do, like, you’re just, like, physical tired and then there’s brain tired, you know, like, I’d know if I was brain tired, I wouldn’t have driven my car.
He was cross-examined about this further:
Q.So it’s possible then that you don’t remember feeling drowsy, you don’t remember the feeling of falling asleep prior to, because you lost that memory?
A.No, I know when I’m drowsy, like, I think just before that time I did a course and I was in a class, and the first class the teacher started talking [and I] just got drowsy straight away, like, he opened his mouth, and I know that feeling’s different from, like, being physically tired like where you can just keep going …
Mr Savieti further explained that to him his “sleep felt normal”. He confirmed he had never had any previous incident of falling asleep without forewarning and that he knew when he was about to fall asleep because it was a gradual onset. He said that after work he usually had a “light nap” at home and then he “just muck[ed] around after that”. He was asked if he got ready to go to sleep as soon as he got home to recover from his tiredness from the day. He said that he did not sleep every day when he got home, though he normally did. The cross-examination continued:
Q.So isn’t it fair then that on your drive home you’re mentally expecting to take a nap in about 10 minutes?
A. No.
Q. Because you’re sleepy?
A. I’m never sleepy when I drive.
…
A.I’ve been driving for, like, since I was 13 and I’ve never, ever fallen asleep, I’ve never felt like sleeping when I was driving.
It was put to Mr Savieti that he may have felt sleepy before the accident and just failed to recall it. He said if he was feeling sleepy he thought he would have felt sleepy earlier (that is, before turning onto May Road, which was his last recollection before waking up after the crash). He was asked again if he was feeling sleepy earlier and he replied “[n]o, I already told you no”. He was asked again if, on the day leading up to the accident, he was drowsy and did not recall it. He said he would have recalled it earlier on the drive, noting that the time from turning onto May Road to the crash was 20 seconds.
The defence called expert evidence from Dr Andrew Veale. He is a specialist respiratory and sleep physician with specific training in sleep disorders. Dr Veale read his report as his evidence-in-chief. Amongst other things, this report recounted what Mr Savieti had told him, including that:
(a)Mr Savieti finishes work at 2.30 to 3 pm and on the day of the accident had finished slightly later than usual at 3.15pm. He sleeps for two to three hours when he gets home, then he potters about until he goes to bed at between 11 pm and midnight (so that he gets a total sleep time of seven to eight hours in two blocks).
(b)After the accident, workmates commented that he seemed to nod off at the computer at work on some occasions but this had not been reported to him previously.
(c)He has always driven with the window down due to a claustrophobic feeling (Mr Savieti is a large man and clinically obese). He always plays loud music out of habit. He does not do either of these things because of sleepiness when driving. He has never had momentary lapses when driving.
Dr Veale advised that he had reviewed Mr Savieti’s GP’s records and there was no reference to tiredness or sleeping issues in those records. Dr Veale considered the car crash from falling asleep to be Mr Savieti’s “first identifiable symptom” of OSA.
Dr Veale explained that Mr Savieti stops breathing or partially stops breathing when sleeping 114 times per hour, meaning his OSA was “very severe”. He said that Mr Savieti would not be aware of these “events” (that is, his breathing stopping). He was asked how this disorder may have manifested itself in Mr Savieti’s day-to-day life. He said:
A.It can range in a complete continuum from completely asymptomatic, no symptoms at all, right through to people with marked daytime sleepiness at times of low stimulation, right through to people who nod off repeatedly while driving or in the midst of conversation.
He was asked if, in a severe case, a person would have any warning before nodding off when driving. Dr Veale said:
A.It depends very much on prior experience. If I can use an example … if you’re in a lecture room in an afternoon, you can be aware of being sleepy and then suddenly jerk awake. The next time that happens you’re aware that that feeling of sleepiness is likely to be followed by an episode of sleep so that you move around or get up and walk around, but the first time [it] comes out of the blue, even though you recognise prior tiredness. So the transition from wakefulness to feeling sleepy is generally a slow process, but from feeling sleepy to asleep can happen instantaneously.
Dr Veale reiterated in answer to questions that the transition from sleepiness to asleep can be “very fast”. He has seen drivers who had crashed their car from falling asleep when they are 200 m from their home and can see their driveway. Dr Veale was questioned whether this would be the case for people with the most extreme form of OSA. Dr Veale said that “[b]y far the majority of sleepy drivers don’t have sleep apnoea and the bulk of patients with OSA don’t get sleepiness” and “it’s the recognition of the signs of an impending sleep which is the critical thing about whether you pull over or whether you continue to drive”.
Dr Veale was referred to Mr Savieti’s evidence that he had never nodded off while driving prior to this incident. Dr Veale said he had “no way to confirm or refute that statement”. He said it would not be surprising to him if someone, who had never previously had any “microsleeps” or nodded off while driving, were to experience a sudden onset of sleep while driving. He said he would expect someone in Mr Savieti’s case to be able to instantly fall asleep behind the wheel.
Dr Veale was pressed further on this:
Q.… So would it be fair to say that it is your conclusion that prior to driving he would have been sleepy and he would have been aware of his sleepiness?
A.He wasn’t by his own account, I have no way of judging given the variability of how people feel with obstructive sleep apnoea of any severity.
Q.But it is possible that people feel tired, people feel increasingly sleepy?
A.Yes, that’s the second most common reason that patients present for care and attention.
Q. And then … fall asleep, or have a microsleep behind the [wheel]?
A.Many do but not always. People sometimes just present because they feel tired and they’re underperforming.
…
Q.So just going back to Mr Savieti’s case again, then wouldn’t it be fair to conclude that it is likely that Mr Savieti while driving on that afternoon would have felt sleepiness because he’s not stimulated, not engaged, not particularly motivated and having finished a long day’s work causing physical tiredness?
A.Whether it’s likely or may have occurred are different statements. … I can’t answer the question of likelihood leading up to the crash.
…
Q.So … it would be an unusual case wouldn’t it if someone was to fall asleep without any forewarning?
A.Most people would get some forewarning, whether they understood that sleep was going to follow those signals or not depends on historical context.
Dr Veale was asked about Mr Savieti’s ESS score. Dr Veale said that a person who scored a 9 would not be referred to a public sleep service because his priority would be graded so low. He said the problem with the ESS is that there may be three reasons for a low score — (1) the person is not sleepy; (2) the person does not perceive him or herself to be sleepy; and (3) the person is lying — and “we see all three of those”.
Dr Veale was questioned further about whether Mr Savieti would have felt sleepy and would have known that. He said:
I think that he would have felt sleepy in the lead-up to the crash, forewarning implies that you know the consequences of the way you feel. I frankly feel that in this case, but not in many others that I have looked after, this has been a very unfortunate first presentation of a recognisable symptom and sign of this very serious condition.
…
He clearly was sleepy because of this blank period … when driving down Stoddard Road. Now, he may not have recognised that as sleepiness but I would have had I heard it as part of a consultation. I think he would have felt tired, I am not certain that he would have known the consequence of that feeling.
Decision
The District Court Judge who heard the evidence said the key question for her was whether Mr Savieti was driving carelessly. In finding that he was, the Judge summarised her reasons as follows:[6]
[20] … However, the defendant was clearly tired having done a longer shift and been awake for nearly 11 hours and he made the conscious decision to drive at a time knowing he had not had his usual daily nap. Had he been acting prudently he would have had a sleep at work before heading off in his car to drive home. The Defendant is guilty of driving his vehicle when he was tired and knowing that he was driving a time when he would normally be sleeping. … He did not take a nap at his work place before commencing to drive thereby not being a reasonable and prudent driver.
[6]Conviction decision, above n 2.
In reaching this conclusion, the Judge did not refer to Mr Savieti’s evidence that he was not mentally preparing to take a nap. Nor did she discuss whether she accepted Mr Savieti’s evidence that he felt physically tired, but not sleepy, when he was driving home, nor what she made of Dr Veale’s evidence that a person with severe OSA may not recognise that they are sleepy and that the transition from sleepiness to asleep can be instantaneous.
High Court
In the High Court on appeal, the Judge considered that Mr Savieti’s OSA did not equate to an illness that suddenly caused Mr Savieti to lose consciousness after he had begun driving. Rather, his OSA was a factor that contributed to his state of fatigue that he must have been experiencing when he elected to drive home from work.[7]
[7]High Court decision, above n 4, at [28].
The Judge said that Mr Savieti was inevitably tired by the end of each day. This was because of his OSA (which meant he did not wake up refreshed each morning and became progressively more tired during the day), and because of his work (rising early and carrying out two to three hours of heavy manual labour followed by administrative or clerical work). It was confirmed by Mr Savieti’s evidence that he drove home with the windows down and the music up to refresh himself and that he usually had two to three hours sleep when he arrived home.[8]
[8]At [29]–[31].
The Judge concluded:
[32] I therefore consider it likely that Mr Savieti was regularly driving home from work in a state of fatigue that left him at risk of falling asleep at the wheel. Mr Savieti might not have recognised that he faced this risk, but the warning signs must have been there. The fact that he was obliged on occasions to take active measures to combat his tiredness whilst driving is testament to that fact.
[33] It is possible, as the Judge found, that Mr Savieti’s later than usual departure from work on the day of the collision also played a significant part in the events that followed. By about 4 pm Mr Savieti would usually be at home asleep, and his body may have come to anticipate or depend on that period of rest. Whatever the immediate cause or causes of his sleepiness may have been, I consider the warning signs would have been there for Mr Savieti if he had been prepared to recognise them. I therefore do not consider that this is a case where a sudden illness or unforeseen event has rendered Mr Savieti unconscious at the wheel of his vehicle. Rather, he ignored signs that he was becoming sleepy and continued to drive when a prudent and reasonable motorist would have pulled off the road to rest.
For these reasons, the Judge held that Mr Savieti was guilty of driving carelessly and thereby causing injury. He dismissed the appeal.
The Judge’s reasoning therefore accepted that Mr Savieti might not have recognised that he was tired. The Judge considered Mr Savieti was careless because a reasonable person in his position would have recognised that he was tired. In reaching this conclusion the Judge did not discuss why he formed this view, despite Dr Veale’s evidence that it was not known whether Mr Savieti would have recognised what he felt (physical tiredness from work) as sleepiness. Nor did he discuss the significance of Dr Veale’s evidence that recognition depended on historical context and that, in Mr Savieti’s case, the accident was the first recognisable symptom.
Assessment
The law
A person drives carelessly if they do not drive with the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances.[9] This is an objective test, but “in the circumstances” includes the circumstances of the driver. As the case law has held, this means that when a person has an accident because of an illness or condition, whether the person was careless will depend on whether they reasonably ought to have driven given what they knew or ought to have known about their illness or condition.
[9]Simpson v Peat [1952] 2 QB 24 at 27–28; followed in Police v Chappell [1974] 1 NZLR 225 at 228.
For example:
(a)Robinson v Glover:[10] This case involved a driver who caused an accident when he fainted. After the accident it was determined that he was suffering from an infection. In the three days before the accident, he had felt unwell but had not fainted and had never before in his life fainted. The High Court quashed the conviction, with the Judge saying:[11]
[10]Robinson v Glover [1952] NZLR 669 (SC).
[11]At 672.
… I have some difficulty in conceiving that a reasonably prudent man would, or that the appellant should, have anticipated the possibility of his fainting. …
… [The accident] was solely due to a sudden and unexpected condition which the appellant did not anticipate and which neither he nor (as I think) any reasonable prudent man would, in the circumstances, have anticipated.
(b)Police v Vialle:[12] This case involved a territorial army corporal engaged in driving exercises. The corporal had had limited sleep at the time he was ordered by his superior, a staff sergeant, to take over from another driver who had become too sleepy to continue. The corporal said that when he was given the order he “felt fine” and “able to drive” and did not at any stage feel incapable of driving before he fell asleep and crashed the vehicle. This Court upheld the High Court’s decision quashing the conviction, saying:[13]
… whether there has been negligence or carelessness [when a driver falls asleep when driving] is a question of fact in each case, and here the evidence of the defendant, accepted by the District Court Judge as a truthful witness, shows that he was alive to the risk of drowsiness on the part of the drivers in the convoy but at all times thought himself fit to drive. Let it be repeated that he has not been found to have been unreasonable in having that belief.
(c)Waugh v James K Allan Limited:[14] This case involved a lorry driver who had been subject to gastric attacks which passed quickly after relief by vomiting. He had vomited a few minutes before driving. While driving, he suffered a coronary thrombosis and died, and thereby caused an accident. The lorry driver was found not liable for negligence because a reasonable man in his position would not have recognised his gastric illness as the beginning of a coronary thrombosis.
(d)Jones v Dennison:[15] A driver of a vehicle caused an accident when he had a blackout. The driver suffered from epilepsy. He had also suffered a coronary thrombosis twice in the past but had recovered each time. While he had also suffered ten blackouts in the ten months before the accident, he did not know about them and his wife, who was aware of them, had concealed them from him. The Court upheld the decision at first instance dismissing the negligence claim because the driver was not, and could not reasonably have been, aware of his tendency to black out.
Application to the evidence
[12]Police v Vialle [1989] 1 NZLR 521 (CA).
[13]At 524.
[14]Waugh v James K Allan Ltd [1964] 2 Lloyd’s Rep 1 (HL).
[15]Jones v Dennison [1971] RTR 174 (CA).
We consider the correct question was whether it was reasonably possible that Mr Savieti did not recognise that he was sleepy when he was driving. If it was, then the next question was whether a reasonable person in his position would have recognised that he was sleepy.
As to the first question, we consider it was reasonably possible that Mr Savieti did not recognise he was sleepy. It is reasonably possible that he put his feelings of fatigue down to physical tiredness from work rather than a feeling of sleepiness that would make him prone to dozing off while driving. He had been working at the hospital for 20 years and had been in the stores supervisor position for three years. He was unaware of having had any microsleep episodes at work and had never fallen asleep when driving home. He often worked past 2.30 pm and did not always take an afternoon nap, although he usually did. His ESS self-appraisal was consistent with his evidence about how he likely felt on the day of the accident.
There was no credibility finding against Mr Savieti’s evidence. It was supported by the absence of any reference to sleepiness in his GP’s records. It was also supported by Dr Veale’s evidence. He said there is a continuum of those who are completely asymptomatic through to those with marked daytime sleepiness. He said that whether a person with severe OSA would have a warning before nodding off when driving depended “very much on prior experience” (giving the example of nodding off in a lecture and the next time being able to recognise the signs before nodding off). He could not answer whether it was likely that Mr Savieti had felt sleepy before he crashed implicitly, in context, because it was conceivable the he would not have felt sleepy despite the severity of his OSA.
As to the second question, we consider it was not established that a reasonable person in Mr Savieti’s position would have recognised that he was sleepy and at risk of falling asleep when driving. Dr Veale’s evidence was that “given the variability of how people feel with [OSA] of any severity” he had no way of judging whether Mr Savieti would have been aware that he was sleepy. He explained that sometimes people presented for care “because they feel tired and they’re underperforming” rather than because they are feeling increasingly sleepy. He noted that one of the reasons why people in need of care have a low ESS score is that the person does not perceive his or herself as sleepy.
Dr Veale thought it was likely that Mr Savieti was in fact sleepy in the lead up to the crash, but “forewarning implies that you know the consequence of the way you feel”. Dr Veale would have recognised the way Mr Savieti was feeling to be sleepiness, but he did not say that Mr Savieti ought to have recognised this. Dr Veale also considered it would not be surprising if Mr Savieti had experienced a sudden onset of sleep and said that the transition from feeling sleepy to asleep can be instantaneous.
Given Dr Veale’s evidence, and the absence of any contradictory expert evidence before the District Court, we consider it was not proven that Mr Savieti should have recognised that he was sleepy before the crash. We therefore would have allowed the appeal even without the further evidence that the parties presented at the hearing before us.
New evidence
For completeness, however, we discuss the further evidence the parties sought leave to adduce. We are satisfied that the evidence of Dr Fenwick and Dr Cramer Bornemann is fresh, credible and cogent and grant leave accordingly.[16]
[16]Leave was also sought on behalf of Mr Savieti to adduce a report from Sabine Visser, a clinical and neuropsychologist. Amongst other things, Ms Visser carried out tests to assess Mr Savieti’s cognitive function and its impact on memory. Neither party relied on the report on the appeal. We have reviewed the report but agree with counsel that it does not assist with the issues that are before us on this appeal.
Mr Savieti instructed Dr Peter Fenwick, a retired neuropsychiatrist from London, who continues to hold a range of honorary positions. Dr Fenwick supports Dr Veale’s evidence that a person with sleep apnoea may be sleepy but not recognise that they are. He refers to literature to the effect that 25 per cent of sleep apnoea patients do not feel sleepy, even though they are significantly sleepy.
Dr Fenwick also says that one of the consequences of prolonged chronic tiredness, including due to sleep apnoea, is that it is normal for the person to feel tired so that they no longer regard themselves as tired. He also says that microsleeps are very common with sleep apnoea. He says people who are chronically sleepy may get little warning that a microsleep is likely to occur and may dip into altered consciousness without recognising that they are about to do so.
On the basis of Mr Savieti’s evidence in court, Dr Fenwick’s view is that it was “unlikely that although he was in fact tired, he would have realised that afternoon that he would fall asleep as his subjective sleepiness awareness was the same as usual, that is, almost non-existent”.[17]
[17]Dr Fenwick also relied on a consultation he had with Mr Savieti and his brother. We have not taken into account that information because it was not before the District Court and therefore it was not subject to cross examination and was hearsay.
The respondent instructed Dr Michel Cramer Bornemann, a medical doctor based in Minnesota, with particular expertise in sleep medicine. Dr Cramer Bornemann agrees that a microsleep can occur quickly but this is not always the case. He says:
Mr Savieti [said] he [did] not recall having an awareness that he was experiencing any degree of sleepiness just prior to the [accident]. This condition would then suggest that the [accident] might have been the consequence of an episode of microsleep – a fleeting, uncontrollable, very brief episode of sleep. Though these episodes may be of such abrupt onset that an individual may quickly drift asleep without realizing it, episodes of microsleep occur most frequently when an already sleepy individual is trying to fight sleep and remain awake. Whether Mr Savieti experienced an episode of microsleep and thereby was unaware of his condition prior to the [accident] remains arguable. His experience may also be possibly explained by his inability to recall his experience of sleepiness just prior to the [accident]. Mr Savieti appears to have many conditions that may have pre-disposed him to amnesia or deficits in his ability to recall. …
(Emphasis in original.)
Dr Cramer Bornemann therefore accepts it is reasonably possible that Mr Savieti did not realise he was sleepy prior to having a microsleep although he also suggests reasons for Mr Savieti’s lack of recall which he considers may be more likely.
Dr Cramer Bornemann accepts that individuals who suffer OSA “regardless of severity many not necessarily experience subjective sleep[iness”. However, he considers Mr Savieti’s ESS score is suspect, noting the severity of his OSA and that by Mr Savieti’s own account he had daily struggles as a result of poor quality sleep (including feeling physically tired, driving with the window down and the music up and taking afternoon naps).
Dr Cramer Bornemann does not consider that Mr Savieti was “habituated” to the effects of chronic sleepiness. He goes on to explain that he considers it wrong to describe someone as habituated to poor sleep:
Q.You don’t like the word habituate, can I ask you, do you not agree that this patient could have been so used to having poor sleep that he didn’t recognise any of the symptoms that you have been listing, such as the naps, the tiredness, the window [down], the music up …?
A.So is he tolerating this degree of sleepiness, as many of us do in our culture, I agree that he is tolerating it, he may not appreciate the importance of these symptoms, but I don’t agree with the habituation aspect of this, to me habituation is if you have anxiety for whatever reason, … so habituation … is learning to deal with emotional regulation, but you can’t habituate aspects of our being that are necessary for survival, whether it’s a minimal degree of chloric intake, minimal degree of hydration and minimal degree of sleep, these are all biologic imperatives, and so he may have tolerated it but technically he didn’t habituate to it, these symptoms were there whether he recognised or chose not to act upon them.
Dr Cramer Bornemann later says another word for “tolerance” might be “acceptance”. However, it is clear from his evidence that, whether it is better described as habituation, tolerance, or acceptance, he accepts that a person might not recognise the symptoms. He goes on to say that he suspects Mr Savieti was sleepy but “did not appreciate the circumstances of his degree of sleepiness”. That may well have been the case, but that does not mean that a reasonable person in Mr Savieti’s circumstances would have appreciated his degree of sleepiness.
The further expert evidence therefore does not alter our conclusion that the appeal should be allowed. The evidence does not establish beyond reasonable doubt that Mr Savieti was careless in driving on the afternoon of the accident. It was reasonably possible on the evidence before the District Court, and confirmed by the expert evidence adduced on the appeal to this Court, that Mr Savieti did not realise he was sleepy when he drove that day. It was not established on the evidence before the District Court, nor by the expert evidence adduced on the appeal to this Court, that a reasonable person in Mr Savieti’s circumstances would have realised that he was sleepy when he drove that day.
Result
The application to adduce further evidence is granted.
The appeal is allowed.
Mr Savieti’s conviction for careless driving causing injury is set aside.
Solicitors:
Crown Law Office, Wellington for Respondent
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