In R v Livas (No 2)  [2020] ACTSC 116, a heavy vehicle driver was sentenced by the ACT Supreme Court to 39 months in prison, including a non-parole period of over two years, for culpable driving causing death contrary to section 29(2) of the Crimes Act 1900 (ACT).

The conviction arose out of an incident involving a driver from Canberra Sand and Gravel (CSG), who, while travelling on the Monaro Highway, drove into the back of a stationary car at an intersection. The collision caused the death of a four-year-old passenger who was seated in the back.

While the case relates to a driver that was not operating under the Heavy Vehicle National Law (HVNL), it serves as a reminder of the importance of ensuring that drivers affected by possible sleep-related health issues seek treatment and that employers look out for the signs that an employee may be affected by such a condition.

Court observations on the cause of the collision

Throughout the case, it became known that the driver had a long history of untreated sleep-related issues that contributed to the cause of the accident.

Between 2010 and 31 July 2017, there were several occasions where he identified to various health professionals that he was suffering with sleep-related issues. He had cases of "frequent walking at night" and drowsiness during the day. On two occasions he was referred to Canberra Sleep Clinic in relation to possible diagnoses of sleep apnoea.

When treated at the scene by paramedics, the driver told them "I was driving my truck and at some point I blacked out". He repeated similar statements to the staff at the hospital.

Despite knowing about a potential sleep disorder, the driver pursued work as a commercial driver. At a medical examination for his driver's licence, he positively asserted he had no sleep disorder. Further to this, when applying to renew his licence, he stated that he was not suffering from any long-term illnesses, injuries or conditions that could affect his ability to drive.

When applying to work with CSG, he led them to believe he was in good health and had no existing medical conditions that could affect the performance of his duties. Disturbingly, only months before the incident, he took part in a sleep study where the doctor advised him that he should not be operating a motor vehicle until his sleep apnoea was adequately treated. Unfortunately, the driver did not heed this advice leading to the fatal accident.

In light of the above, it was clear to the court that had the driver's condition been investigated, he would not have been driving the truck at the time of the collision. Accordingly, the court ruled that the driver's conduct was unjustifiable.

Lessons for drivers in the HVNL context

It is well-known that fatigue is a significant cause of accidents on the road.

In this case, the driver pleaded guilty to culpable driving causing death and showed that he understood the impact his actions had and would continue to have on the victim's family, other road users and himself. It was also announced that prior to the accident he failed to disclose on numerous occasions (despite knowing otherwise) that he had a condition that would affect his ability to perform his job.

In the HVNL context, drivers should:

  • understand that they must be truthful when completing forms to qualify them to drive heavy vehicles and earn employment in the transport industry. It might be self-serving to lie (or omit certain information) in the short term, but the consequences of, for example, misrepresenting illness, injuries or conditions that can impact on a driver's ability to perform their job, can be permanent and life-altering
  • ensure that they don't drive while impaired by fatigue
  • seek medical care and treatment if they are concerned about sleep-related health issues or are aware that they may suffer from a sleep disorder
  • notify their employer if they are impaired by fatigue or may need to seek medical care or treatment in respect of sleep-related health issues
  • be aware that driving while fatigued may not only expose them to monetary penalties under the HVNL, but may also lead to imprisonment under other criminal and road legislation should it result in an incident such as the one in the above case. 

Lessons for employers in the HVNL context

On the other hand, employers should:

  • ensure they don't let their drivers drive while impaired by fatigue
  • take any reported concerns from employees regarding fatigue seriously
  • keep an eye out for signs of fatigue. If you suspect that the driver's attentiveness and fatigue may be affected by underlying conditions, illnesses or disorders, ask them to undertake a medical examination before proceeding with their duties.

In the above case, the driver actively hid his sleep-related health issues from his employer. However, had the employer been aware of the driver's untreated, long-term health conditions and had the driver been driving a fatigue-regulated heavy vehicle, it is foreseeable that the employer would also have been pursued for possible charges for failing to meet its primary duty of care or for making prohibited requests under the HVNL. This would also be the case if the driver's condition, despite his indications to the contrary, was obvious to the employer but the employer chose to turn a blind eye by not enquiring further or investigating. 

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.