Sandilands Tram Crash - An Accident

[43066]

I don't know what people fail to understand about the fact that if you fall asleep or "nod off" at the controls of a vehicle which you are being paid to drive, then absent of a medical condition, that is on YOU.

No it is not. People who are dreadfully tired know they are, and if you fall asleep at the wheel a jury will be entitled to infer this was a voluntary act.

Fatigue simply doesn’t work like that. You can have an enhanced sense of your own wakefulness. Judging by your excellent YouTube channel, you will have a lot more experience of jet lag than most people;
I’m sure you can recall experiencing that yourself.

Nope, the moral responsibility rests on the driver who fell asleep at the controls and killed seven people. There may certainly be a joint a several moral responsibility with the tram operator, which I know precious little about to opine about.

As I say, I disagree in those very limited circumstances where an individual has taken reasonable measures to mitigate against the risks of tiredness, yet still falls vulnerable to a micro-sleep. To me this then becomes a completely involuntary act and is essentially a form of automatism.

responsible about your own fatigue and I totally get that stopping the job isn't always easy (and believe me, as a minimum wage care assistant in the past, I know all about that), but that is a non-sequitur when talking about what some posters think is the evasion of criminal liability for mistakes you make when you are tired.

You are responsible for mistakes you make when you are tired. That is all there is to it from the criminal side.

I don’t think it’s quite as clear cut as you make out:

Falling Asleep Whilst Driving: Dangerous or Careless?

Ever since the Appeal Court delivered its opinion in Helen Alexander v Procurator Fiscal, Edinburgh (2016) HCJAC 3, the Crown has sought to prosecute drivers wh ...

www.theroadtrafficlawyer.com

The court should look at all the facts and circumstances and have an open mind to the possibility that a driver may have no warning of the onset of sleep as recognised in the High Court of Australia in Jiminez v The Queen (1192) 173 CLR 572. The reasoning in this case was quite properly discounted in Alexander specifically because the court could exclude that possibility on the evidence about the accused’s fatigued condition. The Jiminez case makes interesting reading and presents a more balanced view of the factors which should be taken into account in this type of case. A driver who has taken all reasonable precautions to guard against fatigue and simply fallen into a micro-sleep or ‘zoned out’ momentarily may reasonably argue that this conduct does not constitute dangerous driving.

Obviously the case referenced is an Australian case, and quite a few years old. I have no idea how persuasive a jury would find an argument along these lines had this case gone to trial, but it is at least an arguable position.

This approach seems to me to make very good sense. It’s somewhat instructive that causing death by careless/dangerous driving are not strict liability offences. There needs to be some deliberate act or negligence *in addition* to the mere fact of falling asleep.

Interestingly sneezing has been found to be a valid defence (non-insane automatism) to causing a traffic accident (R v Woolley). I honest can’t draw any moral distinction between someone involuntarily having a sneezing fit and losing control of a vehicle, and involuntarily falling asleep when they genuinely didn’t realise they were at risk of doing so.

 

[the sniper]

If he (under the RTA, if it were applicable) and TfL were both prosecuted, with all the many things the latter could and subsequently have done that could or certainly would have prevented the accident, an accident that likely wouldn't have happened if it were a railway today, in what are quite specific circumstances, do you not think that'd make it less likely that he'd be jailed? Fair enough, the many various nuisances and issues identified in the report might mean nothing to the jury, but surely it would have shown in the sentence. I can think of many circumstance in which someone could do something working on the railway and should be imprisoned for them, but I'm still not convinced this is one of them, given the very specific circumstances identified in the report.

Also, to what extent does the offence including 'happened on a road or in a public place' deliberately have its limits, in that this environment is beyond the intended scope of Road Traffic Act? As said on the previous page, if this had been a railway, which it probably should be considered, seemingly the offence would be endangering the safety of a person on the railway, which seemingly wouldn't apply in this case either because: (in bold)

This offence, contrary to section 34 OAPA 1861, makes it an offence to endanger, or cause to be endangered, the safety of any person conveyed upon the railway by any unlawful act or wilful omission or neglect. The tramline on which the tram was being driven at the time of the incident is not a railway, and there is no parallel offence of endangering the safety of a person on a tramway. Nor was there evidence of unlawful or wilful conduct in this case.

There is no real difference between being "asleep" and "microsleep", which is pure semantics, because in this case we must look at how the driver drove the tram, which, in the point after he allowed himself to become unaware, was at the very least careless and probably dangerous under the law, and then resulted in multiple deaths. The driver allowed his driving to deteriorate to the point where be became unaware of the hazard ahead - a hazard he had approached hundreds of times before. I am sure you are not so naive to think that if you do that in a car, you...don't go to court?

This is blissfully naive to think you can microsleep and not be criminally liable. You are inviting people to believe that the driver was the victim of something so sudden and severe he was unable to do anything about it; a hapless victim of consequence whom the justice system should just shrug at. Effectively, this is the insanity defence, which holds no water whatsoever as we have already seen.

To be fair, I'm only going by the phenomenon the report describes.