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Tuesday, 10 April 2012

Dangerous sneezing

Last week (here) Elucubrator digested Dover v Doyle [2012] VSC 117.

For what it's worth, I found nothing nothing surprising in Bell J's finding that an offence under s 56 of the Road Safety Act 1986 must be conscious and voluntary. It hardly seems necessary, let alone desirable, to punish a person for conduct that is literally beyond their control.

His Honour referred in passing [at 37] to Ahadizad v Emerton [2002] ACTSC 20 as an illustration of the principles relating to voluntariness in Jiminez v The Queen (1992) 173 CLR 572 and R v Falconer (1990) 171 CLR 30. The case involved a claim that a bout of sneezing was responsible for a car crash.

Sadly, Victorian law has recently dealt with invented claims of involuntariness. In Ahadizad v Emerton it was common ground that the sneezing was genuine.

Miles CJ [at 2]:

The Magistrate found that the appellant was driving a car south along Boddington Crescent, Kambah at 5:30 am on Thursday 19, October 1999 with the headlights on, at a speed of 60 kilometres per hour. As he passed the Carleton Street shops, the appellant felt an irritation but did not consider it an indication that he would suffer a sneezing attack. Some 350 metres after that, he did suffer a six second sneezing attack, travelling a distance something in excess of 100 metres whilst sneezing and with his eyes mostly closed. By the time the sneezing attack had finished, the appellant's vehicle had mounted the kerb of the incorrect side of the road and had travelled a further 18 metres. The appellant then regained control of his vehicle and attempted to move back to the correct side of the road and in the process collided with an oncoming vehicle which had moved in a similar attempt to avoid collision.


Consistently with the earlier authorities, it was considered that the offence charged (dangerous driving under s 129(1) of the Motor Traffic Act 1936) would have to be proven to be voluntary to be made out. In the ACT, as in other jurisdictions, no specific intent is required to prove driving dangerously: R v Coventry (1938) 59 CLR 633. But unlike in Jiminez, where it was clear that a person who was unconsciousness could not be acting voluntarily, the Court in Ahadizad v Emerton found that the accused's loss of control was not total.

Miles CJ [at 6]:

The Magistrate recognised the severity of the attack in describing it as a "fit". In argument there was some doubt as to how to classify a sneezing attack. It is clear from cases such as Jiminez at 282-283, as indeed from human experience, that once a driver falls asleep the driving thereafter is neither conscious nor voluntary. There is obiter in Hill v Baxter [1958] 1 QB 277 that a loss of control caused by a sudden attack by a swarm of bees is sufficient to render involuntary acts done in mechanistic response to the attack. However all cases depend on the circumstances. The effect of a sneezing attack is not absolute. Even during rapid and severe sneezing one still has a modicum of control. In the present case the degree of sneezing was such that it was open to the Magistrate to find that the appellant could and should have applied the footbrake.

The appellant also contended that the Magistrate's reasoning was based on a false assumption that it is dangerous to continue to drive during a sneezing attack. This contention does not fall within the ground of appeal. However if it were considered, it would fail. What is dangerous is a question of fact. A court may take judicial notice of facts that are so generally known that every ordinary person may be reasonably presumed to be aware of them: Holland v Jones [1917] HCA 26; (1917) 23 CLR 149. Driving and sneezing are each a common experience. It was open to the Magistrate to find that to continue to drive during a sneezing attack is dangerous.

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