Traffic offences in NSW
Negligent driving charges in NSW
Negligent driving is the most commonly laid traffic charge in the state, and the one most often accepted without question. A crash is not proof of negligence, and where someone was injured the difference between a fine and a three year disqualification can turn on a single word in the charge.
An accident on its own does not prove negligent driving
The prosecution must prove you fell below the standard of a reasonable and prudent driver. Collisions happen without anyone driving negligently, and that argument is far harder to run once you have paid the notice or told police your version. Call us before you do either, on 0407 171 626 (Alicia) or 0407 534 594 (Michelle).
Catron Simmons Lawyers are traffic lawyers acting for drivers charged with negligent driving in Local Courts across New South Wales, from Sydney and the Hills District to the regions.
Negligent driving sits in section 117(1) of the Road Transport Act 2013 and comes in three forms. Without injury it is a minor matter, usually a penalty notice. Where someone suffers grievous bodily harm or dies, it becomes a major traffic offence carrying imprisonment and an automatic three year disqualification. The facts can be identical. What changes everything is the consequence.
Know your charge
The three forms of negligent driving
Check the section number on your court attendance notice or penalty notice. It determines whether this is an inconvenience or a matter that can end in gaol.
Negligent driving
No death and no grievous bodily harm. Maximum court fine of $1,100, and there is no automatic disqualification, although the court retains a discretion to disqualify. Most are dealt with by penalty notice.
Occasioning grievous bodily harm
A major traffic offence. Up to $2,200 and nine months’ imprisonment on a first offence, with an automatic three year disqualification and a twelve month minimum.
Occasioning death
Up to $3,300 and eighteen months’ imprisonment on a first offence, with the same automatic three year disqualification. Arrest and a period in custody are both realistic.
Where the driving is alleged to go beyond negligence, the charge is furious, reckless or manner dangerous driving under section 117(2), and where an impact causes death or grievous bodily harm the police may charge under section 52A of the Crimes Act 1900 instead. Both are covered on our page on reckless and dangerous driving.
The elements
What the prosecution has to prove
On a straight negligent driving charge there are two elements. That you were the driver of a motor vehicle on a road, and that you drove it negligently. Where the charge is occasioning death or grievous bodily harm, the prosecution must also prove that the death or the injury resulted from that negligent driving.
The standard
Negligent driving means driving without the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances: DPP v Yeo [2008] NSWSC 953. It is an objective standard. Your intentions do not come into it, and neither does the fact that you were doing your best. Equally, it is not enough for the prosecution to point at a collision and stop there.
The circumstances the court must consider
The Act requires the court to have regard to all the circumstances of the case, including:
- the nature, condition and use of the road where the offence is alleged to have occurred
- the amount of traffic actually on the road at the time, or that might reasonably be expected to be on it
- any obstructions or hazards, such as broken down or crashed vehicles, fallen loads, or an accident or emergency scene
Grievous bodily harm
Grievous bodily harm means really serious bodily injury. It includes any permanent or serious disfigurement, broken bones, damage to internal organs and the destruction of a foetus. There is no bright line, and whether a particular injury clears the threshold is often the most productive thing to argue, because it decides which of the three charges you face.
What you are facing
Penalties
Same standard of driving
The consequence decides the charge
Nothing about the manner of driving needs to change for the exposure to multiply. Only the outcome does.
No injury, no automatic disqualification
Occasioning grievous bodily harm
Occasioning death
A penalty unit in NSW is currently $110. A second or subsequent offence means you have been convicted of another major traffic offence, such as drink driving, within the previous five years.
| Offence | Maximum fine | Maximum gaol | Automatic disqualification | Minimum disqualification |
|---|---|---|---|---|
| No death or GBH, s 117(1)(c) | $1,100 | Not applicable | None, court discretion | None |
| Occasioning GBH, s 117(1)(b) | $2,200 | 9 months | 3 years | 12 months |
| Occasioning death, s 117(1)(a) | $3,300 | 18 months | 3 years | 12 months |
| Offence | Maximum fine | Maximum gaol | Automatic disqualification | Minimum disqualification |
|---|---|---|---|---|
| No death or GBH, s 117(1)(c) | $1,100 | Not applicable | None, court discretion | None |
| Occasioning GBH, s 117(1)(b) | $3,300 | 12 months | 5 years | 2 years |
| Occasioning death, s 117(1)(a) | $5,500 | 2 years | 5 years | 2 years |
The maximum disqualification is unlimited in every case. Where a disqualification is automatic, the court can reduce it to the minimum shown but cannot go below it. The only way to avoid disqualification altogether is a non conviction order.
The distinction that matters
Negligent, reckless or dangerous?
These are not interchangeable words. They describe different standards of driving, they sit in different subsections, and on the same set of facts the police sometimes have a genuine choice about which to lay. Arguing the charge down one rung changes the outcome more than any plea in mitigation will.
Negligent
A departure from the standard of care of a reasonable and prudent driver. Momentary inattention can be enough. Without injury, no automatic disqualification follows.
Furious, reckless or manner dangerous
A considerably higher standard, requiring a real danger to the public judged objectively, or a conscious disregard for others’ safety. Carries nine months’ gaol and an automatic three year disqualification even where nobody is hurt.
Dangerous driving occasioning death or GBH
Strictly indictable and heard in the District Court. Requires driving under the influence, at a dangerous speed, or in a manner dangerous, plus an impact. Up to 14 years.
A common misunderstanding is that furious and reckless driving are Crimes Act offences. They are not. They sit in section 117(2) of the Road Transport Act, alongside negligent driving, which is precisely why the two are so often confused and so often worth contesting.
A real decision
Should I just pay the penalty notice?
Where negligent driving has not caused death or grievous bodily harm, police usually issue a penalty notice carrying a fine of $481* and three demerit points. Paying it finalises the matter with no conviction and no court appearance, and for most drivers that is the sensible answer.
It is not automatic, though. Paying is an admission for demerit point purposes, and three points can be the difference between keeping and losing your licence if you are close to the threshold, on a provisional licence, or already suspended once. You can elect to have the matter dealt with by the court instead, which opens the possibility of a section 10 dismissal with no points at all. The risk is that the court can convict you and impose a larger fine.
The election has a deadline printed on the notice. It is worth a short conversation before that date passes rather than after.
*Penalty notice amounts are indexed and change on 1 July each year. The figure above is current at the date this page was last reviewed. Always check the amount printed on your own notice.
Your options
Defences
Negligent driving is charged easily and defended more often than most people realise, because the prosecution has to prove a standard of driving rather than simply that something went wrong.
The driving was not negligent
An inevitable, unavoidable or blameless accident is not negligent driving. Nor is a reasonable response to another driver’s error, an animal on the road or a sudden hazard. Defensive driving that ends in a collision is still driving to the standard the law requires.
Mechanical defect
A sudden and unforeseeable failure of brakes, steering, a tyre or a component is not negligence. This needs the vehicle preserved and an engineer’s report, so it must be raised early.
Automatism and medical events
A seizure, stroke, hypoglycaemic episode or other sudden loss of capacity means the driving was not voluntary. Medical evidence is required, including whether the event was foreseeable.
Causation
On a charge of occasioning death or grievous bodily harm, the outcome must result from your negligent driving. Where another driver, a road hazard, an intervening event or a pre-existing condition caused it, the link is broken.
The injury is not grievous bodily harm
Where the injury falls short of really serious bodily harm, the charge reduces to negligent driving simpliciter. That removes the automatic three year disqualification and the prospect of gaol entirely.
Honest and reasonable mistake of fact
Available in limited circumstances where you held a genuine and reasonable belief in a state of facts which, if true, would mean the driving was not negligent.
Even where negligence is conceded, the police fact sheet is worth close attention. The court sentences on the facts you agree to, and details such as speed, distance and the sequence of events are frequently overstated in the first draft.
Sentencing
What a court can order at sentence
Get advice before pleading guilty. A well prepared sentence is the difference between a non conviction order and a disqualification you cannot work around, and the court gives a discount for a plea entered early.
- Section 10(1)(a) dismissal. Guilty, but the charge is dismissed. No conviction, no penalty, no disqualification and no demerit points.
- Conditional Release Order without conviction. A good behaviour bond of up to two years with no conviction recorded, supervised or unsupervised.
- Conviction with no other penalty. Under section 10A a conviction is recorded, and any automatic disqualification follows, but no further penalty.
- Fine. Can be combined with a bond. Usually payable within 28 days, with time to pay available on application. Unpaid fines lead to an enforcement order and licence suspension.
- Conditional Release Order with conviction. A bond following a conviction, with conditions such as supervision, treatment or abstinence.
- Community Correction Order. Up to three years, and may include community service, curfews or a supervision condition.
- Intensive Correction Order. A sentence of imprisonment served in the community under strict supervision, with conditions such as home detention or electronic monitoring.
- Full time imprisonment. Available on the death and grievous bodily harm charges, and a real risk where the negligence was sustained rather than momentary.
The Traffic Offender Program
The Traffic Offender Intervention Program is a court recognised road safety course. Completing it before sentence demonstrates insight rather than asserting it, and on driving matters magistrates give it real weight. We refer clients to a provider near them as soon as we are engaged.
Your licence
Suspensions, appeals and demerit points
My licence has been suspended. What can I do?
Lodge an application in the Local Court within 28 days of the notice. The deadline cannot be extended, and the suspension stays in force while the appeal is pending. The court can only lift or vary it if satisfied there are exceptional circumstances, and needing your licence for work, school or family is ordinary rather than exceptional. See licence suspension appeals.
Demerit points
Negligent driving carries three demerit points, whether you pay the penalty notice or are convicted in court. Unrestricted licence holders reach suspension at 13 points, professional drivers at 14, provisional P2 holders at 7, P1 holders at 4 and learners at 4. A single negligent driving charge is often what tips a driver over.
There is no work licence in NSW
Despite what you may have been told, NSW has no work licence, restricted licence or hardship licence. If you are disqualified, you cannot drive at all.
Other consequences worth knowing
- A conviction sits on your criminal record and can affect employment, professional registration and travel, particularly to the United States.
- Where alcohol or drugs were involved, expect a companion charge. See drink driving and driving with an illicit substance.
- A finding of negligent driving can be used against you in a civil claim arising from the same collision.
- Driving while disqualified is a separate and serious offence. See licence offences.
You can also apply to have a long disqualification removed early once you have stayed offence free for the required period. See removing a licence disqualification.
Why Catron Simmons
Why drivers choose us
A prosecutor’s eye for the brief
With a background in prosecution, we read the brief the way the other side does. On negligent driving that means the collision report, the scene measurements, the witness accounts and the medical evidence, which is where these cases are won.
Charge negotiation, not just mitigation
Reducing a grievous bodily harm charge to negligent driving simpliciter removes the automatic three year disqualification altogether. That is worth far more than a good speech on sentence, and it is the first place we look.
Wherever your matter is listed
These charges are heard in the court nearest to where the collision happened, which is often nowhere near home. We appear in Local Courts across New South Wales, so you are not left finding a second lawyer in another town.
You deal with a principal
We are a boutique firm. You talk to the solicitor who will appear for you, not a call centre, and we are contactable outside business hours.
Common questions
Negligent driving: your questions answered
Does having an accident mean I was driving negligently?
No. The prosecution must prove you fell below the standard of care of a reasonable and prudent driver in the circumstances. Collisions occur without negligence, through an unavoidable hazard, another driver’s error, a mechanical failure or a sudden medical event. A police officer’s opinion at the scene is not evidence of the standard of driving.
What is the difference between negligent driving and dangerous driving?
Negligent driving is a departure from the standard of a reasonable driver, and momentary inattention can be enough. Furious, reckless or manner dangerous driving under section 117(2) requires a considerably higher degree of fault: a real danger to the public judged objectively, or a conscious disregard for others’ safety. Both sit in the Road Transport Act, not the Crimes Act, which is a common source of confusion.
Will I lose my licence for negligent driving?
Where nobody was killed or seriously injured, there is no automatic disqualification, although the court retains a discretion to disqualify and three demerit points apply. Where the charge is occasioning grievous bodily harm or death, disqualification is automatic at three years on conviction, reducible to a twelve month minimum. The only way to avoid it entirely is a non conviction order.
Should I pay the penalty notice or take it to court?
Paying finalises the matter with no conviction, but it means three demerit points, which matters if you are close to your threshold or on a provisional licence. Electing to go to court opens the possibility of a section 10 dismissal with no points at all, at the risk of a conviction and a larger fine. The election deadline is printed on the notice and cannot be extended.
Can a negligent driving charge be reduced or withdrawn?
Frequently. The realistic paths are disputing that the injury amounts to grievous bodily harm, breaking the causal link between the driving and the outcome, or establishing that the driving met the reasonable driver standard. Reducing a grievous bodily harm charge to negligent driving simpliciter removes the automatic three year disqualification and the prospect of imprisonment.
What counts as grievous bodily harm?
Really serious bodily injury, including permanent or serious disfigurement, broken bones, damage to internal organs and the destruction of a foetus. There is no bright line, so whether an injury clears the threshold is often genuinely arguable on the medical evidence, and it determines which of the three charges you face.
Can I be gaoled for negligent driving?
Not where there was no death or grievous bodily harm, since the maximum for that offence is a fine of $1,100. Occasioning grievous bodily harm carries up to nine months, and occasioning death up to eighteen months on a first offence. Custody is a genuine risk on those charges, particularly where the negligence was sustained rather than momentary.
Do I have to go to court?
Not if the matter is finalised by penalty notice. Otherwise yes. You can send in a written notice of pleading, but we do not recommend it: the magistrate would have only the police fact sheet and your record, with nothing about you or your circumstances, and the penalty is usually heavier as a result. If you cannot attend, we can appear for you.
Keep reading
Related traffic law pages
Drink driving and PCA charges →
Driving under the influence (DUI) →
Driving with an illicit substance →
Police pursuit →
Infringement notices and fines →
Camera detected offences →
Appealing a police suspension →
Transport for NSW licence appeals →
Removing a disqualification →
Licence offences and driving while disqualified →
All traffic law services →
Get started
Charged with negligent driving? Let’s talk today.
Send us your penalty notice or court attendance notice and the police fact sheet. We will tell you what you are facing, whether the charge can be defended or reduced, and what your realistic options are.