Causing Serious Injury by Careless Driving – A Guide

Why was the Offence of Causing Serious Injury by Careless Driving created?

According to the Government’s policy paper, the overarching aim of the new offence was to ensure that the “punishment fits the crime”. In particular the policy paper provides:

The government wants to close a gap in the law that fails to recognise the harm caused where drivers cause serious injury by their careless driving.

There are currently two specific driving offences of causing serious injury:

• causing serious injury by dangerous driving
• causing serious injury by driving if a disqualified driver

There is no specific offence of causing serious injury by careless driving even though injuries caused by careless driving can be wide ranging and may result in permanent and life changing injury.

This is an accurate description. Previously, no matter how serious the consequences of a piece of careless driving (short of causing death), an accused could only be prosecuted for the offence of careless driving. In some instances, this may have led to “over-charging” where prosecutors felt obliged to prosecute a person for causing serious injury by dangerous driving. From that perspective at least, the creation of this new offence could be seen as a “good thing”. We discuss this further below.

What is Careless Driving?

The test for causing serious injury by careless driving is the exact same test as for careless driving. It is found in section 3ZA of the Road Traffic Act 1988 which, amongst other things, provides:

A person is to be regarded as driving without due care and attention if (and only if) the way he drives falls below what would be expected of a competent and careful driver

It further provides:

In determining….. what would be expected of a careful and competent driver……. in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.

The test for causing serious injury by careless driving therefore includes objective and subjective elements. It is a matter for the Crown to prove that the driving was careless. Each case will ultimately turn on its own facts and circumstances. Examples of careless driving could, if proven, include the following:

• undertaking;
• tailgating;
• driving through a red light by mistake;
• turning into the path of another vehicle;
• the driver being avoidably distracted by tuning the radio, lighting a cigarette etc.
• flashing lights to force other drivers to give way;
• misusing lanes to gain advantage over other drivers;
• unnecessarily staying in an overtaking lane;
• unnecessarily slow driving or braking;
• dazzling other drivers with un-dipped headlights.

Each case turns on its own facts and circumstances. Circumstances in particular can be important. The last three examples listed here are particularly questionable and/or situational. For example,there may be situations where driving with undipped headlights is neccessary.

What is Serious Injury?

This is a little unclear. For the purpose of offences committed in Scotland, the Road Traffic Act 1988 defines serious injury as “severe physical injury”. That begs the question of what is “severe physical injury”. The closest we can get to a definition is in the Jury Manual which states, in the context of causing serious injury by dangerous driving:

Examples of severe physical injury are:
• multiple lacerations
• deep wounds
• ones causing much loss of blood
• broken bones

“Injury”, on the other hand, is described (in the context of an assault) as:

Examples of injury are:

minor lacerations
scratches
bruises
small cuts

This serves as guidance but the Jury Manual is not legal authority and the phrases used are open to interpretation. Some obvious questions: What constitues a “deep” wound, for example. When do minor lacerations become multiple lacerations? Is any broken bone, no matter how minor, a “severe physical injury”?

Ultimately, as with the test for careless driving, whether an injury is “serious” will ultimately be a question of fact.

It is for the Crown to prove that an injury was “serious” although (if appropriate medical records are provided and the injury is obviously serious) in some cases, it may be appropriate to agree that the injury is serious and focus on the driving element. Standing the difference in penalties between “standard” careless driving and causing serious injury by careless driving, however, such a decision should only be made after very careful consideration.

What are the Penalties for Causing Serious Injury by Careless Driving?

While the creation of this offence is, in some respects, logical, the penalty for it (at least in respect of the “driving” penalty) is severe.

Most driving offences come with two penalties. The first is the driving penalty. Often the court has a choice between penalty points and discretionary disqualification. The second is the “criminal” penalty. For many driving offences, the usual penalty is a fine.

The driving penalty for causing serious injury by careless driving is a mandatory disqualification of at least one year. The court has no discretion in that regard. That can be compared to careless driving where as few as 3 penalty points can be imposed.

In terms of the “criminal” penalty, the court retains discretion. The potential penalties include fines, community disposals (e.g. unpaid work) or up to 12 months custody.

At the time of writing (15 March 2023), very few cases have come before the courts so it is difficult to ascertain what to expect in terms of criminal penalties. We expect custodial sentences to be few and far between. Beyond that, however, the Scottish courts (unlike the courts in England) do not have sentencing guidelines for most road traffic offences.

There are general sentencing guidelines used in Scotland. Sentencing has the triple aim of punishment, deterrence and public protection. The court assesses  the culpability of the offender and the harm caused. It also considers aggravating and mitigating factors before arriving at a “headline” sentence. If there is an early plea of Guilty, a discount is applied. It may be possible to submit that the aims of sentencing are largely achieved by the mandatory disqualification and, therefore,  a financial penalty is an appropriate sentence , particularly in cases of lower culpability (e.g. momentary inattention) and harm (e.g. a serious injury which is not life changing).

Do the Punishments Fit the Crime?

The aim of introducing this offence was to ensure that the “punishment fits the crime”. As this is a guide rather than an opinion piece, we should state now that we are straying into opinion. In our opinion, a phrase like “ensuring the punishment fits the crime” is lazy. It is the type of phrase parroted all too often by politicians of all persuasions.

If careless driving is the result of a deliberate act and the standard of driving is not far short of dangerous driving, the punishment may fit the crime.  In the vast majority of careless driving cases, however, what has happened is a complete accident and many errors, while careless, may be relatively minor.

Lets draw a comparison with a single punch assault. Life changing injuries have occurred because the victim has struck their head on the pavement when falling. The accused, in throwing a single punch, did not mean to cause such serious injuries but must pay the price for the outcome of their actions. What is the difference between that offence and this offence? The answer is simple. While the consequences of the punch were unintended, the punch itself was not. It was a deliberate attempt to injure the victim. In many careless driving cases, there is no intent. There is simply an error of judgement, often caused by momentary inattention.

In our opinion, therefore, removing the court’s discretion entirely in respect of disqualification (other than in terms of whether to restrict it to one year or impose a longer period), is both draconian and arbitrary.

We have previously discussed this issue at length and the article can be found here.

Contact Us

With all of that said, we are where we are and this offence is now part of the fabric of road traffic law. Should you find yourself charged with this offence, legal advice is essential. Our initial consultation is free of charge so, if you require assistance, please get in touch via our webpage or by calling the number below.

Read Our Previous Case Outcomes

Click to Call 0800 048 8696