The Random thought thread

[Jerry_Atrick]

1 hour ago, old man emu said:

Perhpas you think me overly harsh in calling for a charge of manslaughter in such cases. Let's at least agree that the road rules should include a prohibition of driving into floodwaters. First, let's get a law to protect others, then we can argue the toss about an appropriate penalty.

The fault element of involuntary manslaughter is either unlawful and dangerous act; or criminal negligence. The question of legality is not as clear cut as people think. It isn't unlawful to cross a creek even if it is fast flowing. It probably is illegal to drive a car into the mouth of the Yarra river..  Also, the level of danger has to be such that it is a very high risk of injury or death. Importantly these are not strict liability offences - meaning there has to be a fault element (mens rea) and in the case of manslaughter, it is a subjective test - did the defendant actually perceive the level of danger. 

 

You're right - where these can be established, the charge will be manslaughter anyway. But the problem is, it is a high bar to reach and in road traffic accidents, there is a lot of grey area around these. For example, intentionally and at speed driving into a torrent of water will probably be evidence to meet the requirement for manslaughter. However, what if you were crossing what looked like a shallow creek with reasonably fast moving water, but it turned out it was quite a bit deeper than it looked? It would be hard to argue this would reach the bar required. So, the lesser offence, with the lesser bar, but still with a significant penal consequence available to the judge is there as a back up. 

 

I personally think this is correct, otherwise you risk catching other things in the manslaughter net that weren't intended to be. Maybe the briefings to law enforcement and judiciary should be to apply the provisions (s. 117 in the case of the NSW Road Transport Act) it more?

[nomadpete]

I consider driving through water ti be 'off road' driving.

It requires an individual risk assessment before the attempt.

 

It is unfair to compare it with running a red light which instantly places high risk of injury/ death to an unknown number of people who are likely to collide with the redlight runner.

 

I wonder how many commentors have actually done much driving through water, and in what (of the many different types of) vehicles they have gaind this experience.

 

I consider myself fairly experienced in water crossings, and I can see how easily the inexperienced/unwary driver can come to grief. But the same can be said of most motorists in otherwise normal driving.

Like all things, you cannot legislate common sense. With common sense and some risk management, most drivers should be trained to make safe decisions and either safely cross water or sensible decide not to.

 

Or maybe just ban motorcars because people can't be trusted to use them safely.