On 4 December 2020 Her Honour Judge S David delivered her verdicts in R v McLean  SADC 170; finding Mr McLean ‘Not Guilty’ of any criminal offences following a fatal single vehicle accident involving a South Australian ambulance.
Mr McLean was employed by the South Australian Ambulance Service to drive and operate an ambulance on behalf of the Bariatric Response Unit. The unit operated out of the Fulham Gardens Ambulance Station in Adelaide (). On 15 August 2016 Mr McLean began his scheduled 1800-0600 night shift. He and his partner were dispatched to an address at Coonamia. (According to Google maps, the trip from Fulham Gardens to Coonamia is 222km with a 2h 21m travelling time). They arrived on scene at 20:46. There were difficulties getting the patient out of her home, so they did not depart for the return journey until 00:29 on 16 August. They stopped at 01:09 and again at 01:49. They recommenced the journey at 02:04 (). At 02:50 the ambulance driven by Mr McLean ‘left the right-hand lane of the southbound carriageway, hit a tree on the grass median strip and then travelled back to the left-hand lane of the southbound carriageway where it went over a grass embankment and rolled over once’ (). The patient was killed and the patient’s daughter, and Mr McLean’s ambulance partner suffered serious injuries.
When talking to police Mr McLean said that he ‘fell asleep’ (). He was charged with three offences – one count of ‘Causing Death by Dangerous Driving’ and two counts of ‘Causing Harm by Dangerous Driving’ (). The court had the option of substituting alternative, lower-level offences of ‘Aggravated Careless Driving’ (aggravated because the death of a person) for count one, and ‘Careless Driving’ for the other two counts ().
Mr McLean’s trial began before a jury, but delays brought about by the COVID pandemic meant the jury was discharged. Mr McLean then elected to be tried by a judge sitting without a jury ().
There was no doubt that Mr McLean was the driver of the vehicle and that the accident caused the death and injuries. The only issue was whether Mr McLean’s actions meant the manner of his driving was dangerous to the public ().
The problem with allegations of dangerous driving where a driver falls asleep, is that whilst the driver is asleep they are not acting voluntarily so they are not responsible for the consequence. It is the time immediately before they fall asleep that is relevant.
Her Honour directed herself as the law, and the Crown case, as follows (at -):
… A person’s driving is dangerous if it involves a serious or real risk of injury to others which is greater than the ordinary risks of the road and which amounts to a danger to the public Put another way, the prosecution must prove that a reasonable person in the situation of the accused should have realised that driving in his tired or fatigued condition was dangerous to the public, given the risk of falling asleep. The prosecution can prove this element of the offence by showing that there were warning signs that should have alerted the accused to the risk of falling asleep.
In Kroon v The Queen King CJ said:
Every act of falling asleep at the wheel is preceded by a period during which the driver is driving while awake and therefore … responsible for his actions. If a driver, who knows or ought to know that there is a significant risk of falling asleep at the wheel, continues to drive the vehicle, he is plainly driving without due care and may be driving in a manner dangerous to the public. If the driver does fall asleep and death or bodily injury results, the driving prior to the falling asleep is sufficiently contemporaneous with the death or bodily injury to be regarded as the cause of the death or bodily injury…
In Jiminez v The Queen, in a joint judgment, the High Court approved the reasoning in Kroon and said:
It follows that for a driver to be guilty of driving in a manner dangerous to the public because of his tired or drowsy condition that condition must be such that, as a matter of objective fact, his driving in that condition is a danger to the public. Various matters will be relevant in reaching such a conclusion. The period of the driving, the lighting conditions (including whether it was night or day) and’ the heating or ventilation of the vehicle are all relevant considerations. And, of course, it will be necessary to consider how tired the driver was. If there was a warning as to the onset of sleep that may be some evidence of the degree of his tiredness. And the period of driving before the accident and the amount of sleep that he had earlier had will also bear on the degree of his tiredness. But so far as “driving in a manner dangerous” is concerned, the issue is not whether there was or was not a warning of the onset of sleep, but whether the driver was so tired that, in the circumstances, his driving was a danger to the public. The various matters which bear on that question, and the way in which they bear on it, should be carefully drawn to the attention of the jury
The relevant period of driving to be assessed is the accused’s driving before he fell asleep or lost consciousness. The driving must be sufficiently contemporaneous with the vehicle leaving the road and the vehicle rollover such that the period during which the accused allegedly drove dangerously was a substantial cause of the impact and death or harm. If a person is asleep, his actions at the time he is asleep are not conscious or voluntary and he cannot be criminally responsible for driving dangerously at that time. …
Accordingly, the relevant period in which to assess whether the accused’s driving was objectively dangerous is the period before the accused allegedly fell asleep which is sufficiently contemporaneous to the collision… In this case, the accused is alleged to have been driving dangerously on his trip back to the RAH [Royal Adelaide Hospital] after leaving Port Wakefield and from about 2.33 am on 16 August 2016, when the accused activated cruise control.
The test to be applied is that of any reasonable person in the situation of the accused who ought to recognise that driving in his condition is a danger to the public. In applying the test, the accused’s personal characteristics are not to be taken into account and no regard is to be had to matters such as the accused’s age, driving experience, lack of education, mental facilities, eyesight, reaction times or personality defects.
The prosecution case is that the accused was significantly fatigued after he left Port Wakefield for Adelaide and from about 2.33 am, and that a reasonable person in the situation of the accused would have appreciated that to continue driving was a danger to the public, given the real risk that he would fall asleep. Whilst there appears little or no dispute that the accused fell asleep shortly before the ambulance rolled, the mere fact alone that the accused fell asleep is insufficient to establish that a reasonable person in the situation of the accused ought to have known that he was a real risk of falling asleep and that his driving was dangerous…
The question therefore was whether Mr McLean realised that he was fatigued or otherwise at risk of falling asleep. At - Her Honour said:
In cross-examination, the accused said he felt no more tired that evening than he did during any other night shift. The accused said he did not think he was at risk of falling asleep, or a risk to anyone else on the road.
The accused said that to his knowledge the only time he had fallen asleep whilst driving was on the evening of the accident. He said if he had any suspicion that he might fall asleep suddenly and without warning, he would not have driven the ambulance.
The accused agreed that he had done nine 12-hour shifts in 12 days, and he had not had a scheduled break of more than 36 hours, and he did two extra night shifts on his rostered days off. As to overtime, he said he only did extra shifts occasionally and he would not do overtime if he did not feel he was fit for work.
Why might a person fall asleep without warning? At  Her Honour reported that the accused was,
… in February 2020 diagnosed the accused with severe sleep apnoea. [Professor Reynolds] said that the accused was probably suffering from that condition at the time of the accident. He considered it plausible that the accused was unaware of his condition prior to February 2020, and that the accused suffered from an incident of sleep apnoea for the first time whilst driving the ambulance and immediately before the vehicle left the road.
Her Honour’s conclusions
Her Honour’s conclusions are set out at -:
On the whole of the evidence, I am not satisfied that the accused’s driving was objectively dangerous or that a reasonable person in the situation of the accused ought to have realised that he was so tired or fatigued that to continue driving in that condition was a danger to the public, given the real risk of falling asleep. This is not a case where a reasonable person in the situation of the accused ought to have realised that he was at risk of falling asleep because he had some direct warning of drowsiness or sleepiness, or because of the length of time he had driven without rest, or by reason of his lack of sleep in the preceding hours or days, or because of the conditions under which he was driving. I have reached that conclusion for the following reasons.
First, the accused was not driving for an extended time prior to the vehicle rollover. He left Coonamia at 12.39 am on 16 August 2016. He stopped outside of Hope Gap at 1.09 am for a couple of minutes. He then stopped at Port Wakefield at 1.49 am for about 15 minutes, where he used the toilet facilities and consumed some food and drink. The vehicle rollover occurred at about 2.50 am. Accordingly, the accused commenced his journey a little more than two hours before the accident. He had stopped twice during that time, and he had only been driving for between 40 to 45 minutes before the vehicle left the road. That needs to be contrasted with a person who had been driving throughout the night, or for many hours, or at least for longer than the recommended two-hour period of driving without stopping.
Second, the accused had slept for 13 of the 24 hours prior to the start of his night shift on 15 August 2016. That is, more than the recommended amount of sleep. He had been awake for only 10.5 hours (in the context of a 12-hour shift) at the time of the vehicle rollover. Further, from 8 August 2016 to 15 August 2016, the accused had slept for a ‘reasonable’ or ‘ample’ amount of time during each 24-hour cycle (as described by Professor Dawson), and appeared to have consistently obtained the recommended amount of sleep of five hours or more.
Third, I accept that the accused had no direct warning that he was at risk of falling asleep by experiencing drowsiness. The accused gave evidence, which I accept for the reasons outlined earlier, that he was not feeling any more tired during this shift than any other night shift, and he was not feeling fatigued or drowsy. As to the accused’s statements to Mr Albury that he ‘thinks he fell asleep’ and that he ‘stopped at Port Wakefield and got a coffee to keep me going’, I consider it tenuous to infer from those statements that at a time prior to the vehicle leaving the bitumen road, the accused in fact realised that he was so tired or fatigued that he was at risk of falling asleep. I consider the accused’s statements to be equally consistent with him surmising as to the cause of the vehicle rollover, in the context of there being no other explanation apparent to him, and expressing his surprise as to the accident given that he had stopped at Port Wakefield for 15 minutes before resuming his journey. Similarly, I consider the accused’s statements to Constable Davies and Sergeant Mowday that he ‘fell asleep’ to be equally consistent with the accused surmising as to the cause of the vehicle rollover…
Finally, I cannot exclude as a reasonable possibility that the accused was tired, but not significantly tired or fatigued, and fell asleep without warning because of an undiagnosed condition of sleep apnoea. I am satisfied on the evidence of Professor Reynolds that the accused was likely to have been suffering from an undiagnosed condition of severe sleep apnoea at the time of the accident; and that the accused, like other patients with severe sleep apnoea, did not know he suffered from the condition and did not necessarily experience drowsiness whilst awake.
And at :
In any event, I am also not satisfied that the prosecution has negatived the defence of honest and reasonable mistake. For the reasons outlined earlier, I accept the accused’s evidence that he did not feel drowsy or sleepy, and that he did not realise that he was at risk of falling asleep at any time that evening, and more particularly when driving towards the accident scene. On the basis of the accused’s account, as supported by the other evidence outlined earlier, I am satisfied that the prosecution has not disproved the accused honestly believed that it was safe for him to continue driving in his condition, and that he was not at risk of falling asleep. Moreover, I am satisfied that the prosecution has not disproved that he held this belief on reasonable grounds.
What was and what was not on trial
The relevant issue in this was whether Mr McLean knew or should have known that he was fatigued or likely to fall asleep whilst driving. There was nothing to warn him of that risk so his driving up until the moment he fell asleep was not ‘dangerous’.
In responding to comments that I have seen on this case it is important to understand what was not in issue. Mr McLean’s good character was relevant. His prior good standing and his reputation for not taking ‘short cuts’ helped Her Honour to accept his evidence that if he had felt tired, he would have stopped driving. Character goes to the weight to be given to his evidence, but it is not the case that a court is trying to determine if someone is a ‘good’ or ‘bad’ person. One report that I have seen says ‘The Judge found, as have all along, that Matt is an honest, hard working employee who did his best to fulfil his responsibilities on the night of the accident.’
That may be the judge’s conclusions but that was not the basis of the acquittal. The issue is not whether he was ‘an honest, hard working employee who did his best to fulfil his responsibilities on the night of the accident’ because a person doing those things might decide that he or she has to keep driving even though they were tired. Being ‘an honest, hard working employee who did his best to fulfil his responsibilities’ does not determine guilt or innocence of this crime.
Related to that comment, and also not on trial, was the rostering by South Australian Ambulance Service. As one correspondent wrote ‘Where is the lens on the employer’s responsibility in this sad case?’ The answer is ‘there is no lens on the employer’s responsibility’ and that is for two reasons.
First a court case is adversarial, it is not an investigation. It is not there to determine who is responsible, it is there to determine whether the Crown has proved the case it has brought against the accused. The accused in this case was Mr McLean; the issue was whether he knew he was tired or otherwise at risk of falling asleep.
Second, and importantly in this case, commentary has been to the effect that pressure on ambulance services, and ambulance officers, means they have to work long hours often with many hours of overtime (see Managing fatigue in country ambulance stations (November 28, 2020)). If Mr McLean had been overworked with too many shifts, not enough breaks and pressure to undertake overtime that might in some sense put a responsibility on the employer (eg under Work Health and Safety law) but that would not have helped Mr McLean. If his evidence had been ‘yes I was tired but that was because we’re so busy’ then he would, we can infer, have been convicted. His evidence was that he was not tired, that he had had ample sleep and that he only took overtime when he felt fit to drive.
In this case there was much discussion about the roster Mr McLean had worked, his sleep patterns (see - and -) and the effect of shift work on fatigue and sleep. Although people may not be good historians of their own sleeping his evidence was supported by mobile phone records showing his phone was not used when he said he was asleep, by evidence of his routine practices and corroboration by his wife. Mr McLean’s argument was, as it had to be, that he had had ‘ample’ sleep and was not tired on this shift.
It was in no-one’s interest to mount an argument that it was the rostering and work demands of SAAS that lead to Mr McLean being fatigued and therefore falling asleep. That argument would have meant Mr McLean was guilty of the offences charged. Mr McLean’s argument was that whilst of course shift work is disruptive, he was not unduly tired and by choosing to drive was not knowingly posing a risk to the community.
This is a decision of a trial court – it is a decision based on the facts and does not create a ‘binding’ precedent or statement of law (see Accessing a judge or magistrate’s reasons for decision (November 18, 2016)). If this matter had been determined by a jury all we would know is the result, not the reasons behind the jury’s conclusion. If it had been determined by a Magistrate, we’d probably only have the news reports. Because it was determined by a judge, without a jury, Her Honour’s reasons are published.
Mr McLean was acquitted because of the facts of his case. He did not feel tired, he was adequately rested, and he did not know of and had no reason to suspect that he was suffering from sleep apnoea. There was nothing to warn him that he was a risk to other users and prior to falling asleep he was not posing an undue risk. His driving up until that time was neither dangerous nor careless and so he was not guilty of the offences charged.
Mr McLean was not acquitted because he was ‘an honest, hard working employee who did his best to fulfil his responsibilities on the night of the accident’ nor was he acquitted because he was just doing his job and SAAS made unreasonable demands upon him but there was nothing he could do about it. SAAS were not on trial and the evidence was that within the roster and given the demands of the job, Mr McLean was able to adequately manage his fatigue and get ‘ample’ sleep. This is not the cause célèbre that some want it to be where there is an analysis of ambulance rosters or a critique of how SAAS, or ambulance services generally, manage fatigue.
This case was about Mr McLean and what he knew and how he felt. If it carries any message it is a message to paramedics, and other shift workers, that if you feel too tired to drive, you have to stop driving and if that means standing down or taking an ‘uninterruptible rest break’ (see again Managing fatigue in country ambulance stations (November 28, 2020)) then that’s what you have to do. There is nothing in this case to say ‘soldiering on’ when tired, either for the good of the service or the community, or to keep your job, will provide any form of defence should another ambulance officer fall asleep when driving their ambulance.
Hope that you are well. Thank you so much for your summation. I am sure this will have an impact on those whom, on reflection, have taken unnecessary risks.
The SA Ambulance Service’s service delivery model includes the embedded use of staff working overtime on days off. Indeed if all staff ceased making themselves available on days off, crewing levels would be compromised, and therefore service to the community compromised. It this this reliance on overtime, and under-resourcing generally, that is of considerable concern to the SA Ambos’ Union. The Union believes that the correct process for this tragedy was for the State Coroner to hold an Inquest to identify the real root cause.
If it was identified that the real root cause was SAAS resourcing, and that someone in Mr McLean’s position drove whilst overtired but because he knew that if he did not no-one else would and ‘service to the community’ would be compromised, then that person would have been guilty of the crimes charged. The root cause according to Mr McLean was his undiagnosed sleep apnoea. If the union want to argue it was something else then they want to argue against mr McLean’s interest.
Equally if staff making themselves available on days off when the shouldn’t is creating a risk they should, with the support of their union, stop doing it. Service to the community is compromised if overtired officers are driving vehicles in the early hours of the morning. When employees step up to fill the gap then there is little incentive on employers to do anything about it.
But remember IN THIS CASE Mr McLean’s defence was based on his evidence that he was not overly tired, had had sufficient rest, did not take overtime if he felt compromised and he had no warning that he was at risk of falling asleep. This is not the case to advance a case for better resourcing or rostering.
I find it somewhat bizarre that one of the reasons for his acquittal was on the grounds that he had ‘undiagnosed sleep apnoea’.
When I was diagnosed with sleep apnoea myself, it was made clear to me that as a holder of a motor vehicle driver’s licence, it was solely upon me to be fully aware of my own health, that there was no room for ‘undiagnosed’ health issues that cause traffic accidents and i could not have expected to be able to use it as a defence before it was indeed diagnosed.
In short, I was expected to have known about it, even if I didn’t.
How does this then add up with the matter above?
Chris, I assume that the person who gave you this advice was your doctor, not your lawyer. The answer is that what you were told doesn’t ‘add up’ with the decision in R v McLean. In R v McLean the judge set out the law that she was required to apply and applied it to the facts. You can read the law in her judgment or in my summary. If that law is inconsistent with what you were told, then what you were told was wrong.