Motorist who crashed while ‘admiring scenery’ loses appeal against dangerous driving conviction

Sheriff Principal Mhairi Stephen QC
Sheriff Principal Mhairi Stephen QC

A motorist found guilty of dangerous driving after crossing over onto the opposite carriageway while “admiring the scenery” and crashing into an oncoming vehicle has lost an appeal in which she claimed she ought to be have been convicted of the lesser charge of careless driving.

The Sheriff Appeal Court refused the appeal by Claire Lizanec after ruling that the sheriff’s assessment of her driving in the circumstances could not be faulted.

Sheriff Principal Mhairi Stephen QC, sitting with Sheriff Principal Craig Turnbull and Sheriff Michael O’Grady QC, heard that the accident occurred on the A1, the main trunk road between Edinburgh and Newcastle, in July 2014.

The appellant was driving her white Nissan Qashqai southbound on the 60mph-limit road south of Dunbar when at approximately 6.30pm she allowed her vehicle to cross onto the northbound carriageway and collided with an oncoming vehicle.

She failed to negotiate a sweeping right hand bend because she had been “admiring the scenery” and “beautiful weather conditions”.

The sheriff found that the appellant had “failed to maintain proper concentration” while driving and this had been a “more than momentary” lapse, as her vehicle had strayed so far over the line separating the carriageways that the oncoming van driver assumed she was overtaking.

The van driver was unable to avoid a collision, as a result of which the appellant and all three occupants of the van were injured and required hospital treatment.

The sheriff found that the sole cause of the accident was the appellant’s failure to drive her vehicle on the correct side of the carriageway as a result of allowing herself to be distracted – and in doing so she “recklessly created a danger” of a head on collision, which amounted to dangerous driving in terms of section 2 of the Road Traffic Act 1988.

However, the appellant challenged the sheriff’s assessment of her driving and argued that the sheriff, on the evidence, could only convict of a contravention of section 3, careless driving.

The solicitor advocate for the appellant argued that the “high test” for dangerous driving had not been met in the circumstances of this case.

The evidence pointed to there being a “loss of concentration” and even if the inattention was more than momentary it did not have the hallmark of recklessness which was necessary to find that the appellant’s driving was dangerous.

It was also submitted that the sheriff “erred” in taking account of the nature of road; traffic conditions and the speed that vehicles travel on that particular stretch of the A1, as these were “essentially neutral considerations” and the duty of the driver was the same irrespective of the road or speed limit.

But the advocate depute argued that the sheriff was “entitled” to find that the appellant’s inattention was more than momentary and was “sufficient” to meet the test that the appellant’s driving fell “far below the standard expected of a reasonably careful and competent driver”.

Refusing the appeal, the appeal sheriffs observed that the sheriff had “referred to and applied the correct test” for dangerous driving.

Delivering the opinion of the court, Sheriff Principal Stephen said: “The sheriff has made findings in fact and given a careful account of the evidence which supports these findings… The evidence clearly justifies the sheriff finding that the appellant had allowed herself to be distracted and therefore failed to concentrate on her driving.

“The appellant’s inattention led to a critical loss of concentration whilst negotiating the sweeping bend. The risk of collision and consequential injury is obvious. The sheriff’s assessment of the appellant’s driving having regard to the potential and actual dangers is one which, in our view, cannot be faulted.”

She added: “We do not accept the contention advanced on behalf of the appellant that the actual character of the road together with the volume and speed of the traffic on the A1 at the locus were neutral considerations when assessing the quality of the appellant’s driving.

“We are of the view that the sheriff required to take account of the entire circumstances, as he did, as they have a direct bearing on the potential hazards which a competent and careful driver would be aware of and would have regard to when driving a vehicle.

“In the circumstances of this case it was open to the sheriff to convict of dangerous driving.”

Copyright © Scottish Legal News Ltd 2018

Other judgments by Sheriff Principal Mhairi Stephen QC