Driving Without Due Care (Careless Driving) in Adelaide
A minor lapse can carry fines, demerit points, or worse. Our lawyers aim to reduce penalties, protect your record, and keep you on the road. Book a free 30-minute consultation.
What is Driving Without Due Care?
Driving without due care or attention (also known as careless driving) is an offence under section 45 of the Road Traffic Act 1961 (SA) and is sometimes called “careless driving”.
It applies when a driver fails to exercise the level of caution expected of a reasonably prudent driver. This can include momentary lapses or minor negligence, even if no accident occurred.
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A person who was negligent in any way in driving a motor vehicle may be charged with driving without due care. Not every small error automatically means a person was “driving without due care”.
We will guide you through the entire court process, minimise fines, demerit points, disqualification periods, challenge evidence and police procedures.
Elements of Driving Without Due Care
The Prosecution must prove beyond a reasonable doubt that:
- The individual drove a vehicle;
- The vehicle was being driven on a road; and
- The driver drove without due care and attention; or drove
- Without reasonable consideration for other persons using the road.
Penalty & Disqualification
Penalties for driving without due care may range from small fines to imprisonment or extended licence disqualifications, especially in aggravated circumstances.
- No set maximum — but typically up to $2,500, 3 demerit points, plus possible licence disqualification.
- No mandatory disqualification — however, the court may impose a disqualification if warranted pursuant to section 168 of the Act.
- It is possible (though unusual) for the court to record no conviction or a non-conviction penalty (Roder v Police [2000] SASC 432 MVR 359).
- May also trigger a demerit point disqualification if you exceed 12 demerit points, or breach licence conditions (as a probationary or provisional licence holder).
- If the risk posed is deemed serious, the charge may be dangerous driving instead.
| Offence | Fine | Imprisonment | Disqualification | Demerits |
|---|---|---|---|---|
| Basic Due Care | $2,500 | If aggravated | Discretionary | 3 |
| Aggravated Due Care | 1 Year | 6 Months | 3 |
We get charges dropped and can negotiate with the prosecution or persuade the court to proceed without conviction for careless driving, including aggravated driving without due care. Book Your Free 30-Minute Consultation.
Aggravated Driving Without Due Care
Driving without due care carries more severe penalties if found to occur in aggravated circumstances, such as:
| Drink Driving | Drug Driving |
| Driving Unlicensed | Driving Disqualified |
| Driving Under the Influence | Driving at excessive speed (45km/h over) |
| The offence caused serious harm or death to a person | Driving a stolen motor vehicle or without the owner’s consent |
| Committing the offence while attempting to escape a police pursuit | Committing the offence knowing there were one or more passengers in the vehicle |
| Committed the offence whilst holding a provisional licence, probationary licence or learner’s permit. | |
Proving Specific Aggravated Offences
Aggravated by Blood Alcohol Concentration
For an offence of aggravated due care, aggravated by a blood alcohol concentration, the prosecution are required to prove:
- that the defendant drove a vehicle without due care or attention or without reasonable consideration for other persons using the road (the basic due care offence); and
- at the time of committing the due care offence there was present in his or her blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood – the circumstances alleged to aggravate the offence.
Aggravated by Driving While Disqualified
For an offence of aggravated due care, aggravated by driving while disqualified, the prosecution are required to prove:
- that the defendant drove a vehicle without due care or attention or without reasonable consideration for other persons using the road (the basic due care offence);
- that the defendant was, at the time of the offence, driving a vehicle;
- that the defendant drove knowing that he or she was disqualified, under the law of this State or another State or Territory of the Commonwealth, from holding or obtaining a driver’s licence or that his or her licence was suspended by notice given under this Act.
Aggravated by Attempting to Escape police
For an offence of aggravated due care, aggravated by attempting to escape police, the prosecution are required to prove:
- that the defendant drove a vehicle without due care or attention or without reasonable consideration for other persons using the road (the basic due care offence);
- that at the time of committing the due care offence the defendant was in the course of attempting to escape pursuit by a police officer.
Penalty & Disqualification
- Up to 12 months imprisonment
- Minimum disqualification – 6 months, however there is no upper limit and the Court may disqualify a driver far beyond 6 months if it sees fit (Thomas v Police [2010] SASC 18).
- Courts consider the seriousness of injury, the degree of driver’s blameworthiness, and any prior offences.
Unlike other traffic offences, the disqualification period cannot be be mitigated or substituted, meaning you must lose your licence at least for 6 months. However, the 6-month disqualification is not mandatory if the aggravating circumstances were that the offence caused harm to a person if that harm fell short of serious harm.
Defences
Latent Defect
It is a defence where a defendant was deprived of the control of the vehicle without fault by reason of a mechanical defect in the vehicle (R v Spurge [1961] 2 All ER 688).
The onus is on the defendant to raise the issue, but it is then for the prosecution to negate any reasonable possibility of it having occurred: (MacDonald v Slape (1987) 6 MVR 56); (Hihimanis v Police [2006] SASC 2).
However, the driver’s claim that “I knew of nothing wrong” must be credible and consistent with no other explanation for the accident that suggests ordinary negligence (Aitken v Police [2003] SASC 22).
Reliance on Others
A driver cannot delegate the duty to drive carefully, but if they reasonably rely on signals or instructions from another driver or traffic official, it may be relevant to whether the standard was breached (O’Brien v Scotland (1972) 4 SASR 411).
For instance, if a motorist “waves you in” to cross, you still must exercise caution, but reliance on that wave can be a factor.
Defences of Necessity
A narrower defence, but if a person drives carelessly in order to avoid an imminent threat of death or serious harm (for instance, escaping an assault or an out-of-control bushfire), the defence of necessity may arise.
However, courts strictly interpret whether the driver’s response was proportionate and there was truly no reasonable alternative.
If the driver’s response was disproportionate or created greater risk, the necessity defence will fail (Police v Bayley [2007] SASC 49).
Honest and Reasonable Mistake of Fact
Although section 45 is “strict” in the sense that it does not require a guilty mind (means rea), an honest and reasonable mistake of fact can still exculpate a defendant if they genuinely believed on reasonable grounds in circumstances which, if true, would mean their conduct was not careless.
The onus is on the Prosecution to exclude such a mistake beyond a reasonable doubt (Jiminez v The Queen (1992) 173 CLR 572).
In practice, this is rarely successful except in narrow factual scenarios. For example, a driver’s genuine belief that the car was roadworthy.
Avoiding Double Punishment
If someone is charged with an aggravated “due care” driving offence, but they have already been charged with other related offences—such as fleeing police, driving without a valid license, speeding, drink driving, or driving under the influence, they may be able to use a legal argument called autrefois convict.
This essentially means they can not be punished twice for the same offence, protecting them from facing multiple penalties for overlapping offences.
“Without Due Care”
Driving “without due care” means without adequate caution in all of the circumstances. It is the standard of the average person who has regard for the safety, and the rights of others.
This is an objective standard of care, meaning: “Would a reasonably prudent driver, faced with the same conditions, have driven differently? The law often refers to this as “defensive driving” (Stoeckel v Harpas (1971) 1 SASR 172), requiring you to anticipate potential hazards, not just react to them.
(If you fail to notice or advert to risk factors that a normal prudent driver would have seen, you might be found “without due care,” even if you genuinely did not realise it.)
It is not an issue of any liability of a driver to avoid a collision either, nor is any negligence of another driver which may have contributed to a collision relevant. The law requires driving in a reasonably competent, alert and defensive manner and there is no need for any accident to be caused.
Minor Driving Errors
A minor and common error judgment causing an accident however does not necessarily indicate a lack of due care, nor is an error of judgment in an emergency situation. The mere fact that the driver should have been more vigilant did not establish that the driving went beyond inadvertence and did not constitute driving without due care. However, if the risk posed is deemed serious, the charge may be dangerous driving instead.
For example, in Lajos v Samuels (1980) 26 SASR 514, the driver’s reversing error was minor and not blameworthy. Contrastingly, Crispin v Rhodes (1986) 40 SASR 202 emphasises the Court’s high standard for “defensive driving”.
The Required Standard
What this prohibits is driving without observance of the standard of consideration for other road users that a reasonably prudent driver would observe in the circumstances, and it is no answer to the charge that the defendant was not aware of, or did not avert to, any inconvenience or risk from himself or herself to others.
“Without Reasonable Consideration”
Driving without reasonable consideration is another form of careless driving under section 45(1) of the Act. Here, the focus is on whether the driver’s conduct, objectively viewed, showed inadequate regard for the convenience or rights of others using the road.
Even if you did not realise you were creating a problem for others, you may be liable if a prudent driver would have. Here, a lack of awareness of inconveniencing or endangering others can suffice (Ladlow v Hayes (1983) 105 LSJS 205).
Book a Free 30 Minute Consultation
Driving without due care attracts demerit points, fines and even imprisonment. Book a free 30 minute traffic law consultation. Our Adelaide traffic lawyers can protect your licence, reduce penalties, and avoid imprisonment. We will give you advice, discuss the fee structure upfront and ensure you understand the costs and process involved.
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