A distinction should be drawn between conditions which unforeseeably overtake a driver and those which are clearly foreseeable and ought to be avoided. In Hoeta v MOT 19/4/91, Thomas J, HC Auckland AP29/91, H was convicted of careless use causing injury despite her defence that she suffered a temporary blackout because she was menstruating. The evidence showed that this condition had manifested on occasion over the previous 9 years. Thomas J considered that in such circumstances a prudent motorist would have abstained from driving. The appeal was dismissed.
(7) Unforeseen medical illness
Crashing a vehicle due to the sudden onset of a previous unknown medical condition is a defence that can be put forward to careless driving or operation of a motor vehicle. In Hayes v Police 7/7/09, Fogarty J, HC Christchurch CRI-2009-409-5 the appellant claimed the District Court Judge had almost reversed the burden of proof when discounting the defence of a “sudden turn” or dizzy spell due to either epilepsy or a middle ear problem. The appellant’s doctor gave evidence at the defended hearing and said it was unlikely that he had an epileptic episode but that it was possible that he had dizziness caused by his middle ear problem. The District Court Judge rejected the defence, but on appeal the High Court agreed with the appellant that the District Court had almost reversed the onus by requiring the appellant to prove that he had a dizzy spell, rather than dealing with the issue of whether his evidence created a reasonable doubt. Fogarty J allowed the appeal against conviction and did not order a retrial.