Supreme Court DRIVER GUILTY OF NEGLIGENCE

Press, Volume C, Issue 29524, 27 May 1961, Page 15

Supreme Court DRIVER GUILTY OF NEGLIGENCE

A jury in the Supreme Court yesterday found Clifford Thomas Gundry, aged 52. a freezing worker, not guilty of driving his car in Russley road on March 19 w bile under the influence of drink to such an extent to be incapable of proper control of his car, thereby causing injury to Yvonne Kay Hart and Martin Slade Jones. The jury found Gundry guilty on an alternative charge of driving his car negligently, thereby causing injury to Yvonne Hart and Martin Jones. Mr Justice Richmond remanded Gundry in custody for sentence on a date to be fixed. The jury took two hours 40 minutes to reach its verdict. Mr C. M. Roper conducted the case for the Crown. Mr G. R. Lascelles appeared for Gundry.

When the trial resumed yesterday. David Gordon Leay, a doctor, said he examined the accused shortly after he was admitted to the Christchurch Hospital on the night of the accident. The accused had a laceration on the inside of the lip about IJin long which required several stitches. Cross-examined by Mr Lascelles, the witness said that the accused fainted twice before his examination and vomited half a litre of blood. He was bleeding internally from a hemorrhage above his stomach. The bleeding must have started before 10 p.m. It would have made him unsteady and a little weak about 10 p.m. Re-examined by Mr Roper the witness said that the accused’s internal bleeding was probably from a chronic or acute ulcer, and this bleeding point was probably set off from trauma from the accident, although the bleeding must have started before 10 p.m.

Tests At Station Peter Bromley Maling, a doctor, described tests given by him to the accused at the Central Police Station at 10.20 p.m. He thought the accused had had a fair amount to drink and was holding himself very well, but was unfit to drive a car The witness took a urine test from the accused. To Mr Lascelles, the witness said he was not aware the accused was suffering from an ulcerated stomach. He had questioned the accused closely about any previous history of illness, but the accused said he had had no illnesses. The accused was constantly swallowing blood from his cut lip, which was bleeding freely. “I think if he had a hemorrhage to the extent that he vomited half a litre of blood, that he would have shown some sign of internal hemorrhage when examined by me. He did not show any signs," the witness said to further questions. A clinical test of a person was not reliable beyond reasonable doubt in determining whether a person was intoxicated at any given time, the witness said. He said that, as a result of his reading, he understood that the urine test for concentration of alcohol was a reliable means of determining intoxication. Norman Patrick Alcorn, a Government analyst, said the accused's urine contained 300 milligrams of alcohol per 100 millimetres of sample.

Pathologist’s Evidence Dr. C. T. B. Pearson, a pathologist, said he had determined that the equivalent blood alcohol from the urine tests was 220 milligrams per 100 millimetres of blood. A person with that concentration of alcohol in the bloodstream would be unfit to drive a car.

Re-examined by Mr Roper, the witness said the accused had a congested face and inflamed eyes when he examined him. He did not think this consistent with an internal hemorrhage. He had seen two litres of blood vomited by a child after a nose bleed. Vomiting of blood did not necessarily mean an internal hemorrhage. He said that a British Medical Association committee had reported that the absolute limit of safety in driving was a concentration of 150 milligrams of alcohol per 100 millimetres of blood. Even the most hardened drinkers and most experienced drivers could not drive safely with a greater concentration of alcohol in the blood. Cross-examined, the witness said that there was a relationship between the alcohol in urine and blood in the urine. The B.M.A. had made no recommendation concerntag concentration of blood in the urine. He did not agree that there was grave danger of too much weight being given to alcohol in urine tests in determining the' question of fitness to drive.

Defence Case ” The defence case was that the cause of the accident was not intoxication, not negligence by some drunken driver, but a sudden illness to the accused while driving, something which could unfortunately happen to anyone. said Mr Lascelles in his opening address to the jury. The defence would call three medical witnesses. Dr. F L. Scott, who had dealt with hundreds of drunken driving cases as a police doctor, would say he attached no great importance to the urine test He would say that a urine test would not establish a degree of intoxication beyond reasonable doubt Dr. Scott would say, Mr Lascelles continued, that be placed reliance on clinical tests, but in cases where there was another illness, particularly where the effects of the illness might not show openly, he had always been unwilling to certify unfitness to drive. In all cases

where he had learned subsequently of illness at the time, he had altered his report so that he did not certify the driver as unfit to drive, as there was always a reasonable doubt that something other than alcohol had caused the driver's condition. Dr. P. J. Gormley, resident doctor at the Princess Margaret Hospital when the accused was admitted there, would give evidence of his fainting twice and vomiting blood, and his subsequent hemorrhages at the Christchurch Hospital. The witness would say that a person deteriorated progressively with continuing hemorrhages because of increasing loss of blood. The witness would say that a higher proportion of alcohol content in the urine could be caused by a hemorrhage if there was no further intake of alcohol after the hemorrhage started.

Mr G. W. Holland, the surgeon whose patient the accused became, would say the accused was most talkative. He would say that the possibility that the accused had suffered a first hemorrhage before 10 pun. could not be discounted. He would say the result of a hemorrhage could be a lessening in the amount of urine, with a consequent false picture of intoxication because of the relatively high proportion of alcohol content in a small amount of urine. The witness would say that the accused would not necessarily know he had had a hemorrhage. In his opinion, the worth of urine tests in determining whether a person was intoxicated at any given time was debatable. A hemorrhage while a person was driving would impair ability to control a car. It was a very strong possibility that the accused had had a hemorrhage about 10 pun. that day, the witness would say. Evidence on these lines was then heard.

To Mr Roper, Mr Holland said he thought that Dr. Maling, when he examined the accused an hour after the accident, could have wrongly diagnosed that the accused was intoxicated when he was in fact suffering the after affects of a hemorrhage. He would not say that Dr. Maling had been mistaken, but he could have been mistaken. To his Honour, the witness said that the accused could have had a hemorrhage large enough before the accident to make him feel faint and dizzy and veer from side to side of the road when driving. Addresses It was conceded that the accused was the driver of the car and that he caused injury to Miss Hart and Jones, but it was deneid that the accused's intoxication or negligence caused the injury, said Mr Lascelles in his final address. The defence case was that it was the accused’s sudden illness, a hemorrhage, that caused the collision. Illness. if proved, was a sufficient defence to the alternative charge of negligence, counsel submitted. The defence had brought positive evidence of those best qualified to judge, the doctors who dealt with the accused, that there was a strong probability that be had suffered a hemorrhage while driving. The defence did not contend that the accused had had nothing to drink, but denied he was intoxicated. He had driven all the way from Rakaia without attracting attention or mishap. If he had been drunk, the jury might well think an accident would have occurred much earlier. What happened immediately before the accident was consistent with the accused having a sudden hemorrhage. “You caii have no doubts that the accused that evening was a very sick man, unknown to himself, and you can also have no doubt that his sickness alone could have caused the accident,” counsel concluded. Mr Roper said the Crown had only to prove that the accused was materialy affected by liquor to impair his judgment in driving. It did not have to prove the accused was a lurching, slobbering drunk. Three witnesses at the accident. four police officers, and an experienced doctor all thought he had been drinking. All the police officers and the doctor thought him unfit to drive. Not one of them had noticed that the accused was ill, weak, faint, pale, or shocked. The accused himself had never once mentioned any of these symptoms, common to hemorrhages. even when interviewed in the hospital some davs later.

The only expert doctor called fa relation to alcohol tests, Dr. Pearson, had said the quantity of alcohol in the accused’s urine must have made him unfit to drive. The Crown did not dispute that the accused might have had a hemorrhage that night —after the accident, Mr Rooer said. The defence could not have it both ways; said Mr Roper. If the accused had in fact had a hemorrhage he should have stopped his car. The evidence was that he had swerved down the road for half a mile before the accident. and therefore he could be held negligent in failing to Mop when he first felt faint and weak.