Decision on Appeal by Tasmanian DPP
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Now the Sentence and Aftermath of Fatal Accident

Tim Ellis was sentenced on 23 December 2014 by the Hobart Magistrates Court to a 4 month suspended jail sentence and a 2 year ban from driving for his conviction of causing the death of Natalia Pearn through negligent driving.

It is understandable that the parents of the deceased woman would in no circumstances accept that their daughter’s death could be excused by a driver who had simply fallen asleep at the wheel. They argue that he must have known of his sleep apnoea and should have taken steps to prevent it from being a risk to other drivers on the roads. From a public policy perspective the Court may also have found it just too difficult to accept that Ellis was not conscious at the time of impact. Public policy may have dictated that he would have been aware of his sleep disorder and should have taken steps to prevent it from posing a risk to other road users. Irrespective of my speculations the Court found that Ellis was conscious immediately before impact.

What if a driver falls asleep without warning and without control and seconds later causes a fatal collision to occur? Should the driver, in those circumstances, be responsible or held to be negligent if a death occurs? From personal experience I can confirm that before my sleep apnoea was diagnosed I would sometimes fall asleep momentarily whilst driving. I had no warning of this microsleep. The lack of control I had over its happening alarmed me.

Even after my sleep apnoea had been diagnosed I would occasionally fall asleep in the morning at traffic lights whilst I was driving my daughter to school. I would ask my daughter to tell me when the lights had changed from red to green! Although I had not commenced using CPAP at this stage I had been using a prescribed mouth guard or “mandibular splint” to assist me in breathing at night. It did not provide me with any lasting relief as I was still mouth breathing. With hindsight I realize that I did not understand what my body needed to ensure that its blood enjoyed the requisite oxygen saturation.

Even when I used the CPAP machine to assist my sleeping I was ignorant of what was physiologically happening with my body when I breathed in a particular manner. In my experience it became essential for me to gain a basic understanding of how our body processes an intake of air and what needs to happen before the haemoglobin will act efficiently to release oxygen to our tissues and cells.

Returning to the Tim Ellis case it is unknown whether he was prescribed a CPAP machine and whether he had been using it. It is claimed that as much as 50% of prescribed CPAP users do not use it because of numerous problems encountered in relying upon it to assist sleep. What is also unknown is the level of understanding he had of what was happening to his body in terms of his oxygen saturation, his rate of breathing and its effect upon his respiratory health.

I hope that the publicity generated by this tragic case will lead to calls being made to both State and Federal Governments for funded clinical trials to be conducted regarding the effectiveness of CPAP machines and Buteyko breathing in addressing sleep apnoea. The incidence of 20% of road accidents being attributed to driver sleepiness and sleep apnoea being identified as an important cause of driver fatigue makes such a trial imperative. A 2003 article in the Medical Journal of Australia found that drivers with sleep apnoea were shown to have a 2 – 7 times increased risk of motor vehicle accidents compared with drivers who do not have sleep apnoea.

It is not hard to imagine the economic cost upon the public and private purse of our hospitals and the social cost upon our society if this health issue is not addressed via a properly resourced and funded clinical trial.

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