SAVIETI v NEW ZEALAND POLICE [2021] NZCA 176

SAVIETI v NEW ZEALAND POLICE [2021] NZCA 176 [12 May 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA240/2019[2021] NZCA 176BETWEEN DAVID SAVIETIAppellantAND NEW ZEALAND POLICERespondentHearing: 22 February 2021Court: Courtney, Mallon and Wylie JJCounsel: P K Hamlin and M Pitch for AppellantB C L Charmley and M R L Davie for RespondentJudgment: 12 May 2021 at 11.30 amJUDGMENT OF THE COURTA The application to adduce further evidence is granted.B The appeal is allowed.C Mr Savieti's conviction for careless driving causing injury is set aside.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Introduction[1] David Savieti fell asleep while driving home from work. He crashed his carinto another car, injuring both himself and a woman in the other car and causingdamage to both cars. During his stay in hospital following the accident, he wasdiagnosed as suffering from obstructive sleep apnoea (OSA), a medical conditionwhich causes poor quality sleep and can lead to excessive daytime sleepiness. He didnot know he had this condition until this diagnosis.[2] Mr Savieti was charged with careless driving causing injury.1 Following adefended hearing in the District Court at Auckland before Judge Henwood, he wasconvicted and sentenced to 80 hours' community work and reparation of $665.50.2The District Court found that Mr Savieti was careless because, even though he did notknow he had OSA, he was driving when he would normally be having an afternoonnap and he should have had a nap before deciding to drive.3 An appeal againstconviction and sentence was dismissed by Lang J in the High Court.4[3] Mr Savieti was granted leave to bring a second appeal against conviction tothis Court.5 He contends that he was not careless because he was tired, as was normalwhen he drove home, but not sleepy. He also seeks leave to adduce further expertevidence about OSA. The respondent also seeks leave to adduce expert evidence inreply.The District CourtThe evidence[4] The prosecution evidence established that the accident occurred whenMr Savieti's vehicle, travelling in the southbound lane on May Road, Mount Roskill,veered to the right, crossing the centreline and into the path of a vehicle in thenorthbound lane.[5] Mr Savieti was taken to hospital. He suffered a cardiac arrest when he wasgiven pain relief for injuries suffered in the crash. He was resuscitated and placed inthe critical care ward for treatment and care. While in that care, it became apparent1 Land Transport Act 1998, ss 8 and 38.2 Police v Savieti [2018] NZDC 18395 [Conviction decision]; and Police v Savieti [2018] NZDC27284 [Sentencing decision]. There was no challenge to the reparation order either in the HighCourt or this Court.3 Conviction decision, above n 2, at [20].4 Savieti v Police [2019] NZHC 905 [High Court decision].5 Savieti v Police [2019] NZCA 421 [Leave decision]. Mr Savieti's application for leave to bring asecond appeal against sentence was declined.that he had severe OSA, which had not been diagnosed previously. He receivedtreatment for this and his injuries from the crash and was discharged a week later.[6] As part of his care in hospital, he completed the Epworth Sleepiness Score(ESS), which is a recognised self-appraisal questionnaire to assess sleepiness.Mr Savieti scored nine out of 24 on this questionnaire. The questions included howlikely he was to doze off or fall asleep when undertaking various tasks. He assessedhis chance of dozing as "never" when sitting and talking to someone, sitting quietlyafter lunch and when stopped in a car for a few minutes in traffic. He assessed hischance of dozing while lying down in the afternoon when circumstances permit as"high". Another set of questions asked how tired he usually felt. He answered that hewas "sometimes" bothered by fatigue, tired very quickly and felt mentally exhausted.He answered that he "regularly" felt physically exhausted.[7] Mr Savieti gave evidence in his defence. At the time of the accident he wasdriving home from his work as a stores supervisor at Auckland Hospital. He had beenemployed in that position for about three years and had worked at the hospital fornearly 20 years. In his work, he supervised five staff and his responsibilities includedchecking and putting away food for the hospital, ordering and rotating stock andtalking to supervisors. The job involved two to three hours of quite physical heavylifting but also some administrative tasks.[8] Mr Savieti's work hours were from 6 am until 2.30 pm, but on the day of theaccident he had worked until 3 or 3.30 pm. He had gotten up at about 4.30 to 5 am(he gets up early to find a park near the hospital) and had left the hospital to drivehome at around 4 pm. He remembered driving home along Sandringham Road,turning onto Stoddard Road and then turning onto May Road (this was about20 minutes into his drive home). After that he could not remember anything until hewoke up with a really sore chest and his face against the dashboard, and hearing peoplescreaming and yelling.[9] Mr Savieti confirmed that he was diagnosed with OSA when in hospital. Hewas put on a machine that helps him to breathe when he is sleeping. He no longerfeels fatigued like he used to. Before the accident and this diagnosis, he used to putthe fatigue down to his physical work at the hospital.[10] Mr Savieti was cross-examined about whether he had worked a particularlylong day on the day of the accident. He said that it was not unusual for him to workpast 2.30pm. He said it was just a normal day at work, but he "worked a little bitlonger" than he usually did. He had stayed on to help cook or clean as "we were shortthat day we're always short". It was put to him that, because it was a particularlylong day at work, he must have been more tired than usual. Mr Savieti said "it's justa normal day, just a little bit longer, just a normal longer day". In re-examination heexplained that he worked past 2.30 pm "[n]early every day, just because of our staffshortages". In answer to follow-up questions from the Court, he said he often worked"11 to 12 hours" and at the hospital "everyone works 12 hours, 14 hours the nursesdo more, the doctors and, yeah".[11] Mr Savieti was asked further questions about how he felt on the drive home.He said he was always tired when he finished work so he would probably have beentired on the day of the accident. When driving home, he would turn his music up andput the windows down to refresh himself after working. He usually felt alright drivinghome. When he left work that day he "just felt normal just the normal tiredness not really mentally tired just normal".[12] He was asked if he was feeling drowsy. He said he was not, and if he had beenfeeling drowsy he would not have driven. He explained:A. I always feel tired after work, just tired 'cos it's like a lot of physicalstuff I do, like, you're just, like, physical tired and then there's braintired, you know, like, I'd know if I was brain tired, I wouldn't havedriven my car.[13] He was cross-examined about this further:Q. So it's possible then that you don't remember feeling drowsy, youdon't remember the feeling of falling asleep prior to, because you lostthat memory?A. No, I know when I'm drowsy, like, I think just before that time I dida course and I was in a class, and the first class the teacher startedtalking [and I] just got drowsy straight away, like, he opened hismouth, and I know that feeling's different from, like, being physicallytired like where you can just keep going [14] Mr Savieti further explained that to him his "sleep felt normal". He confirmedhe had never had any previous incident of falling asleep without forewarning and thathe knew when he was about to fall asleep because it was a gradual onset. He said thatafter work he usually had a "light nap" at home and then he "just muck[ed] aroundafter that". He was asked if he got ready to go to sleep as soon as he got home torecover from his tiredness from the day. He said that he did not sleep every day whenhe got home, though he normally did. The cross-examination continued:Q. So isn't it fair then that on your drive home you're mentally expectingto take a nap in about 10 minutes?A. No.Q. Because you're sleepy?A. I'm never sleepy when I drive.A. I've been driving for, like, since I was 13 and I've never, ever fallenasleep, I've never felt like sleeping when I was driving.[15] It was put to Mr Savieti that he may have felt sleepy before the accident andjust failed to recall it. He said if he was feeling sleepy he thought he would have feltsleepy earlier (that is, before turning onto May Road, which was his last recollectionbefore waking up after the crash). He was asked again if he was feeling sleepy earlierand he replied "[n]o, I already told you no". He was asked again if, on the day leadingup to the accident, he was drowsy and did not recall it. He said he would have recalledit earlier on the drive, noting that the time from turning onto May Road to the crashwas 20 seconds.[16] The defence called expert evidence from Dr Andrew Veale. He is a specialistrespiratory and sleep physician with specific training in sleep disorders. Dr Veale readhis report as his evidence-in-chief. Amongst other things, this report recounted whatMr Savieti had told him, including that:(a) Mr Savieti finishes work at 2.30 to 3 pm and on the day of the accidenthad finished slightly later than usual at 3.15pm. He sleeps for two tothree hours when he gets home, then he potters about until he goes tobed at between 11 pm and midnight (so that he gets a total sleep timeof seven to eight hours in two blocks).(b) After the accident, workmates commented that he seemed to nod off atthe computer at work on some occasions but this had not been reportedto him previously.(c) He has always driven with the window down due to a claustrophobicfeeling (Mr Savieti is a large man and clinically obese). He alwaysplays loud music out of habit. He does not do either of these thingsbecause of sleepiness when driving. He has never had momentarylapses when driving.[17] Dr Veale advised that he had reviewed Mr Savieti's GP's records and there wasno reference to tiredness or sleeping issues in those records. Dr Veale considered thecar crash from falling asleep to be Mr Savieti's "first identifiable symptom" of OSA.[18] Dr Veale explained that Mr Savieti stops breathing or partially stops breathingwhen sleeping 114 times per hour, meaning his OSA was "very severe". He said thatMr Savieti would not be aware of these "events" (that is, his breathing stopping). Hewas asked how this disorder may have manifested itself in Mr Savieti's day-to-daylife. He said:A. It can range in a complete continuum from completely asymptomatic,no symptoms at all, right through to people with marked daytimesleepiness at times of low stimulation, right through to people whonod off repeatedly while driving or in the midst of conversation.[19] He was asked if, in a severe case, a person would have any warning beforenodding off when driving. Dr Veale said:A. It depends very much on prior experience. If I can use an example if you're in a lecture room in an afternoon, you can be aware of beingsleepy and then suddenly jerk awake. The next time that happensyou're aware that that feeling of sleepiness is likely to be followed byan episode of sleep so that you move around or get up and walkaround, but the first time [it] comes out of the blue, even though yourecognise prior tiredness. So the transition from wakefulness tofeeling sleepy is generally a slow process, but from feeling sleepy toasleep can happen instantaneously.[20] Dr Veale reiterated in answer to questions that the transition from sleepiness toasleep can be "very fast". He has seen drivers who had crashed their car from fallingasleep when they are 200 m from their home and can see their driveway. Dr Vealewas questioned whether this would be the case for people with the most extreme formof OSA. Dr Veale said that "[b]y far the majority of sleepy drivers don't have sleepapnoea and the bulk of patients with OSA don't get sleepiness" and "it's therecognition of the signs of an impending sleep which is the critical thing about whetheryou pull over or whether you continue to drive".[21] Dr Veale was referred to Mr Savieti's evidence that he had never nodded offwhile driving prior to this incident. Dr Veale said he had "no way to confirm or refutethat statement". He said it would not be surprising to him if someone, who had neverpreviously had any "microsleeps" or nodded off while driving, were to experience asudden onset of sleep while driving. He said he would expect someone in Mr Savieti'scase to be able to instantly fall asleep behind the wheel.[22] Dr Veale was pressed further on this:Q. So would it be fair to say that it is your conclusion that prior todriving he would have been sleepy and he would have been aware ofhis sleepiness?A. He wasn't by his own account, I have no way of judging given thevariability of how people feel with obstructive sleep apnoea of anyseverity.Q. But it is possible that people feel tired, people feel increasinglysleepy?A. Yes, that's the second most common reason that patients present forcare and attention.Q. And then fall asleep, or have a microsleep behind the [wheel]?A. Many do but not always. People sometimes just present because theyfeel tired and they're underperforming.Q. So just going back to Mr Savieti's case again, then wouldn't it be fairto conclude that it is likely that Mr Savieti while driving on thatafternoon would have felt sleepiness because he's not stimulated, notengaged, not particularly motivated and having finished a long day'swork causing physical tiredness?A. Whether it's likely or may have occurred are different statements. I can't answer the question of likelihood leading up to the crash.Q. So it would be an unusual case wouldn't it if someone was to fallasleep without any forewarning?A. Most people would get some forewarning, whether they understoodthat sleep was going to follow those signals or not depends onhistorical context.[23] Dr Veale was asked about Mr Savieti's ESS score. Dr Veale said that a personwho scored a 9 would not be referred to a public sleep service because his prioritywould be graded so low. He said the problem with the ESS is that there may be threereasons for a low score — (1) the person is not sleepy; (2) the person does not perceivehim or herself to be sleepy; and (3) the person is lying — and "we see all three ofthose".[24] Dr Veale was questioned further about whether Mr Savieti would have feltsleepy and would have known that. He said:I think that he would have felt sleepy in the lead-up to the crash, forewarningimplies that you know the consequences of the way you feel. I frankly feelthat in this case, but not in many others that I have looked after, this has beena very unfortunate first presentation of a recognisable symptom and sign ofthis very serious condition.He clearly was sleepy because of this blank period when driving downStoddard Road. Now, he may not have recognised that as sleepiness but Iwould have had I heard it as part of a consultation. I think he would have felttired, I am not certain that he would have known the consequence of thatfeeling.Decision[25] The District Court Judge who heard the evidence said the key question for herwas whether Mr Savieti was driving carelessly. In finding that he was, the Judgesummarised her reasons as follows:6[20] However, the defendant was clearly tired having done a longer shiftand been awake for nearly 11 hours and he made the conscious decision todrive at a time knowing he had not had his usual daily nap. Had he been actingprudently he would have had a sleep at work before heading off in his car todrive home. The Defendant is guilty of driving his vehicle when he was tiredand knowing that he was driving a time when he would normally be sleeping. He did not take a nap at his work place before commencing to drive therebynot being a reasonable and prudent driver.[26] In reaching this conclusion, the Judge did not refer to Mr Savieti's evidencethat he was not mentally preparing to take a nap. Nor did she discuss whether sheaccepted Mr Savieti's evidence that he felt physically tired, but not sleepy, when hewas driving home, nor what she made of Dr Veale's evidence that a person with severeOSA may not recognise that they are sleepy and that the transition from sleepiness toasleep can be instantaneous.High Court[27] In the High Court on appeal, the Judge considered that Mr Savieti's OSA didnot equate to an illness that suddenly caused Mr Savieti to lose consciousness after hehad begun driving. Rather, his OSA was a factor that contributed to his state of fatiguethat he must have been experiencing when he elected to drive home from work.7[28] The Judge said that Mr Savieti was inevitably tired by the end of each day.This was because of his OSA (which meant he did not wake up refreshed each morningand became progressively more tired during the day), and because of his work (risingearly and carrying out two to three hours of heavy manual labour followed byadministrative or clerical work). It was confirmed by Mr Savieti's evidence that hedrove home with the windows down and the music up to refresh himself and that heusually had two to three hours sleep when he arrived home.86 Conviction decision, above n 2.7 High Court decision, above n 4, at [28].8 At [29]–[31].[29] The Judge concluded:[32] I therefore consider it likely that Mr Savieti was regularly drivinghome from work in a state of fatigue that left him at risk of falling asleep atthe wheel. Mr Savieti might not have recognised that he faced this risk, butthe warning signs must have been there. The fact that he was obliged onoccasions to take active measures to combat his tiredness whilst driving istestament to that fact.[33] It is possible, as the Judge found, that Mr Savieti's later than usualdeparture from work on the day of the collision also played a significant partin the events that followed. By about 4 pm Mr Savieti would usually be athome asleep, and his body may have come to anticipate or depend on thatperiod of rest. Whatever the immediate cause or causes of his sleepiness mayhave been, I consider the warning signs would have been there for Mr Savietiif he had been prepared to recognise them. I therefore do not consider thatthis is a case where a sudden illness or unforeseen event has renderedMr Savieti unconscious at the wheel of his vehicle. Rather, he ignored signsthat he was becoming sleepy and continued to drive when a prudent andreasonable motorist would have pulled off the road to rest.[30] For these reasons, the Judge held that Mr Savieti was guilty of drivingcarelessly and thereby causing injury. He dismissed the appeal.[31] The Judge's reasoning therefore accepted that Mr Savieti might not haverecognised that he was tired. The Judge considered Mr Savieti was careless becausea reasonable person in his position would have recognised that he was tired. Inreaching this conclusion the Judge did not discuss why he formed this view, despiteDr Veale's evidence that it was not known whether Mr Savieti would have recognisedwhat he felt (physical tiredness from work) as sleepiness. Nor did he discuss thesignificance of Dr Veale's evidence that recognition depended on historical contextand that, in Mr Savieti's case, the accident was the first recognisable symptom.AssessmentThe law[32] A person drives carelessly if they do not drive with the degree of care andattention that a reasonable and prudent driver would exercise in the circumstances.9This is an objective test, but "in the circumstances" includes the circumstances of the9 Simpson v Peat [1952] 2 QB 24 at 27–28; followed in Police v Chappell [1974] 1 NZLR 225 at228.driver. As the case law has held, this means that when a person has an accident becauseof an illness or condition, whether the person was careless will depend on whetherthey reasonably ought to have driven given what they knew or ought to have knownabout their illness or condition.[33] For example:(a) Robinson v Glover:10 This case involved a driver who caused anaccident when he fainted. After the accident it was determined that hewas suffering from an infection. In the three days before the accident,he had felt unwell but had not fainted and had never before in his lifefainted. The High Court quashed the conviction, with the Judgesaying:11 I have some difficulty in conceiving that a reasonablyprudent man would, or that the appellant should, haveanticipated the possibility of his fainting. [The accident] was solely due to a sudden and unexpectedcondition which the appellant did not anticipate and whichneither he nor (as I think) any reasonable prudent man would,in the circumstances, have anticipated.(b) Police v Vialle:12 This case involved a territorial army corporal engagedin driving exercises. The corporal had had limited sleep at the time hewas ordered by his superior, a staff sergeant, to take over from anotherdriver who had become too sleepy to continue. The corporal said thatwhen he was given the order he "felt fine" and "able to drive" and didnot at any stage feel incapable of driving before he fell asleep andcrashed the vehicle. This Court upheld the High Court's decisionquashing the conviction, saying:13 whether there has been negligence or carelessness [when adriver falls asleep when driving] is a question of fact in eachcase, and here the evidence of the defendant, accepted by theDistrict Court Judge as a truthful witness, shows that he wasalive to the risk of drowsiness on the part of the drivers in the10 Robinson v Glover [1952] NZLR 669 (SC).11 At 672.12 Police v Vialle [1989] 1 NZLR 521 (CA).13 At 524.convoy but at all times thought himself fit to drive. Let it berepeated that he has not been found to have been unreasonablein having that belief.(c) Waugh v James K Allan Limited:14 This case involved a lorry driverwho had been subject to gastric attacks which passed quickly after reliefby vomiting. He had vomited a few minutes before driving. Whiledriving, he suffered a coronary thrombosis and died, and thereby causedan accident. The lorry driver was found not liable for negligencebecause a reasonable man in his position would not have recognised hisgastric illness as the beginning of a coronary thrombosis.(d) Jones v Dennison:15 A driver of a vehicle caused an accident when hehad a blackout. The driver suffered from epilepsy. He had also suffereda coronary thrombosis twice in the past but had recovered each time.While he had also suffered ten blackouts in the ten months before theaccident, he did not know about them and his wife, who was aware ofthem, had concealed them from him. The Court upheld the decision atfirst instance dismissing the negligence claim because the driver wasnot, and could not reasonably have been, aware of his tendency to blackout.Application to the evidence[34] We consider the correct question was whether it was reasonably possible thatMr Savieti did not recognise that he was sleepy when he was driving. If it was, thenthe next question was whether a reasonable person in his position would haverecognised that he was sleepy.[35] As to the first question, we consider it was reasonably possible that Mr Savietidid not recognise he was sleepy. It is reasonably possible that he put his feelings offatigue down to physical tiredness from work rather than a feeling of sleepiness thatwould make him prone to dozing off while driving. He had been working at thehospital for 20 years and had been in the stores supervisor position for three years. He14 Waugh v James K Allan Ltd [1964] 2 Lloyd's Rep 1 (HL).15 Jones v Dennison [1971] RTR 174 (CA).was unaware of having had any microsleep episodes at work and had never fallenasleep when driving home. He often worked past 2.30 pm and did not always take anafternoon nap, although he usually did. His ESS self-appraisal was consistent with hisevidence about how he likely felt on the day of the accident.[36] There was no credibility finding against Mr Savieti's evidence. It wassupported by the absence of any reference to sleepiness in his GP's records. It wasalso supported by Dr Veale's evidence. He said there is a continuum of those who arecompletely asymptomatic through to those with marked daytime sleepiness. He saidthat whether a person with severe OSA would have a warning before nodding off whendriving depended "very much on prior experience" (giving the example of nodding offin a lecture and the next time being able to recognise the signs before nodding off).He could not answer whether it was likely that Mr Savieti had felt sleepy before hecrashed implicitly, in context, because it was conceivable the he would not have feltsleepy despite the severity of his OSA.[37] As to the second question, we consider it was not established that a reasonableperson in Mr Savieti's position would have recognised that he was sleepy and at riskof falling asleep when driving. Dr Veale's evidence was that "given the variability ofhow people feel with [OSA] of any severity" he had no way of judging whetherMr Savieti would have been aware that he was sleepy. He explained that sometimespeople presented for care "because they feel tired and they're underperforming" ratherthan because they are feeling increasingly sleepy. He noted that one of the reasonswhy people in need of care have a low ESS score is that the person does not perceivehis or herself as sleepy.[38] Dr Veale thought it was likely that Mr Savieti was in fact sleepy in the lead upto the crash, but "forewarning implies that you know the consequence of the way youfeel". Dr Veale would have recognised the way Mr Savieti was feeling to besleepiness, but he did not say that Mr Savieti ought to have recognised this. Dr Vealealso considered it would not be surprising if Mr Savieti had experienced a suddenonset of sleep and said that the transition from feeling sleepy to asleep can beinstantaneous.[39] Given Dr Veale's evidence, and the absence of any contradictory expertevidence before the District Court, we consider it was not proven that Mr Savietishould have recognised that he was sleepy before the crash. We therefore would haveallowed the appeal even without the further evidence that the parties presented at thehearing before us.New evidence[40] For completeness, however, we discuss the further evidence the parties soughtleave to adduce. We are satisfied that the evidence of Dr Fenwick andDr Cramer Bornemann is fresh, credible and cogent and grant leave accordingly.16[41] Mr Savieti instructed Dr Peter Fenwick, a retired neuropsychiatrist fromLondon, who continues to hold a range of honorary positions. Dr Fenwick supportsDr Veale's evidence that a person with sleep apnoea may be sleepy but not recognisethat they are. He refers to literature to the effect that 25 per cent of sleep apnoeapatients do not feel sleepy, even though they are significantly sleepy.[42] Dr Fenwick also says that one of the consequences of prolonged chronictiredness, including due to sleep apnoea, is that it is normal for the person to feel tiredso that they no longer regard themselves as tired. He also says that microsleeps arevery common with sleep apnoea. He says people who are chronically sleepy may getlittle warning that a microsleep is likely to occur and may dip into alteredconsciousness without recognising that they are about to do so.[43] On the basis of Mr Savieti's evidence in court, Dr Fenwick's view is that it was"unlikely that although he was in fact tired, he would have realised that afternoon thathe would fall asleep as his subjective sleepiness awareness was the same as usual, thatis, almost non-existent".1716 Leave was also sought on behalf of Mr Savieti to adduce a report from Sabine Visser, a clinicaland neuropsychologist. Amongst other things, Ms Visser carried out tests to assess Mr Savieti'scognitive function and its impact on memory. Neither party relied on the report on the appeal. Wehave reviewed the report but agree with counsel that it does not assist with the issues that arebefore us on this appeal.17 Dr Fenwick also relied on a consultation he had with Mr Savieti and his brother. We have nottaken into account that information because it was not before the District Court and therefore itwas not subject to cross examination and was hearsay.[44] The respondent instructed Dr Michel Cramer Bornemann, a medical doctorbased in Minnesota, with particular expertise in sleep medicine. Dr CramerBornemann agrees that a microsleep can occur quickly but this is not always the case.He says:Mr Savieti [said] he [did] not recall having an awareness that he wasexperiencing any degree of sleepiness just prior to the [accident]. Thiscondition would then suggest that the [accident] might have been theconsequence of an episode of microsleep – a fleeting, uncontrollable, verybrief episode of sleep. Though these episodes may be of such abrupt onsetthat an individual may quickly drift asleep without realizing it, episodes ofmicrosleep occur most frequently when an already sleepy individual is tryingto fight sleep and remain awake. Whether Mr Savieti experienced an episodeof microsleep and thereby was unaware of his condition prior to the [accident]remains arguable. His experience may also be possibly explained by hisinability to recall his experience of sleepiness just prior to the [accident].Mr Savieti appears to have many conditions that may have pre-disposed himto amnesia or deficits in his ability to recall. (Emphasis in original.)[45] Dr Cramer Bornemann therefore accepts it is reasonably possible thatMr Savieti did not realise he was sleepy prior to having a microsleep although he alsosuggests reasons for Mr Savieti's lack of recall which he considers may be more likely.[46] Dr Cramer Bornemann accepts that individuals who suffer OSA "regardless ofseverity many not necessarily experience subjective sleep[iness". However, heconsiders Mr Savieti's ESS score is suspect, noting the severity of his OSA and thatby Mr Savieti's own account he had daily struggles as a result of poor quality sleep(including feeling physically tired, driving with the window down and the music upand taking afternoon naps).[47] Dr Cramer Bornemann does not consider that Mr Savieti was "habituated" tothe effects of chronic sleepiness. He goes on to explain that he considers it wrong todescribe someone as habituated to poor sleep:Q. You don't like the word habituate, can I ask you, do you not agree thatthis patient could have been so used to having poor sleep that he didn'trecognise any of the symptoms that you have been listing, such as thenaps, the tiredness, the window [down], the music up ?A. So is he tolerating this degree of sleepiness, as many of us do in ourculture, I agree that he is tolerating it, he may not appreciate theimportance of these symptoms, but I don't agree with the habituationaspect of this, to me habituation is if you have anxiety for whateverreason, so habituation is learning to deal with emotionalregulation, but you can't habituate aspects of our being that arenecessary for survival, whether it's a minimal degree of chloric intake,minimal degree of hydration and minimal degree of sleep, these areall biologic imperatives, and so he may have tolerated it buttechnically he didn't habituate to it, these symptoms were therewhether he recognised or chose not to act upon them.[48] Dr Cramer Bornemann later says another word for "tolerance" might be"acceptance". However, it is clear from his evidence that, whether it is better describedas habituation, tolerance, or acceptance, he accepts that a person might not recognisethe symptoms. He goes on to say that he suspects Mr Savieti was sleepy but "did notappreciate the circumstances of his degree of sleepiness". That may well have beenthe case, but that does not mean that a reasonable person in Mr Savieti's circumstanceswould have appreciated his degree of sleepiness.[49] The further expert evidence therefore does not alter our conclusion that theappeal should be allowed. The evidence does not establish beyond reasonable doubtthat Mr Savieti was careless in driving on the afternoon of the accident. It wasreasonably possible on the evidence before the District Court, and confirmed by theexpert evidence adduced on the appeal to this Court, that Mr Savieti did not realise hewas sleepy when he drove that day. It was not established on the evidence before theDistrict Court, nor by the expert evidence adduced on the appeal to this Court, that areasonable person in Mr Savieti's circumstances would have realised that he wassleepy when he drove that day.Result[50] The application to adduce further evidence is granted.[51] The appeal is allowed.[52] Mr Savieti's conviction for careless driving causing injury is set aside.Solicitors:Crown Law Office, Wellington for Respondent