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Jail for motorist, 84, who killed cyclist after being told not to drive due to failing eyesight

John Johnstone had twice been told to give up licence in months before crash near Aviemore that claimed Hanno Garbe's life...

An 84-year-old motorist who killed a cyclist after he continued to drive despite twice being told to surrender his driving licence due to his failing eyesight has been jailed for 32 months.

Sentencing John Johnstone at the High Court in Edinburgh, Lord Fairlie said that only a custodial sentence was suitable, reports BBC News Scotland.

Johnstone, from Kingussie, last month admitted causing the death by dangerous driving of 57-year-old Hanno Garbe near Aviemore in March last year.

The judge, who banned Johnstone from driving for five years and four months, told him that had he not pleaded guilty and been convicted by a jury, he would have been sentenced to four years’ imprisonment.

He added: “You continued to drive a motor car when it was plainly dangerous for you to do so.”

Speaking in mitigation on behalf of Johnstone, defence solicitor-advocate Marco Guarino said: "It is difficult to underestimate how hard it has been for him to come to terms with what has happened. It has had a profound effect upon him.

“He has indicated to me that he wishes to apologise most profoundly to Mr Garbe's widow and his extended family.”

He said that his client had passed his driving test in 1958 and head no prior convictions and unsuccessfully sought to convince the judge that it was a “very unique case” and that a custodial sentence should not be handed down.

“He has not driven since, his licence has been revoked and there is no prospect of him ever driving again,” he said.

However, the judge insisted that only a prison sentence was appropriate given that Johnstone had twice been told not to drive due to the deterioration in his vision.

Mr Garbe, who worked as a sales manager and had moved from Germany to the Aviemore area with his wife Dagmar in 2007, died of head injuries at Raigmore Hospital in Inverness.

Following the crash on the B9152 near Loch Alvie, a roadside eye test carried out by police found that the driver was only able to read a registration plate from a distance of 4.8 metres, instead of the 20 metres required by law.

Johnstone, who said that he had not seen the cyclist, had previously been told by optometrist Ellen Torrance during an annual eye examination at Specsavers in Inverness in October 2018 not to drive because he had cataracts in both eyes.

At his trial last month, advocate depute Alex Prentice QC told the High Court: “The accused was aware that he could not drive until after a successful cataract operation. As at March 4 in 2019 he had not had the operation.”

“He stated he was struggling with watching television, following the ball when playing golf and also driving.”

“At the conclusion of the eye examination Ellen Torrance told the accused that he had a big drop in his distance vision and a cataract in his right and left eyes.”

“She concluded the accused did not meet the driving standards and told the accused he could not lawfully drive, must not drive and must notify DVLA of his condition.”

Two months later, he attended an eye clinic at Raigmore Hospital, which reached the same conclusion.  

As in England & Wales, while medical professionals such as GPs in Scotland can advise someone to surrender their driving licence to the Driver and Vehicle Licensing Agency as a result of health conditions including poor eyesight, they cannot compel them to do so.

In its webpage entitled Surrendering your driving licence, the government says:

There’s no legal age at which you must stop driving. You can decide when to stop, but medical conditions can affect your driving and might mean you have to give up your driving licence until you can meet the medical standards of fitness to drive again.

When you decide to stop driving or are advised by your doctor to stop you’ll need to tell DVLA and send them your licence.

Simon joined road.cc as news editor in 2009 and is now the site’s community editor, acting as a link between the team producing the content and our readers. A law and languages graduate, published translator and former retail analyst, he has reported on issues as diverse as cycling-related court cases, anti-doping investigations, the latest developments in the bike industry and the sport’s biggest races. Now back in London full-time after 15 years living in Oxford and Cambridge, he loves cycling along the Thames but misses having his former riding buddy, Elodie the miniature schnauzer, in the basket in front of him.

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38 comments

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hawkinspeter | 3 years ago
1 like

Statistically, old people aren't a big problem when driving as they tend to go slower and use known routes. Obviously there comes a point when failing faculties make even slow driving dangerous.

When cycling, I'm more anxious around younger drivers than older ones. The problem is when the younger drivers drive emotionally and get extremely angry if anyone criticises their skill or gets in their way.

What we need is some kind of emotional aptitude test for drivers. I'd suggest make it a computer based test of e.g. highway code signs, but have the computer be deliberately slow and have the keyboard/mouse malfunction slightly. Then, the people who get irate with the computer are banned for 6 months.

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Simon E replied to hawkinspeter | 3 years ago
0 likes
hawkinspeter wrote:

Statistically, old people aren't a big problem when driving as they tend to go slower and use known routes. Obviously there comes a point when failing faculties make even slow driving dangerous.

When cycling, I'm more anxious around younger drivers than older ones. The problem is when the younger drivers drive emotionally and get extremely angry if anyone criticises their skill or gets in their way.

By 'younger' I take it you mean anyone under 70 years of age. There are an awful lot of angry gammons with road ownership issues out there.

hawkinspeter wrote:

What we need is some kind of emotional aptitude test for drivers. I'd suggest make it a computer based test of e.g. highway code signs, but have the computer be deliberately slow and have the keyboard/mouse malfunction slightly. Then, the people who get irate with the computer are banned for 6 months.

Sounds good. The snag is that, once word gets out that all they have to do is be calm during the brief test, then they're free to take it out on the first cyclist they encounter.

I've long argued that a simple eye test - not one requiring an optometrist but a reading chart in subdued lighting* and some other items at a greater distance - should be compulsory for every driver. 5 year intervals?

* I found that my ability to read road signs etc got worse towards dusk and an eyesight test showed that it was just about poor enough to warrant specs. Without them I can see objects (cars, people, cats, potholes) fine, they're just a bit fuzzy, but I'd rather be sure I'm seeing everything I should so I always wear them to drive now.

My Dad's hazard perception and awareness of speed limit changes etc got worryingly bad in his late 70s and it was a relief when he voluntarily accepted that he didn't feel safe any more. We wished he'd done it sooner and it was never an easy conversation.

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hawkinspeter replied to Simon E | 3 years ago
3 likes

I think it's the newest drivers who are most likely to crash, but as you say, middle-aged rage seems to be ubiquitous in drivers.

I'm sure we can come up with other rage tests:

  • have some teenagers walk slowly in front of them (spread out in a line, blocking the pavement) as they approach the test centre.
  • ask them about Brexit
  • test them driving behind a wobbly 6 year old on a bike

Maybe it just needs to be a Voight-Kampff style test:

  • Describe in single words only the good things that come to mind about squirrels
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qwerty360 replied to Simon E | 3 years ago
4 likes
Simon E wrote:

I've long argued that a simple eye test - not one requiring an optometrist but a reading chart in subdued lighting* and some other items at a greater distance - should be compulsory for every driver. 5 year intervals?

Given eye tests are relatively cheap and can detect several other health issues early (diabetes, high blood pressure) before other symptoms trigger investigation, we should be requiring a full optometrists eye test every 5 years to drive anyway. (even if we stop subsidising them with overpriced glasses, it is still a rounding error on car running costs...)

The dvla should only get a report that states fit to drive, unfit to drive, or fit with restrictions (e.g. wearing glasses or not at night) and retest frequency if there are restrictions. I wear glasses, so should have it retested every 2 years currently (sight stable, hasn't changed in a while), but 10 years ago needed yearly eyetests, and will probably need increasing frequency as I get older...

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Simon E replied to qwerty360 | 3 years ago
1 like
qwerty360 wrote:

Given eye tests are relatively cheap and can detect several other health issues early (diabetes, high blood pressure) before other symptoms trigger investigation, we should be requiring a full optometrists eye test every 5 years to drive anyway. (even if we stop subsidising them with overpriced glasses, it is still a rounding error on car running costs...)

The dvla should only get a report that states fit to drive, unfit to drive, or fit with restrictions (e.g. wearing glasses or not at night) and retest frequency if there are restrictions. I wear glasses, so should have it retested every 2 years currently (sight stable, hasn't changed in a while), but 10 years ago needed yearly eyetests, and will probably need increasing frequency as I get older...

Good points.

It could work like MoT stations, which have automatic access & online updating - they can update each driver's DVLA record as soon as the test is done. Each will then have a test history with dates and outcome of each one. This information would be available to the police if they had reason to stop the driver.

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Jetmans Dad replied to Simon E | 3 years ago
1 like
Simon E wrote:

I've long argued that a simple eye test - not one requiring an optometrist but a reading chart in subdued lighting* and some other items at a greater distance - should be compulsory for every driver. 5 year intervals?

There is already half a mechanism in place to do that. Drivers now have to renew their licences every 10 years. At the moment, all you need to do is complete and submit a form online and provide an up to date photo. 

Personally I would start requiring drivers to submit proof of having passed authorised vision and highway code tests within the three months leading up to renewal in order for the renewal to be granted. 

It won't even cost the government that much in cash terms. Written tests are required to get the licence in the first place, so the infrastructure exists to carry those out officially, and an Optometrists certification that the official vision test has been passed can't be that hard to set up. 

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Grahamd | 3 years ago
3 likes

I have long been an advocate that whenever people renew their driving licence with a new photo every 10 years then this opportunity should be used to check people have the required mental and physical ability to drive. Yes this would cost money and administration but given people accept the need to pay to renew their passports every 10 years then am sure this would be palatable to most. More importantly it would move away from the current right to drive expectation and create a culture that recognises that licences always have a finite term.

Notwithstanding this we need far greater police activity and prosecutions such as this to send clear messages to those who show total disregard to others. This needs to be coupled with far greater public transport however so that there is an alternative to our car centric culture. 

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Jimmy Ray Will replied to Grahamd | 3 years ago
1 like

Taking this a tad further, how's about this for an idea... 

From the age of 60, a mandatory retest every five years. This to also include a mandatory passing of an eye test. 

This five year retest should also be applied to anyone (at any age) with six or more license points on their driving licence and / or who have been involved in two or more car insurance claims within a 24month period. 

Look at allocation of driving penalty points and insurance claims as an indicator for below standard driving and take pro-active action to check. 

Means a shift away from the current 'right to drive' as apposed to 'earned priviledge'

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taberesc | 3 years ago
3 likes

In my opinion there needs to be an upper age limit on being able to drive. Just a few weeks ago a 93 year old mounted a pavement in Edinburgh and killed a toddler. Eyesight is just one factor affecting your ability to drive, there could be any number of diagnosed or undiagnosed issues going on affecting motor skills, reaction times etc. 75 seems like a sensible age to hand over your licence.

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mike the bike replied to taberesc | 3 years ago
5 likes
taberesc wrote:

 ...... 75 seems like a sensible age to hand over your licence. 

And I can guarantee you will hold this opinion right up until your 74th birthday.

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ktache replied to mike the bike | 3 years ago
0 likes

Unless of course you are also a victim of an old person who has lost the ability to control a machine that allows them to move a huge lump of metal at speed.

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John Smith replied to taberesc | 3 years ago
3 likes

The issue isn't age as such, but doctors unwillingness to refuse to revoked licences for medical reasons. Sterling Moss continued to race, and hold a racing licence, until he was 81. Some people are dangerous at a younger age. My mother in law is 61 and has slowed down and become less confident in her driving over the past few years and should quit driving soon. My mother who is 73 is absolutly fine, and is aware of her slowing reactions so leaves extra breaking distence and is absolutly safe, and is probably much safer than many much younger drivers who tailgate and drive as if there is nothing round the corner.

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Zigster replied to John Smith | 3 years ago
1 like

My mother is 76. She is a lot more cautious driver than she used to be but I've no reason to believe she isn't a safe driver.

My in laws are 80 and 76.  They are both more cautious than they used to be but I've seen no evidence they are no longer safe drivers.

My wife's aunt is 79 and is blatantly an unsafe driver.  She has been told this several times, and recently she wrote off her car reversing out of her son's drive by mistaking the brake and accelerator pedals.  Thankfully, she was only bruised and no one else was injured.  To my horror, she went straight out and bought a new car and carried on driving.  Following a very recent fall, she has now been persuaded to stop driving but I was surprised (and appalled) that other members of the family weren't taking it seriously prior to that - "We have suggested she thinks about stopping driving,  but she doesn't know how she will get to the shops.",  etc. "Get a fucking taxi rather than kill someone!" didn't seem to persuade them how serious it was. It could have been her sent to jail for several years which would have devastated the whole family, even before considering the family of whoever she might have killed.

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Mungecrundle replied to taberesc | 3 years ago
2 likes

I remember Logan's Run when it was at the cinema. At that time, sending the oldies to carousel at the age of 30 seemed perfectly reasonable. Now I'd be the old man living in the ruins with cats.

An age cutoff is arbitary, we all know people who are unsafe to drive at any age and older people who are still perfectly competent. Mandatory retests are a good idea and should be seen as a cost of driving which would for many people make giving up the car for economic reasons and using taxi or public transport a more attractive option.

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RoubaixCube | 3 years ago
4 likes

Sad to see such an elderly gentleman of his age in jail. He really should be enjoying life, golfing, fishing and spending time with his grand kids rather than rotting in a jail cell but hopefully more lives will be saved as a result of his incarceration.

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ktache replied to RoubaixCube | 3 years ago
4 likes

If only he had listened to the experts who had knowledge of his eyes and his ability to see, or he had actually thought of the danger that he was while in control of a large vehicle.

I feel more for the family and friends of Hanno Garbe.  Whose life was cut terribly short by this selfish, mostly blind, old man

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FluffyKittenofT... replied to ktache | 3 years ago
1 like

A sensible system would have spared both of them from the concequences of the old geezer's foolish selfishness.  By obliging medical professionals to report it when someone is clearly medically-incabable of driving safely.

  There are 'safeguarding' laws that impose obligations on professionals to report when someone is a danger to others in other contexts, why not for this also?

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Simon E replied to ktache | 3 years ago
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I'm with you ktache, but a prison sentence seems pointless and unnecessary for an 84 year old without previous convictions. I think a lot of people have a very poor perception of the great harm it invariably does and in a case like this serves no real purpose.

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Rich_cb replied to Simon E | 3 years ago
2 likes

This is a man who drove despite knowing it was illegal for him to do so.

He killed someone whilst driving illegally.

With his track record of complete disregard for the law do you think he's likely to abide by the terms of a driving ban?

The only way to ensure he doesn't drive again and potentially kill again is to send him to prison.

His age is irrelevant.

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hawkinspeter replied to Rich_cb | 3 years ago
2 likes
Rich_cb wrote:

This is a man who drove despite knowing it was illegal for him to do so. He killed someone whilst driving illegally. With his track record of complete disregard for the law do you think he's likely to abide by the terms of a driving ban? The only way to ensure he doesn't drive again and potentially kill again is to send him to prison. His age is irrelevant.

I agree - It's for the individual to decide if they can face up to the consequences of their actions. If you can't do the time, don't do the crime.

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Simon E replied to Rich_cb | 3 years ago
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Rich_cb wrote:

The only way to ensure he doesn't drive again and potentially kill again is to send him to prison. His age is irrelevant.

I disagree.

Prison is not a solution in cases like this, it's inappropriate and a waste of public money. We lock up far too many people who would be better handled by other means. But "lock 'em up" makes for a good headline (while doing nothing to deter others).

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Rich_cb replied to Simon E | 3 years ago
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So you would release a man with a documented history of driving illegally into the community with only a driving ban to protect said community?

He's ignored the law before. Why give him the chance to do it again?

This man has shown complete contempt for the law.

He represents a significant ongoing risk of reoffending.

He should be locked up for public protection. Public protection is a perfectly valid reason for incarceration.

As for acting as a deterrent, I think most 80 year olds would be absolutely terrified of going to prison.

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Simon E replied to Rich_cb | 3 years ago
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If prison worked as a deterrent then they'd be empty.

Again, many years of doing it has shown that, except in specific cases, putting someone like this behind bars is not a solution.

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Rich_cb replied to Simon E | 3 years ago
1 like

Slightly disingenuous reply.

If prison was a 100% effective deterrent they'd be empty.

If prison deterred any less than 100% of potential law breakers then they wouldn't be empty.

You also failed to address my main point.

The man had a track record of ignoring the law.

You'd trust him to abide by the terms of a driving ban?

I wouldn't.

A prison sentence for public protection is entirely justified in this case.

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Jimmy Ray Will replied to RoubaixCube | 3 years ago
0 likes

It is desperately sad isn't it, however really quite necessary. 

The fact is, he chose to drive despite knowing his eyesight was below the standard required. He did so as he thought he'd get away with it sure, but also, because he did not fear the potential consequences of his actions if not.

How often have you heard the line' he/she is so old, there really is no point sending them to jail', or 'at his/her age, any custodial sentence is a potential life sentence so not fair / valid'? The idea that our seniors don't pick up on these comments, and that this doesn't in turn influence their decison making / behaviour, is niaive to say the least. 

There has to be a valid deterrent, and something like this, should help make our society realise that its not OK to ignore laws -made to protect society- because it doesn't suit your personal situation. 

Total hyperbole, but you don't see people campaigning that Peado's have the right to maintain their sex life do you?

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Milkfloat | 3 years ago
6 likes

A life ban would also be appropriate, even just as a message to others.

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eburtthebike | 3 years ago
10 likes

Justice appears to be rather more followed in Scotland than England.

The law must be changed so that anyone found driving while knowing that they are not fit to do so is guilty of a serious crime, and opticians must inform the police of anyone they know who still drives when not fit to do so. 

I'm sure the government review of road laws etc etc.........

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geomannie 531 replied to eburtthebike | 3 years ago
11 likes

Compare. 32 months in jail vs "The Crown Prosecution Service has declined to take action". In both cases a cyclist died

https://road.cc/content/news/lorry-driver-killed-cyclist-after-rolling-t...

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wtjs | 3 years ago
11 likes

It does appear that the Scottish Police/ Procurator/ Scottish court is considerably better for our purposes than English Police/ CPS/ English court- which is essentially an excuse factory for guilty drivers. 

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giff77 replied to wtjs | 3 years ago
2 likes

This is a rarity!  A few years back a motorist got off very lightly for killing a cyclist at a junction. He already had a dangerous driving charge under his belt! 

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