Evidence suggested Herbulot was likely to have suffered a medical event, rather than having deliberately driven into the playground or tried to take his own life.
Now, a coroner has recommended a law change that would require doctors to inform NZ Transport Agency Waka Kotahi if a patient becomes unfit to drive.
Today, Associate Coroner Jennifer Smith released her in-chambers findings into the Warkworth man’s death, determining the direct cause was drowning secondary to a motor vehicle crash.
Herbulot was of Congolese origin and had been a self-employed patisserie chef until various health issues stopped him from working.
From March 2015 onwards, he saw his GP regularly with a range of symptoms that may have signalled the onset of a neurological illness.
Problems with vision, a possible sleep disorder and seizures were documented in his medical history.
Statements from Herbulot’s family and friends referred to “health issues”, “narcolepsy”, “always nodding off” and losing control of one side of his face, as well as “suspected epilepsy”.
Others reported that Herbulot had lost “a lot” of weight in the months prior to his death.
He had also stopped taking his prescribed medication due to the side effects and was instead pursuing alternative remedies.
According to the coroner’s findings, Herbulot left his home with his dog around 4.30pm on November 22, 2020.
Half an hour later, several people saw his vehicle travel at speed down Neville St towards the intersection of Queen and Baxter Sts.
His car continued at speed through the intersection and mounted a raised island. The vehicle was slightly airborne as it continued through the intersection and into a car park, narrowly missing a shop.
The vehicle continued across the car park, hitting the curb, then again became airborne before travelling into a children’s playground.
It hitt various play equipment before travelling down a bank and into the Mahurangi River where it was completely submerged.
Members of the public rushed to the river to help save Herbulot. But, tragically, their efforts were in vain.
Emergency services arrived about 10 minutes later but it was another 20 to 30 minutes before Herbulot was able to be pulled from the vehicle.
Given the lapse of time, there were no attempts made to resuscitate him. His dog was found dead in the backseat.
It was confirmed Herbulot was wearing his seat belt at the time of the crash.
A witness described seeing him with “his head slumped forward on the steering wheel” and that he appeared to be unconscious.
A Police Serious Crash Unit investigation found that there were no issues with the vehicle or road and the coroner said in her findings that there was no suggestion Herbulot was attempting to harm himself or anyone else.
His GP echoed this, stating it was “inconceivable that he would have knowingly put the lives of others, especially children, in danger... He wouldn’t hurt anyone else.”
Others commented that he loved his dog and that the idea that he would intentionally harm his pet would have been “out of character”.
While Associate Coroner Smith said it was not possible to ever be “100 per cent sure of the precise cause of the crash”, evidence suggested Herbulot was not in control of the vehicle before it entered the water.
“In light of all of the evidence available to me, it is likely that Christian suffered a seizure or sleep event that rendered him unconscious prior to the crash.
“I am satisfied that there is no evidence that this was a deliberate act on the part of Christian.”
However, based on medical evidence provided to the coroner, it appeared Herbulot should not have been driving.
The coroner found that despite there being a record of Herbulot having an accident after falling asleep while driving in 2018, and a neurologist seemingly determining he should not be driving, the only record of discussion between the GP and Herbulot about his driving was in 2019.
Medical notes recorded “advised not to drive if feeling tired at all” and “concerned re driving safety”.
Associate Coroner Smith said it was not clear Herbulot was told with clarity by either his neurologist or the GP that he must not drive until he was symptom-free for a stated period.
“Unfortunately, there are no written notes that have recorded specifics of when or what particular advice was given to him.”
The coroner acknowledged there may be “practical challenges” for health practitioners to keep records on a patient’s unfitness to drive if it was likely to be for a short period and limited enforcement if a patient was determined to drive.
However, she said there was “scope for improvement” in the current system and noted other coroners have raised concerns around this issue and made previous recommendations to Waka Kotahi and the Ministry of Transport.
The current model states health practitioners must report to the Transport Agency only when they believe a person who is unfit to drive is likely to continue driving.
License holders were also advised to report to the agency any “at risk” conditions but this was only required if they were trying to obtain, renew, replace or reinstate a driver’s license, an endorsement or a driver’s ID card.
Associate Coroner Smith found this “unsatisfactory” and recommended that the Ministry of Transport consider making changes to the Land and Transport Act 1998 requiring health practitioners to report to Waka Kotahi any patient deemed to be unfit to drive, if the unfitness will endure for more than 60 days, regardless of whether the practitioner considers it likely that they may drive.
The coroner also recommended health practitioners record in writing any advice given to a patient regarding fitness to drive including the time frame the patient was told not to drive and to provide a copy to the patient.
Waka Kotahi advised the coroner it was reviewing a booklet titled Medical Aspects of Fitness to Drive: A Guide for Health Practitioners, taking into consideration the circumstances of Herbulot’s death.
Emily Moorhouse is a Christchurch-based Open Justice journalist at NZME. She joined NZME in 2022. Before that, she was at the Christchurch Star.
