Judgment In default after defendant diagnosed with automatism

08 April 2016

A road traffic accident happened at around 8.30am on 8 August 2006. The defendant, W, was driving an articulated lorry in the westbound nearside lane along the M62 motorway towards Liverpool. The claimant, Mr T (deceased), was alone in a Nissan Micra. 

The defendant lost control of his vehicle and collided with the rear of a Toyota, then went on to hit the rear of a Vauxhall Astra. This car, in turn, collided with the Nissan Micra. The force of the impact pushed the front of the Micra under the rear of a Ford Transit. The rear of the Micra was concertinaed by the Vauxhall, which caused the passenger compartment to fold within itself.

It took until 10am for the deceased to be cut from the vehicle. He subsequently died in hospital at approximately 2.30pm.

The defence

The defendant was charged with causing death by dangerous driving. However, the defendant's solicitors obtained evidence from a consultant respiratory physician, who confirmed that the defendant was suffering with undiagnosed obstructive sleep apnoea.

The Crown Prosecution Service also obtained evidence from a sleep expert, who concurred with the opinion of the defence expert, and therefore the case against the defendant was dropped.

At the inquest, the coroner concluded that it was an accidental death, as the defendant was unaware of his condition at the time of the accident.

The defendant was found not guilty of dangerous driving as a result of a previously undiagnosed medical condition relating to sleep apnoea.

Because of the defendant's diagnosis of sleep apnoea and the outcome of both the criminal proceedings and the inquest, the defendant's solicitors denied liability and were unwilling to provide the defendant's medical and employment records. They intimated that the defendant could not be held liable due to automatism.

How Shoosmiths supported

We were instructed by Mr T's personal representative Miss C to pursue a claim under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976.

In a case such as this it is important to gather evidence from all sources, including: statements from key witnesses, an investigation report from Merseyside Police, video and photographic evidence, transcripts of the defendant's interviews, and an Accident Reconstruction Report commissioned by us.

We were not satisfied that the defendant's were going to discharge their burden of proof and we were confident that we could successfully challenge the defence of automatism on the basis that the defendants would not be able to prove that his action amounted to  a sudden and complete loss of control. We argued that the act had been gradual rather than sudden, and therefore the defendant had the opportunity to avoid the accident.

High Court proceedings were issued, and the defendant's solicitors failed to file a defence. We therefore obtained judgment in default, but it meant that unfortunately the claimant was unable to challenge in court the defendant's evidence.

A Part 36 offer was made on quantum that was accepted by the claimant and the case settled by Consent Order.

What is automatism?

Automatism involves immediate complete loss of voluntary control. In these circumstances the individual will not be held blameworthy.

In the case of Bratty v AG for Northern Ireland (1963), Lord Denning stated:"...'automatism' means an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleep-walking."

Impaired or reduced control is not sufficient, and the defendant has the evidential responsibility to prove automatism.

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