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Countering the defence of automatism in a fatal road collision case

Claire Glasgow recently settled a claim on behalf of a widow whose husband was killed when his car was hit by a minibus driving on the wrong side of the road.

In normal circumstances, liability would have been clear in that the defendant driver was not in control of the vehicle, was driving dangerously, and was responsible for the collision. The insurer of the defendant driver would then be liable for a compensation claim on behalf of the deceased's family. Such a claim would normally compensate the family for the loss of financial and practical support that the deceased provided.

However, the defendant insurer in this case put forward the defence of automatism which, if upheld, would mean that the defendant driver was not liable for the collision. The insurer in turn would not be liable to pay any compensation to the deceased's family.

In legal terms, automatism is defined as where someone cannot be held responsible for their actions if they have no knowledge of the accident, i.e. they are not conscious of what they are doing because they have lost total control through no fault of their own. This generally follows a spontaneous medical incident that is not self-induced, such as blackout, or epileptic fit.

This defence is only available if the person raising it was not aware of the underlying health issues that caused them to lose control. It is also up to the defendant to provide sufficient evidence to prove that they were in a state of automatism at the relevant time.

In Claire's case, the defendant insurer argued that the defendant driver suffered an interruption in his heart rhythm that caused him to blackout and lose control of the vehicle. The insurer collected medical evidence to support this assertion from an expert cardiologist, who looked at the driver's previous medical history and at hospital treatment he received for a heart condition subsequent to the collision. The expert suggested that on the basis of a cardiac condition that was diagnosed after the collision, that a pause in heart rhythm was the most likely explanation for the defendant's loss of control.

Claire countered this argument by also instructing an expert cardiologist to examine the same medical history and treatment. This expert refuted the likelihood of the driver suffering a pause in his heart's rhythm during the day. He could find no evidence of such daytime pauses having occurred before or after the collision. He did not agree that the subsequent cardiac treatment that the defendant received was conclusive evidence that a cardiac event must have caused the defendant driver to collide with the deceased's car.

He argued that the defendant's cardiac condition worsened after the collision due to other factors, and that at the time of the collision he did not think there was evidence to suggest that the defendant would have suffered a pause in heart rate of sufficient length to induce a blackout.

The defendant continued to deny liability based on their expert evidence and Claire prepared for trial where the judge would be asked to decide which side's medical evidence was the more compelling. At a round table meeting before trial, however, the defence agreed settlement of the claim for the losses suffered by the deceased's family, without admitting liability.

It is, however, fair to say that the defendant agreed to settle rather than take the case to court and that the medical evidence that Claire obtained was instrumental in raising doubt about whether the defence of automatism could be proved at trial.

Claire said: "It is fairly rare for an at-fault driver to raise an automatism defence, and it can be a difficult defence to deal with, not least because in cases like this no-one can be completely certain of what happened. We then have to look at what is most probable based on what the medical evidence tells us.

"In this case, we were able to show that there was enough doubt around the explanation put forward by the defendant's medical expert as to what had actually happened, which allowed us to settle.

"I'm very pleased with the result because it will provide some financial support to the poor family who have been absolutely devastated by their loss."

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