The road accident having happened on 21 April 2013 on the A458 Shrewsbury to Welshpool dual carriageway in Shropshire. Mr and Mrs Byrne were riding home in a motorbike and sidecar. A car driver Mr Cox, who was travelling in the opposite direction, crossed onto the wrong side of the road and collided with their motorbike and sidecar. Mr Cox is said to have informed Police afterwards that he had been coughing and choking for “about a minute” after being given a sweet by his mother. He apparently decided to try and keep steering the car and subsequently blacked out and lost control of the vehicle. Unfortunately the case has not yet been reported but there is a suggestion that Mr Cox’s vehicle veered across the dual carriageway on two occasions.
Mr Cox is reported to have said that he has no accurate recollection of the car crash.
He was charged with two counts of causing death by careless driving. The main issue in the criminal case was whether Mr Cox was in control of the car. He was ultimately acquitted by Shrewsbury Crown Court.
A number of the follow-up comments that have been posted on the Mail Online appear to suggest that the driver ought to have slowed down/pulled over when he realised that he was choking. Certainly the fact that his car is reported to have veered across the road on two occasions suggests that he was sufficiently in control on the first occasion to have taken action to avoid or reduce the consequences of a collision.
Whether or not Mr Cox was in control of his vehicle is relevant because of the legal argument known as automatism. Automatism is a complete defence to any crime and allegations of negligence. There are two types of automatism: insane (due to a “disease of the mind” i.e. not guilty by reason of insanity) and “non-insane”. This article focuses on non-insane automatism (hereafter referred to as “automatism”) in civil cases.
The defence of automatism is most commonly used in cases involving driving. The main requirements are to prove (a) a total loss of control and (b) absence of fault in the events leading up to the total loss of control. It is for the Defendant to prove automatism.
There are a number of cases dealing with the defence of automatism in the context of criminal and civil liability. In a criminal case the prosecution must prove beyond all reasonable doubt that the Defendant is guilty, in doing so they must disprove the defence of automatism. In a civil case the Claimant must establish negligence on the part of the Defendant on the balance of probabilities (i.e. more than 50%) which is a much lower threshold. In order to successfully defend the case a Defendant must prove automatism on the balance of probabilities.
The essential issues focus on the extent of the Defendant’s knowledge of his/her condition and any actions on his/her part which may have caused or contributed to an event. Each case turns on its own particular facts. It is therefore important to carefully consider all of the circumstances. Reported cases include sleep apnoea (a condition where the muscles in the throat relax during sleep causing the sufferer to temporarily stop breathing and resulting in daytime fatigue- which was found to be automatism because the condition had not been diagnosed and so the driver could not have known that he would fall asleep); an epileptic fit (automatism where there is a total loss of control and where the driver had taken anti-seizure medication on the day of the accident); sneezing (automatism because it was an involuntary action); Post Traumatic Stress Disorder/shock (which could potentially amount to automatism if a person is acting in a dissociative state with no conscious mind or will); a stroke (not automatism because the driver retained some control of the vehicle); and loss of consciousness for no known reason (not automatism because there was no proof of a state of automatism).
Many of the reported cases centre around a plea of automatism as a result of being in a hypoglycaemic state (diabetics with excessively low blood sugar). In these cases consideration is given to whether or not the Defendant did something which could trigger an episode of loss of consciousness and whether he/she knew or ought to have known that this could occur. For example, the onset of a hypoglycaemic attack was held not to constitute automatism in cases where the driver knew or ought to have known that he/she was subject to hypoglycaemic attacks which caused loss of consciousness or where the driver retained some voluntary control over his/her movements. On the other hand a defence of automatism was established in a case where the Defendant was unaware of his condition of malignant insulinoma (which resulted in a hypoglycamic state) at the time of the accident and was unaware of the fact that his ability to drive was impaired as a result of his state. There are conflicting judgments in other cases as to whether or not automatism was established where diabetics had taken insulin but had not eaten and this resulted in a hypoglycaemic state.
Automatism can be a complete defence in that it absolves the Defendant of any liability for the consequences of his or her total loss of control. Thus where an automatism defence is made out the (often entirely blameless) victim is not entitled to any financial compensation through a personal injury claim. Currently there is no scheme to compensate victims of genuine automatism and so a person injured through absolutely no fault of their own has no recourse whatsoever to compensation for what are often very serious injuries. Contrast this with countries such as New Zealand that operate a no fault compensation system.
Certainly this does not seem fair or just. There is a school of thought that automatism is relatively easy to plead. This is borne out by a number of posts on the Mail Online message board which appear to be extremely sceptical of the defence pleaded by Mr Cox. More importantly there may be a strong argument that Mr Cox ought to have taken some action in order to avoid or reduce the consequences of the collision, for example slowing down/stopping his vehicle or altering its course. The fact that Mr Cox has been acquitted of the charges of causing death by careless driving does not preclude a civil claim on behalf of the estate of Mr and Mrs Byrne. When considering a civil claim a thorough examination of the evidence would be required, in particular to establish the precise timespan between Mr Cox starting to cough/choke and when he lost consciousness and what actions if any he could have performed during that period to avoid/reduce the consequences of a collision.
Moreover, drivers with a “notifiable” medical condition or disability are required to inform the Driver and Vehicle Licensing Agency. Notifiable conditions include a stroke, epilepsy and other neurological and mental health conditions. The Driver and Vehicle Licensing Agency may then contact the driver’s doctor and/or arrange a medical examination. Depending on the outcome the driver may be able to keep his or her licence, be granted a short-term licence or surrender the licence. In certain circumstances drivers are not required to notify the Driver and Vehicle Licensing Agency of a neurological disorder resulting in a loss of consciousness. For example, (a) where there are “prevocational factors”, warning signs and the loss of consciousness is unlikely to occur whilst sitting or lying; (b) where there is a solitary loss of consciousness where there is no clinical evidence of structural heart disease (although professional drivers of LGV’s and Passenger Carrying Vehicles cannot drive until three months after the event in (b)). The fact that motorists with a history of medical problems including a loss of consciousness are in certain circumstances able to continue driving jeopardises the safety of other road users.
Cases involving a plea of automatism are often complex. It is critical to understand the precise chain of events, and where appropriate the Defendant’s entire past medical history, in order to establish whether a defence of automatism is likely to be made out. Other relevant issues that may need to be taken into account include whether the Defendant should have been driving in the first place and, if so, whether he should have been driving slower/with greater care. In this context evidence of a previous loss of consciousness/control could be an important consideration in a personal injury claim.
It is understood that there are proposals for change of the law in this area. These appear to focus on replacing the insane automatism defence a new defence of “not criminally responsible by reason of a recognised medical condition” (namely physical, psychological or psychiatric conditions such as epilepsy, obstructive sleep apnoea and clinical depression which are “qualifying” in the sense that the person lacked capacity not to commit the alleged offence and was not culpably responsible for that lack of capacity) and to reform the defence of automatism so that it is only available where there has been a total loss of control which is not caused by a recognised medical condition and for which the Defendant was not at fault. It is not yet clear what might constitute a recognised medical condition.