In a recent case dealt with by the Keoghs complex injury team, an entirely blameless passenger found himself rendered an incomplete paraplegic when the vehicle in which he was travelling collided with another vehicle and street furniture at high speed. Ordinarily, the liability element of his claim would be a formality and he could reasonably expect to receive a significant award of damages.
However, his claim faced a major stumbling block as the driver of the vehicle fell unconscious, seemingly without warning, whilst stationary at a set of traffic lights. His foot then dropped onto the accelerator, setting in motion a chain of events that led to the claimant’s catastrophic injuries. Worse still, the claimant witnessed the driver fall unconscious and could do nothing to prevent what followed.
The police investigation was perfunctory, simply accepting that the defendant had experienced a ‘medical episode’ and declining to charge him with any offence relating to the standard of his driving. This is understandable in the criminal arena where, save for very specific strict liability offences, there needs to be an element of intent (or recklessness) to reasonably convict someone of any offence.
It could reasonably be argued that it would be a travesty of justice for a defendant, who had no knowledge, intention or recklessness owing to being unconscious, to be convicted (and potentially deprived of their liberty) simply because the injuries and consequences for the injured victim were so grave.
In civil litigation however, the picture is not quite so clear cut. Liability or ‘blameworthiness’ is often apportioned between various parties whose conduct cannot attract criminal sanction. The rights and responsibilities of each relevant party are weighed against each other with the ultimate/overriding objective (as per CPR1.1) of resolving each case ‘justly’. It is worth remembering that ‘justly’ is defined as ‘in a fair or morally correct way’. Conversely, the fundamental basis of the ‘tort of negligence’ is that for any remedy or compensation to be awarded there needs to be a ‘breach of duty’ in some way.
The leading case is Dunnage v Randall [2015] EWCA Civ 673 (CA) which in essence states that a defendant will not be liable if they were completely incapacitated in a manner which was “unheralded, unexpected and unforeseen” at the time of the incident. If, however, the defendant reasonably appreciated that they were likely to suffer a debilitating attack, they would be liable due to being negligent for driving in the first place.
In practice, it is an extremely difficult defence to prove. The burden of proof falls on the defendant and the courts who have, perhaps not unexpectedly, shown considerable reluctance to find in favour of a defendant given it leaves the injured claimant without compensation even though they are blameless.
Even in cases where the loss of control was entirely unforeseen, the defendant must prove it was not possible to anticipate the loss of consciousness they suffered in sufficient time to have taken steps to avoid the accident. The length of time between the onset of illness and occurrence of the loss of consciousness and control is known as the ‘prodrome’. The courts will place significant importance on that length of time when analysing if there was any way in which the accident could have been avoided.
The effect of this is to dramatically limit the number of true automatism defences. This is perhaps the most that the court can do within the confines of tort law to achieve what might be considered a ‘just’ outcome in these types of cases.
In cases involving mild or modest injury, one might be comfortable in accepting that this is a natural consequence of the proper application of the law and the unfortunate claimant simply has to accept the reality of the limitations of the existing legal system. But that is not a satisfactory argument in cases involving the most serious of injuries, such as paraplegia, amputations or brain injury. The innocent victims in those cases end up without any compensation and reliant upon the state, their friends and family for support which invariably proves insufficient to meet their needs and help them rebuild their lives.
Moreover, in practice, the all or nothing nature of these defences can lead to horse trading between insurers and the claimant mindful of their respective litigation risk. Such bargaining is nothing new in civil litigation, but in this scenario it leaves both entirely blameless parties with imperfect resolutions, with only a fraction of the claim being met for the claimant but significant payments from the insurer.
It is difficult to see how a mechanism providing a guarantee for victims of true automatism cases (an Automaton Drivers Agreement if you will) could sit within the jurisdiction of the civil courts in the UK. Others may make the case for an overhaul of the traditional tort-based system of suing for damages, in favour of a body such as the Accident Compensation Corporation in New Zealand, which provides a comprehensive system of support, compensation and rehabilitation to non-fault injury claims, whether caused by a negligent act or otherwise.
However, such seismic change should not be necessary, certainly not just to overcome the unfairness to victims of accident caused by ‘true automatons’. Here in the UK, we already have schemes such as the Untraced Drivers Agreement that demonstrate it is possible to devise schemes which run parallel to the courts. Whereas the Untraced Drivers Agreement navigates the absence of an identifiable defendant, could an ‘Automaton Drivers Agreement’ not do likewise in the absence of negligence?
Matthew Charman
Complex Injury Solicitor
Matthew Charman - Complex Injury Solicitor
The service you deliver is integral to the success of your business. With the right technology, we can help you to heighten your customer experience, improve underwriting performance, and streamline processes.
