Stormy seas for the defence of automatism

The concept of insurance can be traced back to the Roman Empire, where under maritime law shippers took out insurance to protect themselves against the risk of losing their ships to stormy seas, pirates, and technical failures. Following this legacy, car insurance (a legal requirement since the 1930s) has become the safety net that protects drivers from claims when they negligently cause a road accident that causes injuries to others or damages their property.

But what happens if you cause a road accident due to a sudden medical event such as experiencing a stroke or fainting? In the field of motoring insurance, this is known as “automatism”, the experience of a sudden serious medical episode which can be a complete defence to both a criminal and/or civil claim. Automatism occupies an anomalous space that was recently successfully challenged in one case by RTA Law.

The defence of automatism is certainly necessary in criminal law, where the concept of mens rea is still one of the touchstones of justice. If a driver suffers from a medical episode which renders them unconscious, they should not be found guilty of any criminal offence that follows, as they had no control over their actions, therefore no criminal intent.

Civil consequences

However, going back to the genesis of insurance itself, while the criminal intention of a driver responsible for an accident in a civil case can be considered as something of an irrelevance, it does not follow that a defence of automatism should be allowed to enable insurers to escape liability where these unusual circumstances result in injury to a third party. The negative implications of allowing such a defence were highlighted recently in one of our cases.

In May 2019, a motorcyclist instructed us to represent him after he suffered significant, life-changing injuries following a head-on collision when a driver travelling in the opposite direction veered into his lane, throwing him from his motorcycle. It was the driver’s position that he had caused the accident after suddenly falling unconscious at the wheel due to a medical episode. The driver’s insurance company then attempted to rely on the defence of automatism and refused to settle the motorcyclist’s claim for damages. As a result, our client was denied funds to pay for rehabilitation or cover his loss of earnings, despite the fact that he had been completely blameless.

There is very limited Scottish civil authority on what, in law, amounts to involuntary conduct, but there are a number of reported decisions from the English courts. Involuntary conduct is a defence to an action brought in negligence in Scotland. It is likely the English authorities will be highly persuasive in Scottish courts. In raising the defence of automatism, the onus is on the defender to satisfy the court that the negligent act was involuntary and it was not reasonably foreseeable that the event giving rise to the involuntary conduct would occur. The defender’s loss of control must be complete, and impairment will not suffice.

Prior awareness

We raised an action for damages in the Court of Session on behalf of the motorcyclist against the driver and the insurance company. If the court accepted the defence of automatism, the action for damages would fail. Evidence was obtained from two witnesses travelling behind the car involved, who saw the defender driving erratically for short periods in the final minutes before the collision. For periods in between episodes of erratic driving, they also witnessed the driver navigating bends with care and reducing speed when entering a 30mph zone.

The evidence of the defender’s sporadic erratic driving was supported by the opinion of an expert cardiologist, who considered that the defender had most likely been suffering with symptoms of a medical condition which, in short but not immediate course, would have led to a loss of consciousness. On the opinion of the cardiologist, we argued that the defence of automatism should not be upheld because the defender’s condition had deteriorated over time, rather than worsening suddenly or without warning. The defender would have been aware of the symptoms and should have brought his vehicle to a controlled stop before losing consciousness. In doing so, the collision could have been avoided. The case proceeded through the court for two years before a settlement figure was finally agreed and our injured motorcyclist was compensated for his injuries and losses.

Going back to the ancient origins of insurance, the fact that the insurers had to be pursued through the courts to challenge their argument of automatism does rather beg some existential questions of motoring insurance, when it cannot provide innocent victims with a civil remedy if the very worst happens – whatever the circumstances. Rather like a storm at sea 2,000 years ago, an episode of automatism today can seemingly appear from almost nowhere – but that shouldn’t mean that injured parties, impacted by its disastrous effects, should be left exposed and unprotected.