The defence of automatism in traffic accidents raises big questions for insurers - Jo Clancy

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 vessels 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 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, recently successfully challenged by our specialist lawyers at 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.

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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.

Jo Clancy is an Associate, RTA Law LLPJo Clancy is an Associate, RTA Law LLP
Jo Clancy is an Associate, RTA Law LLP

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 attempted to rely upon 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 was completely blameless.

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 in the accident, 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 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 the insurers had to be pursued through the Courts to challenge their argument of automatism raises some existential questions of motor 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 2000 years ago, an episode of automatism today can seemingly appear from almost nowhere - but that shouldn’t mean injured parties, impacted by its disastrous effects, should be left exposed and unprotected.

Jo Clancy is an Associate, RTA Law LLP



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