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Zittrain Torts Playlist Spring 2013

Roberts and others v. Ramsbottom

Headnote

Should a medical episode absolve actors of their duty of care? Defendant suffered from a stroke prior to entering his car. He struck plaintiffs’ car while still mentally impaired by the stroke. Throughout the course of events, defendant did not realize that he was unfit to drive, but did admit to “feelings of queerness” at the time. The defendant’s deliberate and voluntary efforts to control his care demonstrated some awareness of his surroundings and traffic conditions. Based on medical testimony, the court found that defendant never suffered a complete loss of consciousness, as in an epileptic fit.

1

[823] 1 WLR 823

2

[QUEEN'S BENCH DIVISION: MANCHESTER]

3

ROBERTS AND OTHERS

4

v.

5

RAMSBOTTOM

6

1979 Jan. 31;

7

Feb. Neill J. [#22980]7

8

The defendant, who suffered a cerebral haemorrhage unknown to himself, entered and drove his car on a road in a town; he was unaware throughout that he was unfit to drive but his consciousness was impaired or clouded, he had some awareness of his surroundings and the traffic conditions and made a series of deliberate and voluntary though inefficient movements with his hands and legs to manipulate the car controls. He suddenly experienced feelings of queerness and collided with a stationary van. Still unaware that he was unfit to drive, he drove away and then into collision with a vehicle which was parked at the roadside on his near side; as a result the parked vehicle was damaged and its driver and a passenger were injured. The plaintiffs, the vehicle owner, the driver and the passenger, claimed damages from the defendant for loss and personal injuries caused by his negligent driving. The defendant denied negligence and pleaded that he was acting in a state of automatism and was not responsible for his actions.

9

On the question of liability:-

10

Held, giving judgment for the plaintiffs, that in an action for negligence against a car driver the standard of care by which his actions were to be judged was an objective standard; and that, albeit he would be able to escape liability if his actions at the relevant time were wholly beyond his control so as to amount to automatism in law, he could not avoid liability on the basis that, owing to some brain malfunction, his consciousness was impaired; that, therefore, the defendant was liable, for in law a state of automatism involved complete loss of consciousness, and in any event, he was guilty of negligence since he continued to drive with awareness of his disabling symptoms and of his collision with the stationary van even though he was unable to appreciate their proper significance (post, pp. 829G, 832E-H, 833A-B).

11

Hill v. Baxter [1958] 1 Q.B. 277, D.C.; Watmore v. Jenkins [1962] 2 Q.B. 572, D.C. and Nettleship v. Weston [1971] 2 Q.B. 691, C.A. applied.

12

[824] The following cases are referred to in the judgment:

13

Glasgow Corporation v. Muir [1943] A.C. 448; [1943] 2 All E.R. 44, H .L.(Sc.).

14

Gordon v. Wallace (1973) 42 D.L.R. (3d) 342.

15

Hill v. Baxter [1958] 1 Q.B. 277; [1958] 2 W.L.R. 76; [1958] 1 All E.R. 193, D.C.

16

Jones v. Dennison [1971] R.T.R. 174, C.A.

17

Nettleship v. Weston [1971] 2 Q.B. 691; [1971] 3 W.L.R. 370; [1971] 3 All E.R . 581, C.A.

18

Reg. v. Gosney [1971] 2 Q.B. 674; [1971] 3 W.L.R. 343; [1971] 3 All E.R. 220, C.A.

19

Reg. v. Isitt [1978] R.T.R. 211, C.A.

20

Reg. v. Spurge [1961] 2 Q.B. 205; [1961] 3 W.L.R. 23; [1961] 2 All E.R. 688, C.C.A.

21

Watmore v. Jenkins [1962] 2 Q.B. 572; [1 962] 2 W.L.R. 463; [1962] 2 All E.R . 868, D.C.

22

Waugh v. James K. Allan Ltd. [1964] 2 Lloyd's Rep. 1, H.L.(Sc.).

23

No additional cases were cited in argument.

24

ACTION

25

By writ issued on June 30, 1976, the first plaintiff, Jack Roberts, the second plaintiff, Jean Roberts, wife of the first plaintiff, and the third plaintiff, Karen Jane Roberts, daughter of the first and second plaintiffs, suing by her father and next friend, brought against the defendant, Arthur Ramsbottom, an action for damages for personal injuries and loss caused by the defendant's negligent driving of a Volvo motor car on June 4, 1976, in Bolton Road, Bury, Lancashire, when it collided with a stationary Triumph motor car owned by the first plaintiff and caused injuries to the second and third plaintiffs. The defendant denied negligence.

26

The facts are stated in the judgment.

27

John Stannard for the plaintiffs.

28

H. K. Goddard and R. D. Machell for the defendant.

29

Cur. adv. vult.

30

February 7, 1979. NEILL J. read the following judgment. Mr. and Mrs. Roberts live at 171, Ainsworth Road, Bury. On June 4. 1976, Mrs. Roberts drove in her husband's Triumph car to a launderette in Bolton Road, Bury. Her daughter, Karen, who was born on February 1, 1964, was with her sitting in the front passenger seat. The launderette was called Laundercentre. It was on the south side of Bolton Road between Buxton Street and Fountain Street. Mrs. Roberts approached the shop from the south-west, that is, from the direction of Bolton. She waited for a gap in the traffic and then drove across to the off side of the road and parked outside Laundercentre facing towards Bury. Mrs. Roberts opened I the door and prepared to get out on to the pavement. She turned to pick up her handbag. A moment later she was thrown out on to the pavement. A Volvo car driven by the defendant had come up the road from the direction of Bury and had collided head-on with the Triumph car driven by Mrs. Roberts. Karen had seen the car approaching and had ducked beneath the dashboard but the windscreen of the Triumph car was shattered and Karen was seriously injured by broken glass. Mrs. [825] Roberts also was injured but less seriously. The Triumph car was damaged beyond repair. The collision took place at about 10.20 a.m.

31

No criticism whatever is made of Mrs. Roberts's driving. It is accepted on behalf of the defendant that the facts which I have outlined and which are not in dispute would, if unexplained, entitle the plaintiffs to damages caused by negligent driving by the defendant. The first plaintiff, Mr. Jack Roberts, sues in respect of the damage to his car and in respect of certain other loss resulting from the collision. His claim is agreed subject to liability at £968.87. The second plaintiff is Mrs. Jean Roberts. She was the driver. She sues in respect of the injuries she suffered. The third plaintiff is Miss Karen Roberts, the daughter. She also sues for damages for personal injuries.

32

The defendant is Mr. Arthur Ramsbottom. He Jives at 396, Brandlesholme Road, Bury. He was born on December 2, 1902. He was therefore 73 at the date of the collision. His defence is that approximately 20 minutes before the collision he suffered a stroke, that is, a cerebral haemorrhage, which so clouded his consciousness that from that moment he was, through no fault of his own, unable properly to control his car or to appreciate that he was no longer fit to drive. Accordingly, argued Mr. Goddard on behalf of the defendant, the defendant was not negligent.

33

It is therefore necessary for me to consider the evidence as to the defendant's driving before the collision and the medical evidence as to the effect of his stroke. It is also necessary for me to consider the relevant principles of law.

34

The defendant's journey to Bolton Road

35

By profession the defendant was an accountant. When he was 65 he retired from full-time work but he continued to go to work for part of the day. He used to drive every day from his home at 396, Brandlesholme Road to his office in East Street in Bury. It was a journey of about two miles or a little more. Sometimes his wife went with him in order to go shopping. On June 4, 1976, he got ready to leave about 10 o'clock. It was a day his wife was going to go with him. Mrs. Ramsbottom went upstairs to get her coat. She came down. She found that her husband had gone without her. She was astonished because he had never gone off like this before, leaving her behind when he had arranged to take her. It was so unusual an event that after a time she telephoned the police.

36

Meanwhile, the defendant had set off towards the centre of Bury in his, blue Volvo car. There was no evidence before me relating to the earlier part of his journey. The defendant himself cannot now remember any part of his journey or any of the events of that morning and no other witness threw light on the defendant's movement before he reached Irwell Street. I am entitled to infer, however, and I do infer, that the defendant drove down Brandlesholme Road from his borne at number 396 and then along Crostons Road into Bolton Street and round the roundabout into l the continuation of Bolton Street on the east side of the roundabout. If he had followed his usual route the defendant would have then continued eastwards to the Market Place, turned right into Market Street and then driven into Angouleme Way and Spring Street to his office in East Street.

37

On that morning, however, instead of following his usual route, the defendant turned south just beyond the roundabout in Bolton Street and went down Irwell Street.

38

About half-way along Irwell Street on the east side there is a police [826] station. About 10.15 a.m. on June 4, 1976, there was a van parked outside the police station. Sitting in the van were Mr. Kay and Mr. Banks. They were waiting for a colleague. Both Mr. Kay and Mr. Banks gave evidence and there was some conflict of recollection between them about what they saw. I prefer the evidence of Mr. Banks and I accept his account of what happened. This is what he said. He was sitting in the van when be felt a bang at the rear of the van. He got out and saw that the off side corner at the back of the van had been hit by a blue Volvo. It was the defendant's car. The Volvo was at an angle as though it had been trying to overtake too late. The defendant tried to reverse. He had difficulty in getting into gear and when he reversed he moved the car in a jerky manner. Mr. Banks walked back to where the car was. By then the defendant had got out and was walking across the road to the path on the other side. As he crossed the road the defendant was narrowly missed by a gas board van. Mr. Banks asked him if he was all right. He said, "Yes, yes, yes." Mr. Banks asked him if he was sure. "Yes, yes," he said. The defendant gave Mr. Banks the impression that he was slightly dazed and his speech seemed slightly slurred. Mr. Banks noticed when the defendant crossed the road that he had an uneven gait. The defendant got back in his car and moved forward. He pulled up just behind the van, only a foot away. Once more he had to reverse. Mr. Banks again asked him if he was all right and he said he was. "Are you sure now?" said Mr. Banks. "Yes," said the defendant. After he had reversed the second time the defendant drove forward. On this occasion he avoided the van by a good margin and drove off down Irwell Street. As the defendant went down the road, however, Mr. Banks saw that he narrowly missed two men working in the road who waved and shouted. The defendant passed from view. A few minutes later Mr. Banks was joined by the third man in the van and he drove off. By chance his route took him to Bolton Road. There he saw the blue Volvo again. It was outside the Laundercentre. It had collided with the Triumph. The defendant was walking about in the road in a dazed condition.

39

It is clear that from Irwell Street the defendant had driven across into Tenterden Street and had then turned right into Millett Street. At the end of Millett Street he turned left into Bolton Street and then along Bolton Road. In Bolton Road, about 100 yards or so before he collided with the Triumph, the defendant's car brushed past a boy on a bicycle. The boy, young Mr. Hardman, was just by the Manchester Motor Mart in Bolton Road. He was riding a few inches from the kerb. He was knocked off his bicycle and fell on the pavement. There was plenty of room in the road for the defendant to have passed him normally. A few moments later Mr. Hardman saw the defendant's car crash into the Triumph.

40

The distance travelled by the defendant from his home to where he collided with the Triumph car was about two-and-a-half miles and involved travelling round a busy part of Bury and going round a number of comers.

41

The events following the collision

42

After the collision Mrs. Roberts, Karen and the defendant were taken together by ambulance to hospital. At the hospital it was not appreciated at once that the defendant had had a stroke. [827] At 11.30 a.m. he was seen at the hospital by Police Constable Flanagan. No criticism whatever can be made of the constable for interviewing the defendant. He had asked a nurse if he could see the defendant and had been told that he could. He described the defendant as appearing to be dazed. Constable Flanagan told the defendant that he was making inquiries about the co11ision. He cautioned the defendant. This is what the defendant told him: "I suddenly felt queer and I ran into the van. I felt I all right after that and I carried on. I felt queer again later and I hit the car." A little later he said: "I felt a bit queer before I ran into the van. I went away and felt all right. After that l felt a bit queer again and I hit the other car." The defendant that morning was also questioned by the medical staff at the hospital. I have not seen the hospital notes but it is common ground that the relevant parts of the hospital notes were: reproduced by Dr. Riley in a letter which he wrote to the defendant's insurers dated August 24, 1976. The second paragraph of that letter contains these sentences:

43

"He was then driving his car at about 10 a.m. when he felt rather dizzy for about 15 minutes and then nauseated. He kept on driving and then he remembers crashing his car before losing consciousness and he was apparently unconscious for about two minutes. He was admitted to Bury General Hospital."

44

I am satisfied that the information in that paragraph and in the hospital notes must have come originally from the defendant. I consider, however, that there is force in Mr. Goddard's argument, which was supported by the medical evidence, that the information may well have been based on questions and answers and the defendant may have done no more than say yes to various questions which were put to him. I do not therefore attach great importance to what the defendant appears to have told the doctors. But I do attach considerable significance to the defendant's interview with Constable Flanagan. There is no suggestion that the police officer put any words into the defendant's mouth.

45

The medical evidence

46

On the day after the collision the defendant was seen by Dr. M. E. Benaim, a consultant physician at Bury General Hospital, where the defendant had been detained. By this stage the defendant was unable to remember anything about his journey to Bolton Road. I understand it is typical for a stroke to be followed by progressive amnesia. He told Dr. Benaim he had blacked out and could not remember any more. The defendant was under Dr. Benaim's care at the hospital. He was very confused for several days and was discharged after about a fortnight. Dr. Benaim was satisfied that the defendant had had a stroke and also thought at one time that he might have had an epileptic attack as well. He agreed with Dr. Evans (to whose evidence I shall have to refer later) that the stroke probably started just before the defendant left home. He expressed the following opinions. First, that once the stroke had started the defendant would not have been completely normal and he would not have been able to judge the quality of his own driving. Secondly, that the defendant's mental condition following the onset of the stroke could be correctly termed a clouding of consciousness. Thirdly, in order to drive in traffic it is necessary for a driver to exercise his will and his capacity to think, and that when stopping and giving way to approaching traffic a [828] deliberate decision has to be made. Fourthly, on the subject of what the defendant said to the police officer and may have told 1he medical staff on June 4. 1976. Dr. Benaim said that he was not certain that the defendant would in fact have felt dizzy and that when he saw the defendant the next day, he himself would not have placed any reliance on what the defendant said. In cross-examination, however, he agreed that the case notes might be an accurate account of what the defendant actually experienced and, further, that he had no reason to doubt that what the defendant said to the police officer was accurate.

47

The main medical evidence called on behalf of the defendant was the evidence of Dr. John Evans, who is a consultant neurologist of the Salford Group of Hospitals and a lecturer in medicine at the University of Manchester. In addition to giving oral evidence be produced a medical report dated July 11, 1977. In the witness box Dr. Evans told me that he remained of the opinion expressed in that report. l shall therefore refer to that part of his report under the heading "Conclusion:"

48

"At my examination today"—that is July 11 , 1977—"Mr. Ramsbottom shows evidence of a moderately severe left hemiparesis with sensory loss down the left side of the body and sensory inattention  to visual stimuli in the left  half of his visual field. In addition he shows an impairment of intellect characterised by a marked impairment of short term memory. These neurological signs have been present since the episode on June 4, 1976. I am of the opinion that while his wife was upstairs changing preparatory to going out. Mr. Ramsbottom sustained a stroke causing severe disorientation of thought and impairment of memory, weakness of the left side of the body and inattention of his left visual field. It was in this disorientated condition that he went off in his car, forgetting to take his wife with him, and it was in the same disorientated state that he collided with the bicycle and the van and the car. It is clear that Mr. Ramsbottom was ill at the time of this incident, he did not fully appreciate what he was doing and he had no full control over his movements. He was, in effect, acting in a state of automatism and he was not responsible for his actions. At the same time Mr. Ramsbottom was not aware of the severity of his incapacity and he was not in a position to judge whether or not he was fit enough to take the wheel of his car. He has made a partial recovery from his stroke but still remains severely incapacitated. He is not fit to drive a car. He will continue to need help and care and attention from his wife."

49

Then Dr. Evans dealt with the suggestion that the defendant might have suffered an epileptic fit and expressed the view that in his opinion he had not.

50

In his evidence-in-chief Dr. Evans repeated what he had said in his report about automatism. He said that in his view there was no evidence in favour of an epileptic fit having occurred and that he was certain when the defendant had been driving along he was not capable of forming any rational opinion as to whether he was able to drive. And later he said that the clouding of consciousness resulted in the defendant being unable to appreciate fully what had happened or to appreciate that he was incapable of driving the car properly. He described, asI have said, the defendant's condition as a clouding of consciousness. He also expressed the opinion that a person in the defendant's condition on June 4 following his stroke [829] would have given a most misleading account to a police officer or anyone else as to what had happened. In cross-examination, however, Dr. Evans accepted that a person in the defendant's condition might have felt queer and rather dizzy and might have experienced a feeling of nausea. He also agreed that the defendant could have experienced what he described to the police officer.

51

He was also questioned about the extent of the defendant's consciousness. He agreed that the defendant was not unconscious but that his consciousness was impaired or clouded from the time he set out. He accepted that the defendant's movements in driving were deliberate movements and that to drive along the route which the defendant followed involved purposeful acts. He described the defendant's state at the time of collision with the Triumph as a state of impaired consciousness. Nevertheless, Dr. Evans remained unshaken in his evidence that the defendant did not know that he was driving badly or that he was unfit to drive. He told me that after the initial onset of the stroke further damage to the brain would have occurred all the time during the next hour or so. During that period the defendant's capacity to drive might have fluctuated somewhat but his physical condition must have got worse.

52

I have summarised the main points of the evidence and r must now state my findings of fact in relation to the defendant's driving and his condition when driving. It is not in dispute that the circumstances of the collision establish a prima facie case of negligence. I can get out my findings shortly as follows.

53

First, I find that the defendant suffered a stroke on June 4, 1976, and that the onset of the stroke began shortly before he left home at about 10 a.m. Second, before he suffered that stroke the defendant had had no previous symptoms or warning signs. Third, that following the onset of the stroke the defendant's consciousness was impaired. Fourth, that this ate of impaired or clouded consciousness continued throughout the defendant's journey from his home to the point of impact in Bolton Road. Fifth, that the defendant did experience the feelings of queerness which he described to the police officer and did know at the time it happened that he had bit the van. Sixth, that throughout the journey to Bolton Road and up to the moment of impact with the Triumph car the defendant was sufficiently in possession of his faculties (a) to have some though an impaired awareness of his surroundings and the traffic conditions; and (b) to make a series of deliberate and voluntary though inefficient movements of his bands and legs to manipulate the controls ofhis car. Seventh, that the defendant was at no time aware of the fact that he was unfit to drive; accordingly no moral blame can be attached to him for continuing to do so.

54

I must turn therefore to consider the law applicable to these facts. The standard of care by which a driver's actions arc to be judged in an based on negligence is an objective standard. Every driver, including learner driver:

55

"must drive in as good a manner as a driver of skill. experience and care, who is sound in wind and limb, who makes no errors of judgment, has good eyesight and hearing and is free from any infirmity: …" see Lord Denning M.R. in Nettleship v. Weston [1971] 2 Q.B. 691, 699.

56

It is the same standard as that which is applied in the criminal law in relation to offences of dangerous driving and driving without due care [830] and attention. The standard "eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question": see the speech of Lord Macmillan in Glasgow Corporation v. Muir [1943] A.C. 448, 457.

57

As Salmon L.J. said in Nettleship v. West on [1 971] 2 Q.B. 691, 703: "On grounds of public policy, neither the criminal nor civil responsibility is affected by the fact that the driver in question may be a learner, infirm or drunk." The liability of a driver in tort is not, however, a strict liability Nor is the offence of dangerous driving an absolute offence. In Reg. v. Gosney [1971] 2 Q.B. 674 Mcgaw L.J., in relation to a charge of dangerous driving, said, at p.  680:

58

“It is not an absolute offence. In order to justify a conviction there must be not only a situation which, viewed objectively, was dangerous, but there must also have been some fault on the part of the driver, causing that situation. ‘Fault’ certainly does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving. Nor does fault necessarily involve moral blame. Thus there is fault if an inexperienced or a naturally poor driver, while straining every nerve to do the right thing, falls below the standard of a competent and careful driver. Fault indicates a failure, a falling below the care or skill of a competent and experienced driver, in relation to the manner of the driving and to the relevant circumstances of the case. A fault in that sense, even though it be slight, even though it be a momentary lapse, even though normally no danger would have a risen from it, is sufficient."

59

As Megaw L.J. said a little later in his judgment in Reg v. Gosney [1971] 2 Q.B. 674, 680: "Such a fault will often be sufficiently proved as an inference from the very facts of the situation." But there may be cases where the driver will be able to raise some matter sufficient to avoid the inference of fault.

60

In the criminal cases concerned with dangerous driving guidance is given as to the circumstances in which some sudden event will provide a defence. In Reg. v. Spurge [1961] 2 Q.B. 205 Salmon J., in delivering the judgment of the Court of Criminal Appeal, said, at p. 210:

61

"If, however, a motor-car endangers the public solely by reason of some sudden overwhelming misfortune suffered by the man at the wheel for which he is in no way to blame- if, for example, he suddenly has an epileptic fit or passes into a coma, or is attacked by a swarm of bees or stunned by a blow on the head from a stone, then he is not guilty of driving in a manner dangerous to the public…It would be otherwise if he had felt an illness coming on but still continued to drive, for that would have been a manifestly dangerous thing to do."

62

A little later, in relation to a defect in the vehicle, he went on, at pp. 210-211:

63

"There does not seem to this court to be any real distinction between a man being suddenly deprived of all control of a motor-car by some sudden affliction of his person and being so deprived by some defect suddenly manifesting itself in the motor-car. In both cases the motor-car is suddenly out of control of its driver through no fault of his."

64

[831] In the course of his judgment, at p. 210, Salmon J. also explained that the defendant in what may be called the "sudden affliction" cases may be able to e cape liability on the additional ground that he was not driving at all. It was this ground which was considered by the Divisional Court in Hill v. Baxter [1958] 1 Q.B. 277. Lord Goddard C.J. said, at p. 283: "…there may be cases where the circumstances are such that the accused I could not really be said to be driving at all." And Pearson J. put the matter in these terms, at p. 286:

65

"In any ordinary case, when once it has been proved that the accused was in the driving seat of a moving car, there is, prima facie, an obvious and irresistible inference that he was d riving it. No dispute or doubt willarise on that point unless and until there is evidence tending to show that by some extraordinary mischance he was rendered unconscious or otherwise incapacitated from controlling the car."

66

In civil cases too a defendant may be able to rebut a prima facie case of negligence by showing that a sudden affliction has rendered him unconscious or otherwise wholly incapable of controlling the vehicle. In Waugh v. James K. Allan Ltd. [1964] 2 Lloyd's Rep. 1 it was contended in the Inner House of the Court of Session that the driver had been driving negligently. But Lord Clyde L.P., in his judgment in the Inner House of the Court of Session, said, at p. 2:

67

"In the first place it was contended that Gemmell was driving his lorry in a negligent and dangerous manner and was therefore guilty of negligence. But it seems to me clear on the evidence that the driver was at the time of the accident to the pursuer so completely disabled by the sudden onset of the coronary thrombosis as to have ceased to be responsible for the alarming manoeuvres of his lorry, and the Lord Ordinary had ample evidence upon which he was entitled to negative this ground of fault."

68

This ground of negligence was not pursued in the House of Lords. Where the only question which was debated was whether the driver should have realised that he was unfit to drive.

69

Jones v. Dennison [1971] R.T.R. 174 is a similar case. The driver, who was an epileptic, bad a sudden blackout but the argument in the Court of Appeal was concerned wholly with the question whether he was or ought reasonably to have been aware of a tendency on his part to suffer a blackout: see also the Canadian case of Gordon v. Wallace (1973) 42 D.L.R. (3d) 342, and the cases there referred to.

70

In the present case, however, I am not concerned with a total loss of consciousness but with a clouding or impairment of consciousness. I must turn again for assistance to the criminal cases where specific consideration has been given to what is called the defence of automatism.

71

In Watmore v. Jenkins [1962] 2 Q.B. 572 the defendant was charged with three offences including dangerous driving and driving without due care and attention. The defendant was a diabetic who had had an attack of infective hepatitis. In the course of driving home from h is office he suffered a hypoglycaemic episode and in a gradually worsening state of concussion he d rove from Mitcham to a point about five miles away in Coulsdon where he crashed into the back of a car. The defendant had no recollection of this part of his journey and had had no warning of the [832] onset of the episode. The justices acquitted the defendant on the grounds that at all material times he was in a state of automatism. The Divisional Court, consisting of five judges presided over by Lord Parker C.J., remitted the case to the justices with a direction to convict. Winn J. who delivered the judgment of the court, said, at p. 586:

72

"It is…a question of law what constitutes a state of automatism…this expression is no more than a modern catch-phrase which the courts have not accepted as connoting any wider or looser concept than involuntary movement of the body or limbs of a person."

73

And later, at p. 587, he referred to "such a complete destruction of voluntary control as could constitute in law automatism."

74

To the same effect was the judgment of the Court of Appeal in Reg. v. Isitt [1978] R.T.R. 211. Lawton L.J. referred to acts done during an epileptic attack and continued, at p. 216: "What the accused does in those circumstances is involuntary. Acts performed involuntarily have come to be known as automatism." But he added, at p. 216:

75

"It is a matter of human experience that the mind does not always operate in top gear. There may be some difficulty in functioning. If the difficulty does not amount in Jaw to either insanity or automatism, is the accused to be entitled to say 'I am not guilty because my mind was not working in top gear'? In our judgment he is not."

76

In Reg. v. Isitt [1978] R.T.R. 211 there was medical evidence that at the material time the defendant was suffering from some malfunction of the mind. But the facts showed that he had driven in that state for a considerable distance and his driving was described by Lawton L.J., at p. 216, as "purposeful driving."

77

Finally, the decision of the Divisional Court in Hill v. Baxter [1958] 1 Q.B. 277 to which I have already referred, provides additional support for the proposition that in law a stat e of automatism involves a complete loss of consciousness.

78

I am satisfied that in a civil action a similar approach should be adopted. The driver will be able to escape liability if his actions at the relevant time were wholly beyond his control. The most obvious case is sudden unconsciousness. But if he retained some control albeit imperfect control, and his driving, judged objectively, was below the required standard, he remains liable. His position is the same as a driver who is old or infirm. In my judgment unless the facts establish what the law recognises as automat ism the driver cannot avoid liability on the basis that owing to some malfunction of the brain his consciousness was impaired. Mr. Stannard put the matter accurately, as I see it, when he said: "One cannot accept as exculpation anything less than total loss of consciousness."

79

It is true that in the present case Dr. Evans described the defendant's condition as one of automatism. I am satisfied, however, that his condition did not amount to automatism as that word has been used in the decided cases.

80

I therefore consider that the defendant is liable in law for his driving when he collided with the Triumph car in Bolton Road.

81

I also consider that the plaintiffs would be entitled to succeed, if necessary, on the alternative ground put forward, that is that the defendant continued todrive when he was unfit to do so and when he should have [833] been aware of his unfitness. He was aware that be bad been feeling queer and bad hit the van. Owing to his mental state he was unable to appreciate that he should have stopped. As I have said, and I repeat, the defendant was in no way morally to blame, but that is irrelevant to the question of legal liability in tills case. An impairment of judgment does not provide a defence. I consider that the defendant was in law guilty of negligence in continuing to drive because he was aware of his disabling symptoms and of his first collision even though he was not able to appreciate their proper significance.

82

I turn therefore to the question of damages. [His Lordship considered the evidence relating to damages, and continued:] In those circumstances the damages will be as I have already stated: that is, for the first plaintiff £968.87; for the second plaintiff £700; and for the third plaintiff £2,500.

83

Judgment for plaintiffs accordingly together with interest to be agreed and costs.

84

Liberty to apply.

85

Legal aid taxation of plaintiffs' costs.

86

Stay for 28 days.

87

Solicitors: Frederick Howarth Son & Maitland, Bury; A. W. Mawer & Co., Manchester.

88

L. N. W.