Automatism – Time for a new approach? 

Imagine if you will a quiet and ordinary suburban street. There are pavements on each side separated from the road by a small grass verge. The speed limit is 30 mph and cars drive slowly along this street; the drivers mindful that people will be in close proximity to the road. Now imagine that an individual is strolling along the pavement, perhaps on their way to a nearby café, the sun is shining, and the road is clear. Suddenly a car veers off the road and onto the pavement, running into the individual and causing them to suffer a significant injury.

At first sight (or prima facie for those that enjoyed their Latin expressions at law school) liability in the matter is clear. The motorist has a common law duty of care to other road users, the road is for vehicles, cyclists and horses, the pavement is for pedestrians. By leaving the road, mounting the pavement, and running into the person using the pavement, they have breached that common law duty of care and are liable for the damages sustained. However, now suppose that the driver of the vehicle had suffered a sudden and unexpected medical event that rendered them unconscious and not in control of the vehicle. They may argue that they are not liable, their insurer and their assembled solicitors will no doubt raise automatism as a defence to the claim. 

What is Automatism?

Automatism is a legal defence traditionally associated with criminal law, but it can also arise in civil claims, presenting unique challenges and considerations for the parties in litigation and also the court. 

Automatism refers to actions performed without conscious control or voluntary intent. In legal terms, it is an involuntary act that occurs when a person’s bodily movements are not guided by their conscious mind. This lack of voluntary control can result from various factors, including: 

  • Medical Conditions: Seizures, epilepsy, or other neurological disorders.
  • External Factors: Extreme stress, intoxication (though this is often treated differently in law), or sleepwalking.
  • Psychological Factors: Dissociative states or severe mental health conditions.

In the context of civil claims, automatism may be invoked as a defence to argue that the defendant should not be held liable for actions they could not consciously control. In the context of a personal injury claim arising from a road traffic collision, a defendant might claim automatism to argue that the injury causing act was not under their voluntary control, thus negating liability.

How can Automatism be successful?

For such a defence to be successful in a civil claim, certain criteria must be met. These normally include: 

  • Evidence of Automatism: The defendant must provide clear and convincing evidence that the act was involuntary. This often requires medical or expert evidence to substantiate the claim.
  • Causation: It must be shown that the automatism directly caused the action in question. For example, in a car crash, medical records and expert analysis may be necessary to link a seizure to the loss of control.
  • Foreseeability: The automatism should be unforeseeable and unavoidable. If the defendant was aware of their condition and its potential effects, the court may find that they had a duty to take precautions such as ensuring they took prescribed medication or didn’t drive if they were feeling unwell.

The burden of proof in civil cases typically lies with the defendant to prove automatism by a weight of the evidence.  

In our example case it is highly likely that the defendant insurer would look to raise automatism as a defence. Insurers will argue that have a duty to their shareholders or in the case of a mutual insurer, their policyholders, to reduce their indemnity spend as much as possible. They should therefore be free to use any means and advance any argument to do so.

The future of the Automatism

Where however does that leave the innocent pedestrian in our case, merely strolling along the pavement to a nearby café to pick up a coffee. Their life and that of their family and friends has been upended by the actions of the driver. If the defence of automatism is successful, then it is a complete defence to the claim as a whole. The pedestrian will obtain no compensation at all, furthermore all the treatment and care they require from the date of the accident and onward, perhaps for the rest of their lives, will fall on the state and or their family to provide. Perhaps they may never be able to work again, and their existence will become impoverished. 

It is these cases that are amongst some of the most challenging to deal with. Perhaps therefore a new approach should be considered. It is a brave country, so far only New Zealand, which has set up a non-fault compensation scheme administered by the government as an alternative to a complete tort system. I am not suggesting that such a scheme would be plausible or implementable in the far larger and perhaps more complex jurisdiction of England and Wales. However, there is a guarantee fund in the form of the Motor Insurer’s Bureau (MIB) which administers claims and pays compensations as an insurer of last resort where the at fault driver has no insurance in place or where the defendant cannot be identified due to a hit and run. It is not beyond the realms of possibility that the MIB could step in where an automatism defence is successful in a civil claim. Where automatism is alleged early on and it is clear from the evidence available that such a defence will likely succeed, then the MIB could step in and act as a defendant of last resort in the matter. The MIB cannot however act as a court and where the parties to proceedings cannot narrow the issues sufficiently, then the MIB could be named as a defendant in any subsequent proceedings but not take an active role in the proceedings until the matter reaches trial, whereupon, if the automatism is proven as a successful defence, the claim against the other defendants is discontinued and continued only against the MIB. These are mere suggestions and clearly, the details of any such scheme would need to be ironed out and carefully considered including the issue of costs. 

What is the government doing?

It is notable that the issue of automatism has not been debated in parliament since May 2019, and such an issue is no doubt very low down on any incoming governments list of priorities. However, the current state of the law, especially on the civil side, where automatism is raised, delays or prevents victims from obtaining the treatment, support and financial remedy they require. It leads to ongoing uncertainty while the parties to litigation try to resolve matters, sometimes only at trial, years after the event, and is surely ripe for reform.

Automatism will always remain an important defence, especially so in criminal law. However, it does not necessarily require an activist judge to perhaps try to change the law in this area, but some consideration as to the framework as how these claims are dealt with.

How can Moore Barlow help

At Moore Barlow we have a specialist team of Serious Injury Solicitors highly skilled at resisting a defence of automatism and in many cases securing from the insurer funding pursuant to the Rehabilitation Code 2015 to meet ongoing treatment costs whilst liability is addressed. 

If you have suffered a serious injury as a result of a road traffic collision then contact our Serious Injury Team on Freephone 0800 157 7611 or .