Henry O'Brien (plaintiff/ appellant) v Killian Parker (defendant/ respondent).

Civil Proceedings Negligence - Road traffic accident - Whether defence of automatism available to defendant - Whether defendant had suffered loss of consciousness - Whether defendant had been negligent in continuing to drive while experiencing onset of symptoms.

The High Court (before Mr Justice Lavan); judgment delivered 25 February 1997.

THE defence of automatism requires that there be a total destruction of voluntary control on the part of a defendant. Impaired, reduced or partial control by the defendant is not sufficient to maintain the defence.

The High Court so held in allowing the plaintiff's appeal against an order of the Circuit Court wherein the plaintiff's claim for damages been dismissed and costs of the action had been awarded to the defendant.

Mark de Blacam BL for the plaintiff/appellant. High Hartnett BL for the defendant/ despondent.

MR JUSTICE LAVAN, outlining the facts of the case, said that the plaintiff's claim was for loss and damage which, he alleged, he had sustained following a collision with the defendant's motor car which had been caused by the defendant's negligence.

The facts of the collision and damage had been agreed by the parties.

However in his defence the defendant relied on the fact that immediately before the accident he had, without prior indication, suffered an attack of epilepsy.

Mr Justice Lavan said that the defendant was a thirty eight year old storeman who had not suffered from any significant illness prior to the evening of the accident on 24 September 1994. The defendant gave evidence that on the night of the accident he had experienced images of intense light but had felt able to get into his car.

While driving, the defendant had become aware of a strange smell and had noticed colours to be unusually vivid, he had difficulty focusing and he next remembered getting out of his car while surrounded by people and gardai.

Evidence was add need on the defendant's behalf that he had no previous relevant medical history and that, although he had lost consciousness once as a child, he had never been treated for blackouts. Since the accident, the defendant had been prescribed medication and had not suffered any further attacks.

Mr Justice Lavan said that the court had heard from the investigating garda who accepted that, immediately after the accident, the defendant was unable to understand what was going on.

Turning to the parties' submissions, Mr Justice Lavan said that the defendant had submitted that where a defendant proved that his actions were the result of a sudden illness, the defence of inevitable accident was made out. To this end the defendant relied on, inter alia, Roberts v Ramsbottom [1980] WLR 823, but conceded that the illness relied upon must have resulted in automatism or a state of unconsciousness in which a defendant was left without control of his actions.

Mr Justice Lavan said that the plaintiff had contended that, even if the court were to conclude that at the actual time of the accident the defendant had been an automaton, nevertheless there was negligence on the defendant's part because he could recollect symptoms, which had he exercised reasonable care, would have led him to stop driving.

The plaintiff also relied on Roberts v Ramsbottom and submitted that the defendant was conscious while experiencing these symptoms, otherwise he would have been unable to remember them.

Finally, the plaintiff submitted that the court was not required to consider whether the defendant did all he could in the circumstances. Rather, the defendant had to meet the standard of a reasonably careful driver.

Mr Justice Lavan saw no reason why the defence raised should not be a defence at civil law but noted that there was a consistent pattern of maintaining strict limits to the defence in the criminal law. Applying the principles enunciated in Bratty v Attorney General for Northern Ireland [1963] AC 386 and Broome v Perkins (1987) Crim. L. Rev. 271, Mr Justice Lavan was satisfied that the test to be applied was that the defence of automatism required that there had to be a total destruction of voluntary control on the defendant's part.

Mr Justice Lavan concluded that the defendant had not established this defence on the balance of probabilities and that the impaired, reduced or partial control of which the defendant bad given evidence was not sufficient to allow the defendant to succeed in the case.

Solicitors: Delahunty, O'Connor & Co (Dublin) for the plaintiff/appellant; Crowley Millar (Dublin) for the defendant/respondent.