Roz Boynton: A defense of automatism has no place in civil law

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Roz Boynton: A defense of automatism has no place in civil law



Roz boynton

Shockwaves reverberated through the cycling community recently when a jury handed down an ‘unproven’ verdict against car driver Jordan McDowall following a trial in Glasgow High Court.

The 21-year-old was acquitted of causing the death of 51-year-old cyclist Kevin Gilchrist by reckless driving. Mr Gilchrist, husband and father of three, was killed in 2018.

Jordan McDowall pleaded not guilty to causing death by dangerous driving, saying she had no recollection of the incident and that there was a gap in her memory.

Many in the Scottish cycling community have questioned whether the jury’s decision means you can get away with anything just by saying you don’t remember the incident. This was not a case where the driver claimed she was suffering from a new or sudden medical condition that she was not aware of before – she said she just couldn’t remember of what had happened and explained that there was a “space” in his memory.

Colin Allanach, President of Scottish Cycling Grampian and Grampian Cycle Partnership, said: “Is the season open to cyclists now?” and, as a cyclist myself, it’s hard not to agree with him.

While the ruling is controversial, the legal defense behind it may be even more so and has not been widely reported in coverage of the case. In criminal law, to be convicted of most crimes, it must be shown that you have criminal intent – either through malice or recklessness. However, if it can be shown that the accused was not in control of his actions through no fault of his own and has no knowledge of the incident, then a defense of automatism will be invoked and may be sufficient to obtain the acquittal.

Automatism is one of the six Special Crime Defenses in Scotland (along with Self Defense, Necessity, Alibi, Criminalization and Insanity). Automatism is when someone unwittingly loses control of their body through no fault of their own. For example, if a driver with no medical history, suddenly and without warning, suffers an unexpected epileptic seizure while driving and kills or injures another road user, he could use the automatism defense against criminal charges.

While automatism is a defense to criminal charges, what is its place in civil law? Is it fair and just that it can also be used as a full defense in civil cases, thus refusing to compensate those injured or bereaved by a driver who had no control over his actions at the time of the collision?

In civil damages cases, the onus is on the injured party to establish negligence. There can be no negligence if a driver’s action is unintentional. This means that compensation can be denied to injured parties through no fault of their own. Take the same example above, where the driver who suffers from an unexpected epileptic seizure causes a young woman’s life-changing injuries, meaning she will suffer her entire life and never work again. The driver is fully insured and yet, despite a valid insurance policy, the young woman cannot recover compensation for her injuries and losses.

When automatism is invoked in a civil case, it is up to the defender, often an insurer, to establish that his policyholder was not in control of his actions. Careful investigation of these cases can defeat the defense of automatism often by reviewing medical records and a detailed investigation of a driver’s general health in the days leading up to the collision. However, I would say that in a legal system where there is already compulsory insurance for drivers, the defense of automatism should be removed for civil cases, to allow those injured through no fault of their own to obtain compensation for their injuries and tragically, as was the case with Kevin Gilchrist’s family, the loss of loved ones.

Roz Boynton is a partner at Road Traffic Accident Law (Scotland) LLP


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