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Initial attempts to save her leg failed and a below knee amputation was necessary which was followed by an above knee amputation. Despite our client's bravery and fortitude, the injuries deprived her of her ability to work and meant she would have to be reliant on prosthetics and the support of others for the rest of her life.
There could be no question that blame rested squarely with the defendant driver, so you would think that this should have been a fairly straightforward case. However, the defence bought a plea of 'automatism', which complicated things considerably.
It seems obvious that, in order to prove liability against someone whose actions have caused a personal injury, it is necessary to prove that they were indeed negligent and therefore were legally to blame. However, establishing that legal fault or blame requires volition on the part of the defendant or the ability to decide to act in a certain way. In certain circumstances, the defendant may decide to bring a defence of 'automatism'.
Automatism is the term used to describe an act done by a person who is not able to control what they are doing due to the sudden onset of physical or mental afflictions. These can include blackouts, a choking fit, or even an attack by a swarm of bees. Physical illnesses ranging from epilepsy, diabetes and dementia to undiagnosed obstructive sleep apnoea have also been cited as causes of automatism in previous cases.
Shoosmiths personal injury team who handled this case, explain:
'It's up to the defendant to prove automatism bearing in mind that in civil cases, the standard of proof required is merely the 'balance of probabilities'. However, the defendant using this defence must not only prove it was the automatism that lead to a total loss of control, they must also prove an absence of fault in the events leading up to the point at which control was lost.'
Ordinarily, an important first step for any solicitor representing a claimant in a personal injury case would be to obtain medical evidence regarding those injuries (in this case we commissioned expert orthopaedic, rehabilitation, prosthetics and care reports). This allows the determination of what medical and rehabilitation support (and therefore funding) the client will need and enables the claim to be accurately valued should offers of settlement be made by the other side before trial.
However, if automatism is used as a defence it is also necessary to scrutinise evidence about the defendant's medical condition, so we had to commission our own reports from a neurologist, a neuro-psychiatrist and a consultant geriatrician to allow us to counter any arguments from the other side's medical experts.
There was no dispute amongst the medico-legal experts engaged by both parties that, during the course of the journey up the motorway which lead to the collision, the defendant driver was indeed in a state of automatism. The important issues in establishing liability that needed further investigation arose out of his conduct prior to the accident.
A thorough review of his medical records revealed that he was having memory problems and other cognitive difficulties for some time prior to the accident which had resulted in his referral to a memory clinic for investigation.
We also obtained the defendant's DVLA records from which it was clear that he had applied to renew his driving licence without revealing those memory difficulties. We then secured a detailed statement from the DVLA regarding the obligations of drivers to ensure they are medically safe to drive.
No actual diagnosis of dementia was ever made in this case, but our investigations and the defendant's medical records clearly cast doubt upon whether he was safe to drive. If the defendant driver had told the DVLA of his medical issues when renewing his licence, he would probably not have been allowed on the road at all.
Choosing not to inform the DVLA of those existing medical conditions and all the other evidence we gathered made it highly likely that a court would find the defendant sufficiently culpable so that the defence of automatism would fail.
Just a few days prior to the date fixed for the trial we settled our client's claim for a seven-figure sum at a joint settlement meeting.
The defence of automatism did mean a great deal more work was required, but a settlement was agreed which accurately reflected the extent of our client's pain, suffering and loss of amenity. It also took account of her past financial losses and the future loss and expense to which she would be put as a result of her injuries.
'The successful conclusion of such a hard fought dispute without the need to undergo the stress and uncertainty of a trial has enabled our client to finally achieve closure on a traumatic and life-changing event. The settlement will enable our client to comfortably meet her future needs for housing, care, aids and equipment and to face the prospect of her inability to return to work without financial concerns.'
Our client said:
'My emotional and financial closure were achieved in an awe-inspiring way. Please convey my heartfelt thanks to everyone at Shoosmiths for their perseverance and fortitude. The wrong-doing of a demented man was put right by my team at Shoosmiths.'
If you or someone you know has suffered an injury in a road traffic accident or any other kind of personal injury, including an accident at work, our dedicated team of personal injury solicitors can help. Initial advice is free of charge and is available from our client services team on 01256696330.