THE HIGH COURT
DUBLIN CIRCUIT
		1995 No. 463 CA
COUNTY OF THE CITY OF DUBLIN
BETWEEN
HENRY O'BRIEN
		PLAINTIFF
AND
KILLIAN PARKER
		DEFENDANT

Judgment of Mr. Justice Lavan delivered on the 25th day of February, 1997.

	This case came before the High Court on Appeal on the 20th January, 1997 by way of an Appeal from the Order of the President of the Circuit Court dated the 20th October, 1995 dismissing the Plaintiff's claim for damages for negligence and granting the Defendant the costs of the proceedings when taxed and ascertained.
	The Plaintiff's claim was for £6,000 damages for loss and damage suffered by him owing to the negligence, breach of duty and breach of statutory duty of the Defendant, his servants or agents in or about the driving, management, maintenance, care and control of a motor car the property of the Defendant and driven by him on a public roadway at or near the junction of Crumlin Road and Clonard Road in the City of Dublin on or about the 24th day of September, 1994 when the Defendant's said motor car collided with the Plaintiff's motor car, registration number 88 D 30502 then lawfully driven by the Plaintiff's son, Paul O'Brien, on the said roadway, by reason whereof the Plaintiff has suffered loss and damage.  
	The defence filed on behalf of the Defendant denied the collision, the alleged negligence or that the Plaintiff suffered loss.  For the purpose of my decision the important issue relied upon, in the Circuit Court and on Appeal, was stated in the defence in the following terms:-

	"The Defendant suffered an attack of epilepsy without prior indication or warning.  In the circumstances the Defendant was not negligent."

	The facts of the collision and damage were agreed between Counsel on behalf of both parties and it was agreed that the actual damages suffered by the Plaintiff were in the sum of £5,093.33.  I heard evidence that at 9 p.m. on the 24th September, 1994 the Plaintiff was stopped at a pedestrian crossing.  Upon getting the green light he thereafter passed through the lights and within a short distance therefrom the Defendant's car turned into and collided with the front wing on the driver's side of the Plaintiff's car.  The Plaintiff's car was pushed across his side of the roadway onto a pole.  In addition, the Defendant collided with two other cars.  
	The Defendant, in evidence, confirmed that he was a 38 year old storeman.  He had not suffered from any significant illness prior to that evening.  He had worked on the morning of the 24th September, 1994.  Thereafter, he returned home in the afternoon.  Later he drove a member of his family to Blackrock from whence he returned home.  
	The Plaintiff worked at Leo Laboratories, Dublin since 1982.  Doctor Liam Diskin, Medical Officer of the Defendant's employers confirmed that on review of the Defendant's medical records since January of 1982 the Defendant had not attended the Occupational Health Centre with any condition which could be associated with temporal lobe epilepsy.  His record consisted of minor self-limiting medical conditions and injuries.  Doctor Diskin first became aware of Mr. Parker's epilepsy when he submitted a medical certificate from his family doctor, Doctor Fred Shackleton on the 30th September, 1994.  Doctor Shackleton's medical report dated the 31st March, 1995 was agreed.  The history therein stated was to the effect that the Defendant reported to him on the 26th September, 1994.  He gave a history of driving his car on the evening of the 24th September, 1994 when he experienced an altered state of consciousness.  Firstly, he became aware of a strange smell and reported noticing colours to be unusually vivid.  The next thing he remembered was his car crashing and an ensuing interrogation by the Garda Siochana.  When the Defendant was seen by Doctor Shackleton his memory of the events was less than 100% and he was unclear of the exact sequence of events.
	The Defendant had no previous relevant medical history.  As a result, Doctor Shackleton referred the Defendant to Doctor Ray Murphy, Consultant Neurologist.
	Doctor Roland Ling in an agreed medical report dated the 29th January, 1995 confirmed that his medical records revealed that the Defendant began attending his surgery on the 24th August, 1978 and the last recorded consultation was dated the 24th January, 1985.  At no time during that period did the Defendant exhibit any symptoms or signs suggesting epilepsy.  He was never treated for any "black-outs" or epileptiform seizures by Doctor Ling.  There was no family history of epilepsy and therefore nothing to suggest that the Defendant was prone to develop temporal lobe epilepsy.
	Doctor Raymond P. Murphy, Consultant Neurologist at the Charlemount Clinic then gave evidence.  He saw the Defendant on the 3rd October, 1994 at the urgent request of Doctor Shackleton.  The Defendant gave a history which in Doctor Murphy's view was extremely suggestive of temporal lobe seizures.
	The history taken by him disclosed that the Defendant developed a ringing in his ears and that there was then an alteration of his vision.  He got images of intense light which came and went a little bit.  He still felt able to get into his car.  He was not quite sure what was happening.  Possibly he was getting some sort of migrainous episode.  This seemed to settle down.  But while he was driving he said he felt peculiar: as though he was not quite fully there and his consciousness was in some slight way impaired.  He described this by saying that although he knew that there were cars on the other side of the road, he had to keep reminding himself of this fact.  It is not known if he lost consciousness or not at this stage, but he actually struck three cars.  He was stopped by the Garda Siochana who thought he was either drunk or on drugs, neither of which pertained.  He settled down and was obviously concerned about what had actually happened to him.
	On examination on the 3rd October, 1994 there was no abnormal signs to find in the Defendant.  His cranial nerves were normal.  His power, tone and sensation were normal, his reflexes were symmetrical and equal and his plantars were bilaterally flexor.  His heart, chest and abdomen were normal.  His BP was also normal.
	Doctor Murphy went onto perform an urgent EEG which was normal and a brain scan which was also normal.  Various routine blood tests were also all normal.  Despite the normal EEG, which is not uncommon in epilepsy, Doctor Murphy started the Defendant on Tegretol and he has had no attacks since that time.  The doctor's expert opinion and prognosis was that it was not unusual for temporal lobe epilepsy to start out of the blue.  All epilepsy would generally occur slightly more frequently in those patients who have had previous significant head injury with loss of consciousness.  But the Defendant's particular episode of loss of consciousness happened so long ago as a child that it was hard to know whether it was relevant or not.  Finally, he was of the view that there was no structural abnormality seen in the temporal lobe at that time to account for the onset of what the expert took to be his temporal lobe seizures.
	The Defendant in his evidence said he had certain experiences at home.  He said that he was able to get into his car and drove in the direction of where the accident occurred.  He had some sense of smell and felt unwell as he approached the junction opposite Crumlin Children's Hospital and as he turned down the road passing Rafters Road, Crumlin.  He says that he has no further recollection of the hundred or so yards he would have travelled until the collision took place.  The next memory he says he has is of getting out of his car and being surrounded by people, an ambulance and the Gardai.  On cross-examination he stated that his vision had been affected and that he felt it was more like a dream.  He said that he was conscious of the presence of other cars on the roadway. 
	Doctor Murphy, in concluding his evidence and commenting on the history as given, regarded the Plaintiff as suffering from a complex partial seizure.  This would allow for some consciousness on an objective basis.  This would allow a person suffering from this condition to make a decision.  There was a degree of awareness and there was a major attack on his accepting the Defendant's case history.  Finally, I heard from Garda Thomas Burke who investigated the accident and gave evidence as to the Plaintiff's condition following the collision and confirmed that the Defendant was unable to recollect questions that had been put to him moments before and did not seem to understand what was going on and was unaware of his surroundings.  This witness accepted that the Defendant was unable to understand what was going on.
	Following the conclusion of the evidence, Counsel for both parties supplied written submissions.  Mr. Hugh Hartnet submitted for the Defendant that where a Defendant proves that his actions were the result of a sudden illness the defence of inevitable accident is made out.  He conceded that the illness must result in automatism or a state of unconsciousness in which the respondent is left without control of his actions.  This submission was supported by the following decisions:-
Roberts -v- Ramsbottom (1980) 1 WLR 823.
Hill -v- Baxter (1958) 1 QB 277.
Kelly -v- Gilmore (Unreported) Supreme Court, 28th July, 1970 and
Murray -v- Gilmore (Unreported) Supreme Court, 20th December, 1973.
	In the case of Roberts -v- Ramsbottom Neill J. stated (at p.832):-

	"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."

	Mr. Mark de Blacam for the Plaintiff contends that even if were I to conclude that at the actual time of the accident the Defendant was an automaton, there was negligence on his part because the evidence disclosed that he was, at various times, conscious and thus recollects symptoms which, had he exercised reasonable care, would have led him to stop driving.  These symptoms included a ringing in his ears, an awareness of a pungent smell, an awareness of intense light and an alteration in his consciousness which he described in evidence as a "difficulty in focusing".  Mr. de Blacam further submits that the Defendant was conscious when he experienced these symptoms otherwise he would not be able to recollect them and that in these circumstances a driver who continues to drive having experienced this combination of unusual symptoms is guilty of negligence.  He also relies on Roberts -v- Ramsbottom (Supra).  
	He went on to distinguish the case of Waugh -v- James K. Allan Limited, (1964) 2 Lloyds List Law Reports.  There the defendant suffered from a coronary thrombosis while driving a lorry and died immediately after the accident.  The evidence disclosed that he had been prone to gastric attacks and that 15 minutes before the accident he was taken ill while loading the lorry.  However, it was also established that he had sufficiently recovered from this attack so as to have no ground for doubting that he was fit to drive.
	In this case there is no evidence of such a recovery on the part of the Defendant.  This situation in the Waugh case was described by Lord Reid in the following terms:-

	"We get little help from the evidence on the question whether it is safe for a man to drive soon after a gastric attack of sickness and nausea.  It does not appear that an early recurrence of these symptoms is likely.  Nor does it appear that such an attack generally leaves any substantial disability after the sickness has passed off.  Fitness to drive involves not merely ability to control the vehicle in ordinary traffic but also ability to react quickly in an emergency.  I could well understand that if such an attack is followed by severe headache or mental lassitude, the man ought not to drive until this, too, has passed off.  But there is nothing to suggest that Gemmel (the lorry driver) was suffering or was likely to have been suffering from any such disability when he drove (before the accident)."

	Finally, Mr. de Blacam submitted that the crux of the matter is that the test in negligence is an objective one.  The Court is not required to consider whether the Defendant did all he could in the circumstances nor, of course,  is perfection required of him.  The Defendant must however meet the standard of a reasonably careful driver.  It is not sufficient for a person to do his best if his best is not up to the standard of the reasonable person.  Conversely, the standard of perfection is not required, since even "the most excessively careful man will sometimes have an accident".  The question is a normative one: the Judge should ask, not in a question "how would you have acted?" or "how would the average man have acted?" but rather "how ought the Defendant, as a reasonable person have acted?"
	As to the fact that the defence is more usually associated with the criminal law, I see no reason why it should not be a defence in the civil law.
	Viewing the English case law, there would appear to be a consistent pattern of maintaining strict limits to the defence in the criminal law.  For instance, in Bratty -v- Attorney General for Northern Ireland (1963) AC 386, at page 409, Lord Denning confined the defence to acts done while unconscious and to spasms, reflex actions and convulsions.  In Broome -v- Perkins (1987) Criminal Law Review at 271, the defendant was found guilty despite suffering from hypoglycaemia as it was found that he exercised control from time to time and only a total destruction of voluntary control is consistent with automatism.  I also note that in Hill -v- Baxter (Supra), Lord Goddard CJ in the context of a driving offence essentially said the defence could arise in circumstances where the Accused "could not really be said to be driving at all" such as a stroke or an epilpetical fit.  Pearson J. also following this approach concludes that in order to get as far as he did the Defendant must have been exercising some skill and this implies some element of control thus inconsistent with the defence of automatism.  From an assessment of the various authorities opened to this Court it seems clear that strict limits are emphasised before the defence can succeed.  I am satisfied that the test to be applied is that the defence of automatism requires that there must be a total destruction of voluntary control on the Defendant's part.  Impaired, reduced or partial control is not sufficient to maintain the defence.  
	Applying this test to the evidence some of which I have heard and some of which was presented on an agreed basis, I am satisfied that the Defendant has not established this defence on the balance of probabilities.  Notwithstanding experiencing some difficulties at home he was able to make a decision to drive.  He drove some distance.  He was conscious of experiencing some symptoms as he passed the hospital and as he drove down the Old Crumlin Road seconds before the accident occurred.  In these circumstances, I hold that there was not a total destruction of voluntary control on the Defendant's part.  Impaired, reduced or partial control of which I have heard in evidence is not, in my view, sufficient to enable the Defendant to succeed in this case.  In the circumstances, I will vacate the Order of the Circuit Court.  There will be judgment in favour of the Plaintiff in the sum agreed together with an Order for costs same to be taxed in default of agreement.

SIGNED:	_____________________
	VIVIAN LAVAN