Sleep apnoea contributed to fatal crash

A valuable lesson came out of the case of R v Soutar, heard recently
at Newcastle Crown Court.

The odds seemed stacked against Gordon Soutar. He admitted to being at the wheel when his white BMW veered into oncoming traffic, colliding with a van whose driver was fatally injured. However, the message from the case was this: look beyond what appears to be a cast-iron prosecution case; it pays to dig deeper.

Dangerous driving

On 12 November 2012 on the
A1 near Newcastle, Mr Soutar was driving a white BMW when his car crossed carriageways colliding with a small van. The driver of the van died and his passenger suffered injuries. Mr Soutar was charged with causing death by dangerous driving.

The crown’s case was built around independent witness testimony of seeing a white BMW driving erratically.
One witness said Mr Soutar
had overtaken five cars, pulled
back into his carriageway and then drifted onto the opposing carriageway within one to
two seconds. Two other witnesses had noted a white BMW driving erratically.

Mr Soutar had no recollection of the accident. He did not dispute that his vehicle crossed into the opposing lane of traffic. His defence was that, for all purposes, he was not driving at the time but was momentarily unconscious, a condition brought on by an undiagnosed sleep disorder.

Mr Soutar ran a defence of non-insane automatism. The trial turned on whether, in the legal sense, he was ‘driving’ the vehicle when the accident happened. The test is whether a person is in a substantial sense controlling the movement and direction of the driving.

The defence argued that
Mr Soutar was experiencing a ‘micro sleep’ and therefore not
in a substantial sense controlling the movement of the car. He was not responsible, as he was an automaton.

Epworth test

Sleep apnoea is a condition over which the sufferer has no control and of which they may be completely unaware. It stems from repeated interrupted breathing during sleep due to the excessive narrowing of the upper throat. This causes light, broken, unrefreshing sleep, resulting in sleep deprivation.

Chronic sleep deprivation results in excessive daytime sleepiness, leading to a phenomenon known as ‘micro sleeps’. A micro sleep can last from a fraction of a second to up to ten seconds. The sufferer will not know it has happened. This can increase the risk of a car accident sevenfold. It is believed that excessive sleepiness may be a factor in up to 20 per cent of all car accidents.

The first test for sleep apnoea is the Epworth test. A person scoring higher than 12 will be referred to a sleep clinic. They
are then subjected to a polysomongraphic sleep study. This is a gold standard test, the results of which cannot be faked.

An expert concluded Mr Soutar was suffering from obstructive sleep apnoea syndrome, and could have suffered a micro sleep leading to the accident. He advised that a person can undertake a complex manoeuvre during a micro sleep without having any conscious recollection of events. He concluded that a micro sleep played a major role, i.e. but for the micro sleep, the accident would not have happened.

The jury found Mr Soutar not guilty. SJ

Key points

• This is not an isolated case in terms of the defence run at the Crown Court.  There have been several reported cases over the last five years, in particular involving HGV drivers.
• However, such cases are not common; all are fact-specific and need to be considered individually. Sleep apnea is not a common condition.
• In cases where a driver appears to be at fault ?and cannot recall the incident, it is important to consider all medical and mechanical avenues.
• Obtain a full medical history. Other conditions could play a part, including blackouts, fainting, heart attack, seizures, and hypoglycaemia.
• Instruct an appropriate medical expert to consider various conditions.
• The defence of automatism can be considered in defending civil cases and more often than not in damage rather than personal injury cases. Although such a defence ?is available, it is difficult, and careful consideration ?is needed.