Should Medical Examination
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be Compulsory? Asks Our Legal Adviser
The Victim of an Accident Resultingfrom a 'Driver Dying at the Wheel has No Legal Remedy : Should Employers' Liability be Widened?
I EVERAL instances of drivers dying• at the wheel from natural causes have been reported in the Press in the past few months, so that one can safely ume that it is not an occurrence so rare as to call • no precautions on anyone's part—if any precautions uld prevent what might be a disaster to other road a.s. In at least one of these cases, a public service tide was involved.
is true that .many organizations require their ployees to undergo some form of medical test, but re are many which do not and, of course;, there is doubt that most drivers have probably not had a dical examination since they were in the Services—if ted they ever were.
'n my opinion, there is no logical argument ,against h an, cxarnination. Indeed, the application form for grant or renewal of a licence contains express ries on the state of health of the applicant which st.. be answered, thus acknowledging tacitly the )ortance of discovering any physical weaknesses, it is obvious that it is heavy odds against knowing true state of one's health without' reference to a dical opinion.
lie legal implications from a driver dying or losing isciousness at. the wheel and an accident resulting, ich is surely almost inevitable in the circumstances, interesting, but in many ways most unsatisfactory any victim of the mishap. It was decided by the art' of Appeal in1938, in a case where avehicle unted the pavement and pinned. a pedestrian against /all with the driver unconscious at the wheel, that in absence of any particular reason for suspicion on part of the employers that their driver was unfit to re, there was no negligence on .their part and the intiff was without a remedy.
The Real Danger t might, therefore, be different if the man were ently and obviously unfit to drive; the employers who mitted such a person to drive one of their vehicles ald be doing so at their peril. But it is the man, larently fit, whose unfitness can be disclosed only by tedical examination, who is the real danger, and as a ilt of whose dying no victim can recover anything. kri effort was made in a Scottish case in 1950 to bring ne the responsibility for such an accident to the fer by a different method of approach. In that a, a bus collided with a lorry and a passenger in the was injured. She brought an action against the bus rer who, in his defence, alleged that a moment before accident he suffered a temporary loss of conscious3 because of a fit of epilepsy.
'he plaintiff then based her case on the allegation t it was the driver's duty, when applying for a licence, lisclose that he suffered from lapses of consciousness ch might make his driving a danger to the public, ch is the criterion embodied in Section 5 (1) of the td Traffic Act, 1930. .
t might be added in parenthesis that "epilepsy or Ility to sudden attacks of disabling giddiness or fainting" are both specifically mentioned in Regulation 5 of the Motor Vehicles (Driving Licences) Regulations, 1947, as disabilities which disentitle the person concerned even from the right to a driving test. Moreover, by Section 112 (2) of the Road Traffic Act, 1930, a penalty is provided for the making of any false statements on an application for a licence and for any false statements or withholding of "material information" on an application for a certificate.
It was held, however, that although there had been a breach of both the Act and the Regulations, that did not give a right of action for damages to the person who was directly, affected by the driver's offence.
A much more logical approach to the question of a driver's (or his employer's) responsibility for accidents arising directly out of his own unfitness to drive is clearly recognized where the unfitness is caused by the influence of drink or drugs, or to his being overcome by sleep while at the wheel.
Falling Asleep While Driving In 1945, a case arose when a driver who had been working all night fell asleep at the wheel at 9 a.m. and ran into the rear of a marching column of soldiers. He was prosecuted for driving dangerously and for driving without due care and attention, and his defence—that he simply fell asleep at the wheel—succeeded before the magistrates.
On appeal to the Divisional Court, it was held that a person who allows himself to drive when asleep must be guilty at least of driving without due care and attention, because it is his business to stay awake. If drowsiness overtakes him, he should stop and wait.
This decision is in contrast to those cases where what has been called an "Act of God" supervenes to make momentarily unfit a driver who normally is a perfectly fit and proper person to drive. Thus, if a man is suddenly struck by a stone and rendered unconscious— or even, it has been held, if he momentarily loses control through a wasp settling on his eye while driving—he clearly should not be made responsible criminally, or civilly in damages, for what occurs as a result.
However, although this is clearly in accord with commonsense—and might be extended to cover the case of the man with a sudden loss of consciousness because of a physical defect which no normal medical exarnination would have revealed—it is difficult to see why someone should not be made responsible for seeing that employees who drive, and, in the case of owner-drivers, they themselves, are fit to do so as far as present medical knowledge can show.
It is not enough to say that responsibility should lie only if the driver were "obviously unfit "; if he were apparently fit and a doctor could tell that in fact he were not, he should, be presumed to be "obviously unfit." The argument for the introduction of some form of medical inspection is given greater weight by every example of a driver losing consciousness at the wheel,. and by the stringent provisions as to the health of drivers in some other countries.