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JMO can assist Police in determining cause of accidents to prevent errors: Forensic academic

03 Jan 2022

  • Notes need for different nomenclature due to numerous possible ways of sustaining injuries from vehicles 
BY Ruwan Laknath Jayakody  A Judicial Medical Officer (JMO) can assist the Police and the Inquirer into Sudden Deaths (ISD) in determining the nature of an incident as far as the entry of erroneous data in connection with road traffic accidents and injuries is concerned. This issue was noted in a case report on “A critique on the present Motor Traffic Act based on a case scenario” which was authored by H.T.D.W. Ariyarathna (attached to the Sri Jayewardenepura University’s Medical Sciences Faculty’s Forensic Medicine Department) and published in the Medico-Legal Journal of Sri Lanka 9 (2) in December 2021.  Transport-related injuries are on the rise in Sri Lanka and they, per P.G. Amarasinghe and S.D. Dharmaratne’s “Epidemiology of road traffic crashes reported in the Kurunegala Police Division” remain a relatively neglected topic. On the other hand, as explained in the “International Classification of Diseases (ICD) coding and classification of the causes of death (CODs) in accordance with the Tenth Revision of the ICD” by A. Minino, in a medico legal death investigation, it is critical to identify the underlying cause/s that initiated the chain of events that directly resulted in the death, as well as any other contributing factors.  In Sri Lanka, the Police Department is primarily responsible for compiling statistics on transport-related injuries. In countries like Qatar (“Analysis of road traffic crashes in the State of Qatar” by C. Timmermands, W. Alhajyaseen, A.A. Mamun, T. Wakjira, M. Qasem, M. Almallah and H. Younis), transport accident statistics are classified further into collision and non-collision crashes and any kind of injury sustained in connection with a motor vehicle is not considered as a motor traffic accident.  The term “motor traffic injuries” refers, amongst others, to incidents in which a moving vehicle collides with a pedestrian, a stationary object, another vehicle, or when the driver attempts to avoid an accident by turning the vehicle away or off.  However, Ariyarathna queried: “What about incidents that result in injury or death while a motor vehicle is stationary and being repaired, or when a vehicle catches fire? Is it reasonable to include them in the category of traffic fatalities? Is it still a road traffic accident under the Motor Traffic Act if the driver committed suicide?”  The purpose of having road traffic mortality data is to assess a country's current situation and, consequently, to assess national plans and programmes, and also assist in comparing a country's death rate to that of other countries and comparing country specific data.  Hence, Ariyarathna presented a case report which provided a detailed analysis of the Motor Traffic Act regarding what constitutes an accident from a medical and legal perspective. Case report A 27-year-old, unmarried, male, executive, with no abnormal medical or psychiatric history, but with easily irritable and offence-taking characteristics, attended his best friend’s birthday party in a hotel. The party was scheduled to begin in the evening and to conclude after lunch on the following day. The unpaved, gravel path leading to the hotel was extremely narrow, barely allowing one vehicle to pass at a time, and ran adjacent to a sizable and deep freshwater lake. This male and his friends had consumed alcohol during the previous night’s party. They had gone to the swimming pool the following morning. The deceased had been, according to Ariyarathna, “bullied” by one of his friends while he was in the pool, and he appeared unhappy and angry about it. Following that, he had abruptly stated to his best friend that he wanted to return home because his mother was waiting for him. As a result, his friend allowed him to leave the hotel before finishing the party.  Neither the deceased’s best friend nor any of his other friends had given a second thought about the deceased's safety as he left the party. The friends were well convinced that he was fit to drive home, despite the fact that they had consumed alcohol the night before. He was sober at that point. Later that night, the deceased’s best friend received a call from the deceased’s mother informing him that her son had not returned home. Following that, the Police were notified and immediately began a thorough search for the deceased.  Two days after his disappearance, a hotel employee noticed some disturbed grass near the lake, approximately 75 metres from the hotel (the scene investigation showed disturbed grass leading to the site of where the deceased had sunk with the vehicle). There had not been any visible brake marks or skid marks. Later, divers discovered the deceased’s body in a state of advanced putrefaction inside his car, deep in the lake and somewhat away from the lake bank. No features of a collision were evident. The post-mortem examination revealed that the body had undergone an advanced state of putrefaction. The presence of other fatal injuries and natural illnesses that could have been causative or contributory for his death was excluded and the COD was thereby formulated as drowning. The manner of death was left as “the possibility of suicide cannot be excluded”. His blood alcohol level was inconclusive due to the advanced state of putrefaction.  Airbags were not deployed, thus rejecting any substantial frontal collision. The key of the car was within the ignition switch lock and it was positioned in the “on” mode, which means that the vehicle was running at the time of the incident. Police investigations confirmed that the victim was not wearing the seat belt. Closed circuit television (CCTV) camera footage was available to indicate the time which he left from the hotel, alone. The vehicle had not been produced to the Government Analyst’s Department for inspection, and if such findings were available, Ariyarathna noted, it would have been an added value for the investigation. The Motor Traffic Act, as observed by C. Perera in “Legal aspects of motor traffic trauma in Sri Lanka”, has been amended, several times, to reflect the country’s development and changing circumstances.  According to the Motor Traffic (Amendment) Act, No. 31 of 1979, the term “highway” does not refer to the general highways that the public refer to. A “highway” is defined as any place over which the public has a right of way or to which the public or any segment of the public has access, as well as any place where motor traffic is regulated by a Police officer. Later, the definition of a “highway” was repealed in the Motor Traffic (Amendment) Act, No. 08 of 2009, and it was substituted as a “road” which according to the Act means “the entirety of any public way or any other road to which the public has access and includes a national highway, expressway and restricted access highway and any bridge or culvert over which such road passes”. Thus, this case fits the above description as the road on which the incident occurred was open to the public.  In certain countries, traffic accidents, per K. Golshan’s “What is a non-traffic accident?”, have been divided into two broader aspects, traffic accidents versus non-traffic accidents (crashes). When a person is injured by a vehicle, whilst the person is not directly in traffic or while not driving, the resulting injuries are termed as non-traffic injuries (Golshan, and “Death from a driverless vehicle” by S. Das and R. Menezes). Additionally, Ariyarathna pointed out that when an incident has occurred in a private road or while reversing or an accident involving only a single vehicle, it is necessary to consider a different nomenclature as there are many possible ways of sustaining injuries by vehicles while not in motion (examples – a failed jack while replacing a tire, resulting in injuries, or a vehicular fire). If such demarcations are included in the Sri Lankan statistics, that will, Ariyarathna added, present a clear picture.  According to A.W. Joachim (Inspector of Police), Appellant, and L.D. Dharmadasa, Respondent (S. C. 20/66 — M. C. Horana, 37133), the driver’s vehicle should be under their control at the wheel, if the driver is to be held accountable for any negligent act caused by the driver of a vehicle, thus indicating that a driver should have complete control of the steering wheel and vehicle. In the instant case, the victim is the sole occupant and the car was in motion as indicated by the hand brake, and the position of the key in the ignition switch.  In India, per Das and Menezes, a person was killed by a driverless lorry. The driver had parked his lorry in a natural downhill, without applying the hand brake. At the same time, he was lying down closer to the vehicle, resulting in a run over by the same. According to the Sri Lankan Law (Joachim vs. Dharmadasa), this incident is not an accident since there had not been a person in control of the vehicle or of the steering wheel. Autonomous cars or self-driving cars (in the UK) will be one of the realities soon and accordingly, the law should be adopted, Ariyarathna emphasised. Ariyarathna further questioned: “Given that the case under discussion is most probably a suicide, is it reasonable for the Police Department to treat this as a fatal accident? The Police take the medical opinion into account when determining the manner or circumstances of death. In addition, the Police consider the evidence pertaining to and surrounding the case. Unless the forensic pathologist provides the Police Department with accurate information, such incidents may be reported as fatal ‘accidents’ which will invariably result in erroneous data. Not only the Police Department but the ISD also should have accurate information in order to make an informed decision about the manner of death”.  There is, Ariyarathna explained in this regard, a widespread misconception among the Sri Lankan law enforcement authorities that determining the manner of death is not a forensic pathologist’s duty, but rather an ISD’s or the Judiciary’s.  “This is however not entirely true, as there are certain areas where no one can provide evidence except a medical officer conducting a post-mortem. However, when it comes to the Indian Law, that statement is accurate as in India, an autopsy pathologist is only responsible for determining the COD whereas the manner of death is determined by the police and is generally considered legal ("Medico legal death investigation in India: An overview" by S. Sharma and S. Bajpai). The manner of death is determined in the US by the death certifier”. The Motor Vehicle Act has, Ariyarathna pointed out, always taken into account only pure accidental causes, not suicides or homicides. According to the Motor Traffic Act, an offender who has committed a crime mentioned in the Act would be prosecuted before a Magistrate’s Court. Anyhow, the prosecution and the Judiciary apply the concept of “strict liability” against the offenders, according to the criminal law. Pertaining to road traffic offences, usually, the culpability (i.e. “Mens Rea [criminal intent or guilty mind denoting the state of mind statutorily required in order to convict a particular defendant of a particular crime]’ and ‘Actus Reus [the act or omission that comprises the physical elements of a crime]’) is not assessed with equal importance as performed in other criminal offences under the Penal Code. However, gross negligence of the offender or a criminal intention is revealed while committing a crime (incident), and the offender shall be prosecuted under much higher grades of crimes per the Penal Code such as in the case of murder or culpable homicide. Therefore, Ariyarathna argued, reporting the incidents of road traffic accidents under the term “accidents” is not exactly correct. The purpose of the Motor Traffic Act is to ensure public safety while travelling. The retrieving of data is a secondary purpose that is performed by the statisticians in order to obtain an idea about the country’s road traffic incidents. As a result, thorough care should be focused, Ariyarathna maintained, while compiling data to represent the country since all the incidents taking place on roads are not accidents. According to the Act, collision is possible, resulting in an accident, along with another vehicle, animal or object. Anyhow, a sufficient number of “accidents” can occur without a collision, as demonstrated in this case. In other countries (“Implications of estimating serious road traffic injuries from hospital data” by K. Perez, W. Weijermars, N. Bos, A.J. Filtness, R. Bauer, H. Johannsen, N. Nuyttens, L. Pascal, P. Thomas, M. Olabarria and The Working Group of the WP7 Project), the first harmful event should be analysed so as to determine whether a collision occurred or not. In this case, according to Ariyarathna, the first harmful event would have been that the vehicle was driven into the lake in order to commit suicide.  Ariyarathna opined that the lack of consensus in the definitions related to the different types of transportation injuries may cause practical difficulties.  In the Sri Lankan context, Police records are the main source of monitoring such injuries. However, Ariyarathna elaborated that it is the responsibility of the academics in the health sector to highlight the importance of the subtle differences that exist in the words used at present by the statisticians and even by forensic pathologists.  “Does the instant case count as an accident? Is it a road traffic collision, leading to a fatal incident? The term ‘accident’ describes an act that is random, unexpected, unintended, sudden, unpreventable and an uncontrolled event, most importantly with nobody’s fault. That is why the term ‘road traffic injuries’ is preferred than the term ‘accident’ (Perez et al. and "When a crash is really an accident: A concept analysis” by N. Knechel).  “Therefore, according to the legal perspectives based on the Motor Traffic Act, the law is only focused on accidents. The Act expects to prevent unwanted injuries or mishaps while driving and thereby safeguard the public. But in the context of medicine, it is not wise to use the term ‘road traffic accidents’, and instead, ‘road traffic injuries’ is preferred as there may be other kinds of injuries by way of acts of suicide and homicide,” Ariyarathna concluded. The time of death and identification were not issued in this case because CCTV evidence for the time he left the hotel and his identity card were available. The putrefactive changes were also considered to assess the time since death, such as the peeling off of the skin. “Traffic laws have been enacted to ensure the safety of the society. The Police Department compiles statistics on road traffic ‘accidents’ primarily from incidents or traffic violations reported under the Motor Traffic Act. The Act is concerned with accidents in their purest form. The traffic law violations are prosecuted at Magistrate’s Courts and if the victims wish to obtain compensation, they have to go to civil courts in order to recover money as compensation.  “Regardless, if an incident does not qualify as a pure and simple accident, it should not be included in the mortality statistics as ‘fatal accidents’ even if it complies with the Motor Traffic Act. Thus, a JMO can assist the Police and the ISD in determining the nature of an incident when otherwise erroneous data is entered. Finally, the COD was stated as ‘drowning’ while there was no way to exclude the possibility of suicide as the manner of death.” 


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