Defender successful with a ‘black ice’ defence to a claim based on negligent driving

Cars on icy road

Legal Commentary - Defender successful with a ‘black ice’ defence to a claim based on negligent driving

The decision in Smith v Fordyce and Quinn Insurance [2013 EWCA Civ 320] clearly demonstrates that with appropriate evidence, it is possible to rebut the assumption of negligence in a classic loss of control case. The pursuer failed in this case despite invoking the doctrine of res ipsa loquitur.

The pursuer was a front seat restrained passenger.  The vehicle skidded on a minor country road and the driver lost control.  The driver’s initial position was that his loss of control stemmed from the presence of black ice on the road.  Smith could not recall the moments leading up to the collision.

When the pursuer met the driver at a later date, he conceded that he believed the accident to have occurred due to his own negligence and excessive speed.  The pursuer and the driver’s insurers led conflicting expert evidence as to the likelihood of black ice on the road.  Judge Cotter QC found the driver’s initial account of events to be the preferred version and did not pay regard to his later concession. 

However, it was held that the evidence led on behalf of the insurers, was enough to remove the presumption that loss of control was due to the driver’s negligence. 

Smith appealed, but to no avail.  The Court of Appeal upheld the judge’s approach to both negligence in general and res ipsa loquitur.  The doctrine of Res ipsa stands for “the thing itself speaks.” A skid in an area with black ice was not to be deemed a neutral event but the exception to the rule.  It was not for Smith to have to show exactly how the car had skidded off the road, but there may be a combination of factors involved which could infer negligence.   The judge was persuaded that there was no evidence to suggest X was travelling at excessive speed nor was there any reason for the driver to suspect that icy conditions would be present.  Police evidence stated that a careful driver was capable of travelling through this road safely.  Where this is the case, it is for the defendant to show that it is impossible to infer negligence from their own actions.  This was achieved in the present case, and thus the burden of proof placed on the defendant was discharged.

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