Smith v Fordyce & Anor

In a loss-of-control negligence claim, a vehicle leaving the road may justify an initial inference that the driver was at fault. The defendant must establish facts making that inference improper. A skid alone is insufficient, but an invisible and reasonably unforeseeable patch of black ice is not a neutral event. Where the driver was not travelling excessively fast, had no reason to anticipate icy conditions and lost control because of the hidden hazard, the inference may be rebutted. The fact that other drivers negotiated the road safely, or that no other accidents were reported, does not make the driver who slipped axiomatically careless.

The appellant, a front-seat passenger, claimed damages for serious injuries sustained when a BMW driven by the first respondent left a country road and struck a wall. The trial judge, HHJ Cotter QC sitting as a High Court judge, dismissed the claim after finding that the accident was caused by unforeseeable black ice and that no proper criticism could be made of the driver.

The appellant appealed, challenging both the finding that black ice caused the loss of control and the conclusion that the driver was not negligent. The appeal also raised the application of res ipsa loquitur to a vehicle which had skidded and left the road.

Lord Justice Toulson gave the leading judgment. Lord Justice Moses and Lord Justice Ward agreed. The appeal was dismissed.

1. The trial judge was entitled to find that the immediate cause of the loss of control was black ice. The contemporaneous account given by the driver, the police evidence, the evidence concerning water running across the road and the expert evidence provided a rational evidential basis. The experts’ evidence was not inconsistent with the judge’s conclusion about where the skid occurred.
2. The doctrine of res ipsa loquitur is a rule of evidence founded on fairness and common sense. An unexplained failure to keep a vehicle under proper control may justify an inference that the incident was the driver’s fault. The burden then rests on the defendant to establish facts which make it improper to draw that inference. A bare assertion that the car skidded is insufficient, since a skid may be consistent with negligence or due care. The court applied the approach in Barkway v South Wales Transport Co Limited [1949] 1 KB 54, where a defendant faced with a tyre burst had to show either a specific cause not connoting negligence or, absent such a cause, reasonable care.
3. In this case the judge found that the driver was not travelling at an excessive speed, had no reason to anticipate icy conditions and encountered invisible black ice which could not reasonably have been foreseen. Those findings were sufficient to rebut the initial inference of negligence.
4. The absence of other accidents, and the fact that the attending police officers negotiated the road without difficulty, did not establish that the driver was careless. A careful driver may be capable of negotiating a dangerous surface safely, but it does not follow that a driver who slips on an invisible hazard was necessarily at fault.

• Court of Appeal (Civil Division): Appeal dismissed.
• High Court, Torquay and Newton Abbott District Registry: On 17 January 2012, HHJ Cotter QC dismissed the claim, finding that the accident was caused by unforeseeable black ice and that no blame attached to the driver.