Smith v Fordyce and others (Court of Appeal, 10 April 2013)
The claimant, who sustained injury when the defendant’s vehicle skidded on black ice, appealed the decision to dismiss his claim.
The Court of Appeal found that the trial judge was entitled to dismiss his claim without criticising the driver where the cause of the accident was judged to be unforeseen black ice, rather than driver error. The Court of first instance found that the defendant was not driving too fast, he had no reason to think the road was dangerous and the danger was neither visible nor reasonably foreseeable. They added that skidding was not, in itself, enough to establish negligence against the driver.
Comment – Insurers can take comfort in knowing that they can successfully challenge the doctrine of Res Ipsa Loquitur and the presumption that a driver who loses control of their vehicle is negligent. The Insurer must demonstrate that the driver had taken all reasonable care, notwithstanding the fact that the danger was not visible, and that there was good reason for the loss of control which was not attributable to the driver. An unexplained loss of control would not rebut the presumption. It will require a case-by-case analysis but if an Insurer can satisfy the test, then no liability will attach to the driver. Lord Justice Toulson opined that to say a careful driver might be capable of driving on a dangerous road without incident is one thing; to say a person who suffered an accident because of dangerous road, and was, therefore, negligent, is quite another.