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Smith v Fordyce, Court of Appeal, 10 April 2013

15 April 2013
The issues:

Road traffic – ice – loss of control – RTA

The facts:

Mr Smith and Mr Fordyce were on their way to work. Mr Smith lived in Torquay and Mr Fordyce lived in Paignton. They had been working for about 6 weeks on a contract at Yelverton and they shared the driving there and back. On the 21st March 2007 at about 7.30am they were travelling north on an unclassified road from Ivybridge to Yelverton. The speed limit was 60mph. As they were approaching a village called Cornwood at a place called Moor Cross the vehicle ran into a wall on the offside of the road. Mr Fordyce was driving. At the moment of impact the speed was between 21 and 23mph. The road at this point was susceptible to water draining off the fields which sometimes led to standing water. In addition to the standing water those problems had included water icing over in cold weather. After the accident, the highway authority had laid kerbing along one side of the road to contain the water within a sort of ditching between the kerbing and the adjacent land. They had also put in 3 black and white marker posts to mark the sharp right hand bend at that point. Having heard the evidence, the judge concluded that there had been ice on the road in the area of the impact site and black ice where the road was wet and damp on the edges of the area of road. The judge found that the point at which Mr Fordyce lost control he had run over black ice and that this caused the loss of control. The judge could not be criticised for this conclusion of the evidence.

The judge was also criticised by the claimant for finding that no criticism could attach to Mr Fordyce for losing control of the car. It had been argued for the claimant that if a driver lost control of a vehicle, the doctrine of res ipsa loquitur applied and that the burden remained on the driver to prove that he exercised due diligence. The skid itself it was argued was a ‘neutral event’ consistent equally with negligence or diligence.

The decision:

It was true that skids could occur in different circumstances and for different reasons. However, the judge had found that this skid happened because of the presence of black ice invisible to the motorist. That was not a neutral event but an unusual and hidden hazard. The doctrine in the maxim res ipsa loquitur was a rule of evidence and should not be applied mechanistically but in a way which reflected its purpose. The maxim spoke for the principal that in order for a claimant to show that an event was caused by the negligence of the defendant, he need not show precisely how it happened. He might point to a combination of facts which were sufficient to give rise to a proper inference that the defendant was negligent. An example was a car going off the road. A driver owed a duty to keep his vehicle under proper control and unexplained failure to do so would justify the inference that the incident was the driver’s fault. The burden rests on the defendant in such a case to establish facts from which it was no longer proper for the court to draw that inference. In this case the insurers had satisfied the judge that Mr Fordyce was not travelling at an excessive speed; that he had no reason to anticipate icy road conditions; and that he skidded on a patch of black ice that was not visible and could not reasonably have been foreseen. The judge had been right to conclude that those facts were sufficient to rebut the inference that the accident was Mr Fordyce’s fault. Appeal dismissed.

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