PI Brief Update

Smith v Fordyce and Quinn Insurance [2013] EWCA Civ 320 - Dr Nicholas Braslavsky QC, Kings Chambers

15/04/13. C was the front seat passenger of a motor vehicle being driven by D1. The vehicle skidded on a bend on minor country road in Devon. D1 lost control and the vehicle struck the gatepost of a house with force. C suffered a head injury. D1 informed the police and his insurers (D2) that the loss of control occurred because of the presence of unforeseeable black ice. C had little recollection of the events. Meteorological evidence confirmed the likelihood of black ice in the vicinity. Following the commencement of proceedings and a chance meeting between D1 and C, D1 revised his position and alleged that although there might have been black ice in the vicinity the loss of control occurred because the vehicle was being driven too fast and, in the circumstances, negligently. D2 successfully applied to join the action alleging that D1’s revised version of events was false (for a reason not positively asserted) and that the initial version was correct and the collision occurred because of a non-negligent skid on black ice. Both C and D2 called expert evidence which disagreed as to the likely location of the skid and the reasons for the collision. The trial Judge held that D1 was untruthful and that, on the facts, D2 had laid a sufficient evidential foundation to rebut the presumption in a case such as this that an unexplained loss of control was caused by the negligence of the driver (D1). C appealed unsuccessfully. The Court of Appeal upheld the Judges approach to both the issue of negligence generally and the specific application of the maxim res ipsa loquitur.  Toulson LJ (as he then was) giving the Judgment of the Court held that a skid in the presence of black ice was not to be regarded as a ‘neutral event” (see Barkway v South Wales Transport Co Limited [1949] 1 KB 54) but an unusual and hidden hazard. The doctrine of res ipsa is a rule of evidence based on fairness and common sense. C need not show precisely how the event occurred in order to succeed under the maxim. There may be a combination of factors which, without more, lead to the drawing of a proper inference of negligence. A car going off the road is an obvious example. Unexplained failure to maintain proper control will justify the drawing of the inference. In those circumstances, the burden lies upon the defendant driver to establish facts from which it is no longer proper for the Court to draw the initial inference. That burden was discharged in this case and the Judge was correct in arriving at that conclusion.

The ratio of the case re-states principle. However, what clearly emerged from the case was the appreciation that (a) the presumption of negligence can be rebutted even in a clear loss of control case but (b) only on the basis of clear, cogent and compelling evidence (lay and expert) which would justify depriving an ‘innocent’passenger  from a remedy in damages. The slightly unusual feature of the case is that the Court reached that conclusion notwithstanding the driver’s own concession of negligence (albeit late via a volte face).

Dr Nicholas Braslavsky QC
Kings Chambers 

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