Smith v Fordyce & Anor

Mr Nicolas Smith appeals against the dismissal of his claim for damages for injury and loss suffered by him as a result of an accident on a country road in Devon on 21 March 2007. Mr Smith claimed that the accident was caused by the negligent driving of the first defendant, Mr John Fordyce, who was insured by the second defendant, Quinn Insurance Limited. Mr Smith was a front seat passenger in a BMW being driven by Mr Fordyce. The accident occurred when Mr Fordyce lost control of the car which crashed into a wall on the opposite side of the road. No other vehicle was involved.

In a reserved judgment delivered on 17 January 2012 His Honour Judge Cotter QC found that the accident was caused by the car skidding on black ice and that no blame could properly be placed on Mr Fordyce for his loss of control of the vehicle. The judge had heard evidence over four days between 1 August and 1 November 2011. His judgment is noteworthy for its meticulous attention to detail and clarity of reasoning. His ultimate conclusion was that:

On this appeal there are two issues to consider. The first is whether the judge was wrong to find that the immediate cause of the loss of control was black ice. That is a pure question of fact. Success on that issue would entitle Mr Smith to judgment in his favour, because failure to maintain proper control of the car without a satisfactory explanation would obviously amount to negligence. If the judge’s finding on the first issue is upheld, the second is whether he was wrong to find that no proper criticism could attach to the driver in the circumstances. That is also essentially a question of fact although there was argument both before the judge and in this court about the doctrine of res ipsa loquitur. Mr Christopher Bright QC concentrated in his submissions on behalf of Mr Smith mainly on the first issue.

The accident happened at about 7.30am. Mr Smith and Mr Fordyce were on their way to work. Mr Smith was a plasterer. He was then aged 42. Mr Fordyce was a labourer. He had worked as Mr Smith’s mate for some time. Mr Smith lived in Torquay and Mr Fordyce lived in Paignton. They had been working for about six weeks on a contract at Yelverton and they used to share the driving there and back. At the time of the accident they were travelling northwards on an unclassified road from Ivybridge to Yelverton. The speed limit was 60mph. The road goes through the village of Cornwood. The accident occurred as they were approaching Cornwood at a place called Moor Cross. The vehicle ran into a wall flanking the entrance to a property called Moor Cross House on Mr Fordyce’s offside of the road. On the basis of expert evidence it was agreed that the speed at the moment of impact was between 21 and 23mph.

The road is a single carriageway approximately 6 meters in width. For vehicles travelling in Mr Fordyce’s direction, i.e. from Ivybridge towards Cornwood, on the approach to Moor Cross there is sharp right-hand bend, after which the road goes up hill and bends less sharply to the left just before Moor Cross House on the right. The land on the offside of the road slopes upwards, so that water would naturally come down towards the road from that side. At about the apex of the left-hand bend there is a culvert or gully for draining away surface water. The evidence of the owner of Moor Cross House, Mr Phillip Abbott, who had lived there for over 30 years, was that water from the fields on the Ivybridge side of his property used to be drained by a stream which ran directly to the culvert and under the road. However, the neighbouring farmer had at some time redirected the stream with the consequence that the water now ran along the side of Mr Abbott’s driveway and would spill onto the road surface by his gate. He had reported this to the local highway authority because he considered that it created a hazard.

A police officer from Ivybridge police station, PC Carr, who attended the scene of the accident said in a witness statement:

After the accident the highway authority laid kerbing along Mr Abbott’s side of the road, from his gateway to the culvert, in order to contain water within what appears to be a form of ditch between the kerbing and the adjacent land. The authority also put in three black and white marker posts, one at either end of the kerbing and one approximately in the middle. The third marker, counting from the entrance to Moor Cross House towards Ivybridge, was by the culvert. The distance from that marker to the point of impact is 54m.

Mr Abbott learned of the accident when his cleaner arrived. She had come from the Cornwood direction and had to drive around the crashed BMW in order to drive to the house. She told Mr Abbott what she had seen. In his witness statement Mr Abbott described what he did:

I will come back to Mr Abbott’s evidence about the weather and road conditions at the time.

PC Carr was the first of two police officers who attended the scene, he was not from the police accident investigation branch, but he completed a standard form of police accident report. In it he recorded Mr Fordyce as saying after caution:

Under road surface conditions he put a cross against “frost/ice”. He recorded Mr Smith as a casualty and the severity as slight. In the section of the form which asked him his initial opinion of how the collision occurred, PC Carr put that the vehicle “lost control on surface and ice and unable to regain control”. He made an additional note that the “road surface on police attendance was covered in ice, not initially visible”. Unsurprisingly in these circumstances, the police file was closed with the entry “no further action”.

There were no visible skid marks. Mr Bright fairly commented that the police might have considered making a fuller investigation if Mr Smith’s injuries had at that stage been thought to be more serious. As it was, it seems clear that PC Carr thought that he had received a credible explanation for the accident which was consistent with his own observation at the scene and did not see a need to suggest the involvement of an expert police accident investigator.

The BMW suffered severe damage. Little damage was done to Mr Abbott’s wall but Mr Fordyce gave him his insurance details. Mr Fordyce notified his insurers and on 2 April 2007 he signed a report form. In it he gave his speed before the accident at 40mph and described how the accident occurred:

He supplemented his description with a sketch plan showing water across the road at the apex of the left-hand bend and black ice on a section between the bend and the entrance to the house.

The proceedings were begun by a claim form issued on 8 January 2010. The defence was served on 10 March 2010. Paragraph 1.4. of the defence asserted:

The insurers’ solicitors instructed a collision investigator, Mr Michael Handy, to investigate the accident and provide a report. He interviewed and took statements from a number of witnesses. On or about 20 June 2010 he carried out a telephone interview with Mr Fordyce. He made hand written notes and subsequently prepared a draft statement for Mr Fordyce’s approval and signature. The judge found as a fact that the hand written notes and the subsequent draft statement reflected, albeit not verbatim, what Mr Fordyce said to him and there is no challenge to that finding. Mr Fordyce’s account as set out in the draft statement was as follows:

It was common ground that about the end of June 2010 Mr Smith and Mr Fordyce met by chance when Mr Smith was sitting in the Torquay harbour area. Sadly Mr Smith’s injury had been far more serious than was initially appreciated. He suffered brain damage with severe lasting consequences. Mr Smith gave evidence at the trial. The judge accepted that he was entirely honest, although his evidence about the accident was unreliable. Mr Smith said in his oral evidence said that Mr Fordyce was quite shocked at how many things Mr Smith still had wrong with him. His wife had previously stopped Mr Fordyce from visiting him. In his witness statement Mr Smith described the meeting in this way:

On 17 July 2010 Mr Fordyce sent back his draft statement to Mr Handy, unsigned but with a large number of corrections. Paragraph 4 was to be deleted and replaced by:

Paragraphs 6 and 7 were to be deleted and replaced by:

Paragraph 15 was to be deleted and replaced by:

After this change of position by Mr Fordyce, his insurers were added as a second defendant to the action and the defence which had previously been served on behalf of Mr Fordyce stood as the insurers’ defence.

At the trial the judge heard evidence from the five fact witnesses: Mr Smith, Mr Fordyce, Mr Abbott and the two police officers. He also heard evidence from three expert witnesses. Accident reconstruction evidence was given by Mr Barry Seward for Mr Smith and by Mr Handy for Mr Fordyce’s insurers. The insurers also called a meteorologist, Mr Norman Lynagh, to give an analysis of the metrological conditions at the time of the accident.

The only direct evidence about what caused the car to go out of control came from Mr Fordyce. His oral evidence was in accordance with his revised version, that is, that there had been ice on his windscreen before he set off on the day of the accident, that he was late for work and driving too fast, and that he lost control because he had been driving too fast and not making sufficient allowance for the possibility of ice on the road. The judge considered his evidence with great care. He found that the cause of Mr Fordyce’s change of story was his chance meeting with Mr Smith. He rejected the idea that there was direct collusion, but he concluded that Mr Fordyce acted out of sympathy for Mr Smith from a misplaced belief that it was right to help him to gain compensation from the insurers.

The judge found as a fact that “Mr Fordyce’s honest belief post accident was that he lost control due to the ice and that he was travelling at about 40 mph when he lost control.” He considered that the estimate may have been “light”, but he doubted that Mr Fordyce’s speed exceeded 50 mph and it was in any event well within the speed limit. The judge did not believe his evidence that there was frost or any significant ice on his windscreen at the beginning of his journey. He found that Mr Fordyce’s initial version to Mr Handy was his honest recollection and that his later evidence that there was frost on the windscreen was neither honest nor reliable, but was a recent invention to assist Mr Smith. There is no appeal against those findings.

The judge noted that although Mr Fordyce recanted on much of what he previously said, he did not recant on his original statement that he skidded on ice. His revised version of paragraph 7 of the statement prepared by Mr Handy was that because he was going too fast he lost control of the car on a patch of ice going through the bends and crashed into the wall. In his oral evidence he said “Ice may have played a part but it was down to me driving too fast.”

The judge considered that the lay evidence presented a consistent picture of black ice on the surface of the road caused by the freezing of water which came onto the road by Moor Cross House and ran down in the Ivybridge direction towards the culvert.

The judge described Mr Abbott as a most careful and impressive witness. In his witness statement he said:

In his oral evidence Mr Abbott was asked questions about how far the water spread across the road and how it flowed towards the culvert. He said that it appeared to go to the crown of the camber. Some of it would have dissipated towards the hedge on the other side but the bulk of it would have gone down the hill towards Ivybridge. At one stage he said:

In answer to a question whether water would have crossed to the other side of the road as far down as the culvert, he replied:

Mr Abbott’s evidence about the “feathering” of the water led to Mr Smith’s expert, Mr Seward, preparing a plan to show what would have been the flow of the water based on the relevant gradients. I will come later to the judge’s findings in relation to that part of the evidence.

The judge described the evidence of the two police officers who attended the accident, PC Carr and PC Chapman, as “consistent evidence, consistent with the simple entry in the accident report book of black ice in the vicinity of the accident”.

PC Chapman provided a witness statement to the insurers dated 31 May 2010. PC Carr provided a witness statement to the insurers dated 11 June 2010 and a statement to Mr Smith’s solicitors dated 2 July 2010. These statements were made more than 3 years after the date of the accident and their oral evidence was over a year later. Both spoke in their evidence about the difficulty of recalling matters of detail so long after the event.

PC Chapman said in his witness statement:

In his oral evidence PC Chapman made it clear that his memory was more general than specific. He could recall the road surface being slippery by the gateway to Moor Cross House but he was unable to say how far it extended. Mr Bright submitted that the effect of his evidence was to state affirmatively that the road surface was not slippery anywhere except at the entrance to the gateway, but he was less specific, and it would have been improbable that 4½ years after the accident he would have been able to say with any confidence how extensive was the slipperyness.

PC Carr said in one of his statements:

In his other witness statement he said:

In his oral evidence PC Carr said that he could not say exactly how the road was covered because it was so long ago. He could say that there was ice on the road “localised to that section of the road”. He was not asked to state what precisely he meant by “that section of road” but he said elsewhere in his evidence that he could not say how far the icy surface extended.

The judge’s summary of the officers’ evidence as being consistent with the simple entry in the accident report book of black ice in the vicinity of the accident was a fair summary.

Mr Lynagh, the meteorologist, said that on the available data the temperature was low enough for ice to form but only if sufficient moisture was present from a local source. The judge accepted that evidence. Otherwise, he said that Mr Lynagh’s evidence “added little to the consistent picture emerging from the lay witness evidence as to the presence of black ice”.

In approaching the evidence of the accident reconstruction experts, the judge reminded himself that their function was limited to furnishing him with the necessary scientific criteria and assistance based upon special skill and experience not possessed by ordinary laymen. He added that:

There was a joint statement of agreed facts covering various matters regarding the physical location and the speed of the vehicle at the time of impact. There was also a joint expert’s statement prepared during the trial regarding Mr Seward’s plan of the flow of water from Moor Cross House to the culvert. The plan showed a triangle. The base of the triangle extended from the Moor Cross House gateway to the centre line on the road. The second side was the edge of the road, i.e. the line of the curving which was later introduced. The hypotenuse ran from the central line to a narrow apex at the edge of the road at the point where the water would enter the culvert. This was intended to reflect the feathering described by Mr Abbott and the hypotenuse was meant to depict one edge of the flow of water, the other edge being the line of the curving.

In their supplemental joint statement the experts agreed:

Besides the natural flow of the water, vehicles travelling towards Ivybridge could obviously throw water onto the other side of the road.

When he studied Mr Seward’s plan, the judge was troubled by the fact that it did not show the same bend in the road as was apparent from other plans and the photographs. It therefore appeared to him that the plan was inaccurate and he raised this point with the experts and he was not provided with a clear explanation.

The judge said in his judgment that his initial reaction to the plan was that determining the flow of the water as hardly an issue for expert evidence and that the plan did not materially advance matters beyond the factual evidence given by Mr Abbott. He went on to refer to the plan’s inaccuracy as he saw it:

The judge’s conclusions on the subject of water on the road were as follows:

The distance from the second marker to the point of impact was not measured, but it was about half the distance between the culvert and the point of impact and would therefore had been in 25 and 30 meters.

The judge’s findings on the subject of ice and the cause of the collision were:

From the lay evidence the judge concluded at paragraph 80 that he was satisfied:

The judge further concluded, at paragraph 94, that having heard the expert evidence he saw no reason to change the view that he had formed on the factual evidence.

Mr Bright submitted that the judge was wrong in both parts of his reasoning, that is, that there was no sufficient evidence from the factual witnesses to justify his conclusion as to the cause of the accident and that the conclusion was contrary to the weight of the expert evidence.

As to the factual evidence, there was no witness who was able to testify to having seen black ice on the road in the vicinity of the second marker post. However, immediately after the accident Mr Fordyce reported that he had skidded on ice. The judge found that this statement was made in the honest belief that it was true, and Mr Fordyce’s description of the way in which the vehicle snaked was consistent with it being true. PC Carr understood from Mr Fordyce’s account immediately after the accident that the point at which he lost control was some distance back from the point of impact. He did not examine that spot, but he did record in the police accident report that the road surface was covered in ice which was not initially visible. Mr Abbott’s evidence was that there would be water extending beyond the centre of the road for some distance towards the culvert, which he did not attempt to measure. The judge did not accept that there was standing water by the culvert, as Mr Fordyce had said in his report of the accident to the insurers, but it did not follow that Mr Fordyce was wrong in saying that there was ice on the surface of the road which caused him to skid. The account honestly given by Mr Fordyce immediately after the accident, the evidence of the police officers about the road surface and the evidence of Mr Abbott together provided a rational basis for the judge’s conclusion that Mr Fordyce did indeed skid on black ice.

As to the scientific evidence, Mr Bright submitted that the judge failed to attach proper significance to Mr Seward’s plan showing the probable flow of water, and that the judge’s finding that Mr Fordyce skidded on ice in the region of the second marker was incompatible with that evidence. He submitted that the judge was wrong to suppose that the plan contained an error, let alone a fundamental error. The plan was concerned solely with gradients, and the bend in the road was irrelevant. I do not consider that the judge can be criticised for saying what he did, since he raised his concern during the trial and was not given an explanation. However, Mr Braslavsky QC did not dispute that there was a misunderstanding on the part of the judge in this respect. Mr Braslavsky observed, however, that the experts agreed in their supplemental joint statement, paragraphs 6 and 7, that the hypotenuse shown on the diagram was not necessarily an accurate depiction of the edge of the flow of water and that, depending on the strength and extent of the flow, it was probable that the initial flow would remain towards the centre white line for an unknown distance before starting to feather. The expert evidence was therefore not inconsistent with the judge’s factual findings. That submission is correct.

In my judgment the judge was not only entitled to reach the conclusion that Mr Fordyce lost control of the car through skidding on ice, but the factual evidence pointed strongly in that direction. As to where the skid occurred, it was impossible for anyone to pinpoint this with certainty, in the absence of any skid marks, but it must have been some distance back from the point of impact. I cannot see that the judge was wrong to conclude that it was probably somewhere in the mid region between the point of impact and the culvert. There was evidence that water would not have extended onto Mr Fordyce’s side of the road as far as the culvert, but it was liable to have extended onto his side of the road for some distance from the point of impact towards the culvert.

Mr Bright’s alternative argument was that, even if the judge was right about the immediate cause of the accident, he was wrong to hold that no proper criticism could attach to Mr Fordyce for losing control of the car. Mr Bright relied on the evidence of the two police officers, who said that they drove to the scene at some speed but had no difficulty in holding to the road, and that there were no other reported accidents in that vicinity on that day.

Mr Bright concluded his cross examination of PC Carr as follows:

Mr Bright’s cross examination of PC Chapman ended similarly:

Mr Bright submitted that the fact that Mr Fordyce lost control of his car when the police officers had no such difficulty, whether driving at some speed for the accident scene but with proper care, and the fact that no other motorists suffered such an accident, pointed to the conclusion that Mr Fordyce failed to exercise proper care.

Mr Bright further submitted that if a driver loses control of a vehicle, the doctrine of res ipsa loquitur applies, and that it is not sufficient for such a person to show merely that the cause of loss of control was a skid, because a skid is itself a “neutral event”, consistent equally with negligence or due diligence. Accordingly the burden remains on the driven in such circumstances to prove that he exercised due diligence. For those propositions Mr Bright relied on Barkway v South Wales Transport Co Limited [1949] 1 KB 54 (upheld by the House of Lords at [1950] 1 All ER 392) and Richley v Faull [1965] 1 WLR 1454.

It is undoubtedly the case that skids may occur in different circumstances and for different reasons. However, the judge found that in the present case the skid happened because of the presence of black ice which was invisible to the motorist. That is not a “neutral event”, but an unusual and hidden hazard.

The doctrine expressed in the maxim res ipsa loquitur is a rule of evidence based on fairness and common sense. It should not be applied mechanistically but in a way which reflects its underlying purpose. The maxim encapsulates the principle that in order for a claimant to show that an event was caused by the negligence of the defendant, he need not necessarily be able to show precisely how it happened. He may be able to point to a combination of facts which are sufficient, without more, to give rise to a proper inference that the defendant was negligent. A car going off the road is an obvious example. A driver owes a duty to keep his vehicle under proper control. Unexplained failure to do so will justify the inference that the incident was the driver’s fault. In the words of the Latin tag, the matter speaks for itself. In such circumstances the burden rests on the defendant to establish facts from which it is no longer proper for the court to draw the initial inference. To show merely that the car skidded is not sufficient, because a car should not go into a skid without a good explanation. In Barkway v South Wales Transport Co Limited the court took the same view about a tyre burst. A properly maintained vehicle ought not to suffer a tyre burst. It is therefore not surprising that the court held that in such circumstances:

In the present case the insurers 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 which was not visible and could not reasonably have been foreseen.

In my judgment he was right to conclude that those facts were sufficient to rebut the inference that the accident was Mr Fordyce’s fault. It was true that other drivers using that road on that morning, including the two police officers who attended the scene, did not experience any similar difficulty and that there was no history of prior accidents at that precise spot. But Mr Abbott’s evidence was clear that he had for some time regarded the road as hazardous and had reported his concerns to the highway authority. Although the police agreed under skilful cross examination that a careful driver was capable of negotiating the road safely, it is apparent from the police accident record that PC Carr did not think at the time of the accident that it was attributable to the fault of the driver. I am not persuaded by the argument that the evidence of the police officers, coupled with the absence of other accidents, ought to have driven the judge to conclude that Mr Fordyce was to blame. To say that a careful driver may be capable of driving on a dangerous road surface without an accident is one thing. To say that a person who suffers an accident because of the dangerous conditions of the road was therefore axiomatically careless is another. It does not follow as a matter of logic or human experience. If there is invisible ice on a pavement, the fact that only one pedestrian among a number had the misfortune to slip on it would not mean that the pedestrian who slipped was therefore to blame.

It is a tragedy for Mr Smith that he should have suffered a severe head and brain injury in the accident, but I do not consider that the judge’s careful analysis and conclusions can properly be faulted. I would therefore dismiss this appeal.

I agree.

I also agree.