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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Smith v Fordyce & Anor [2013] EWCA Civ 320 (10 April 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/320.html Cite as: [2013] EWCA Civ 320

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TORQUAY AND NEWTON ABBOTT DISTRICT REGISTRY
HHJ Cotter QC (Sitting as a High Court Judge)
OTQ0014

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/04/2013

Lord Justice Toulson:

1. 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.
2. 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:

"…having considered all the evidence I am satisfied that this accident was caused by loss of control by virtue of the presence of unforeseen and reasonably unforeseeable black ice in circumstances where no proper criticism can attach to the driver, specifically as to speed, positioning on the road or reactions having lost control."

3. 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

4. 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 scene

5. 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.
6. A police officer from Ivybridge police station, PC Carr, who attended the scene of the accident said in a witness statement:

"From my local knowledge I am aware that the road at that time was susceptible to water draining off the fields, this leading to standing water. There have been occasions when it was felt necessary to place police warning signs on the road at this location and others and to notify the Highways Authority. In addition to the standing water those problems have also included the water icing over in cold weather. Those actions have normally been following calls from members of the public."

7. 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.

The immediate aftermath

8. 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:

"4. As a result I walked down the driveway to the scene where I saw that the nearside of a blue BMW car had collided with the stone pillar at the gateway. Both occupants were out of the car and initially appeared shocked but generally uninjured. They were apparently plasterers en route to Yelverton to work and were concerned that they would be letting their customers down.

5. Both men told me that they had skidded on ice and lost control. They returned with me to my home where they were given tea. At first the passenger appeared to be relatively uninjured and declined treatment but his condition then worsened. He became unsteady on his feet and had difficulty remaining coherent. I believed [he] had suffered concussion."

9. I will come back to Mr Abbott's evidence about the weather and road conditions at the time.
10. 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:

"I was coming through there and started sliding on the black ice and began snaking and then collided with the wall."

11. 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".
12. 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.

Mr Fordyce's report to his insurers

13. 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:

"I was heading towards Cornwood and had to slow down due to there being water on the road from a stream which had been blocked purposefully by a farmer to regain some land. After the water I started to speed up not seeing the black ice. My car being rear wheel drive I had no traction. The car started to snake then totally lost control turning sideways and hitting the wall. In my opinion the farmer who caused the black ice by flooding the stream is responsible because surely this is an offence."

14. 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 issue of proceedings

15. 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 loss of control occurred notwithstanding the use of reasonable care and skill by D and as a sole and entire result of the presence of black ice which was neither foreseen by D nor reasonably foreseeable by him: alternatively, and without prejudice to the foregoing averments, if the presence of ice was foreseen or foreseeable by D then there was nothing which D could or should reasonably have done to have detected, evaded or mitigated the effect of same."

Mr Fordyce's accounts to his insurers' accident investigator

16. 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:

"4. We left home at about 06.45 hours. When we left it was cold but the weather was good and I had no reason to suppose that the road were [sic] icy, there was no frost on the car. Whilst driving to the scene, I do not recall the conditions changing and I did not see any warning of extremely cold weather such as frost on the fields and verges.

5. On the approach to the scene, the road goes downhill and around a very tight right-hand bend before levelling out and entering a gentle left-hand bend just before Cornwood [sic] House.

6. As I negotiated the right-hand bend I had reduced my speed to no more than about 20mph and I maintained that sort of speed as I continued down the hill towards the left-hand bend as I was aware that there was often standing water around that bend due to run off from the fields.

7. Having gone through the water, I started to accelerate gently but as I did so the car started to snake. I didn't know what to do as I had not experienced that before, I know I touched the brakes but that caused the rear end to slew round and I couldn't recover it, the car went sideways and hit the wall outside Moor Cross House.

8. Initially two men stopped in a van and called the emergency services and I think they said that they had skidded as well.

9. The police arrived, followed I think by the fire service and I stood by the car as the police officer was putting out signs to warn others of the accident. I remember seeing the police officer slipping on the road surface as he walked down the road with the signs. As he did so I saw another car coming down and that started to swerve and slide as well but the driver was able to stop.

10. It was then that I noticed that the road was icy, I think it was to the exit side of the standing water where it was shallower and traffic had spread the water, leaving a thin layer which had frozen to black ice on the road.

…

15. I do not believe that the accident was my fault, I had had no warning of the possibility of ice on the road, I was travelling slowly as I was aware of the standing water on the bend and once the car started to slew around there was no possibility of me being able to recover it. In my opinion the accident was caused by the water being allowed to run across the road that had frozen due to the local weather conditions, which had changed from those I was aware of as I left home."

17. 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 seeing me, he came over and we spoke. He asked me how I was and I told him that things were not too great. We got to talking about the accident and he said that he had always felt very guilty about what had happened to me and that he thought the accident was really his fault. Firstly, he had said that he thought we were going to be late to work at Yelverton that morning and had been driving fast to make up time. Like me, he seemed to recollect that the car went out of control as it came out of a series of bends and it was there that he lost control as a result of his speed and trying to over compensate. He didn't seem to know whether ice had contributed to the accident, but it might have done. However, he said that prior to picking me up he had had to clear his car of ice on the windscreen and icy and frosty conditions had been evident all the way across country from Torquay to the point he lost control of the vehicle. He said that he had stopped coming to see me because when he realised how seriously injured I had been he felt responsible for the situation because of his driving that day. He also said that he had been worried that the police might take some action against him for the accident."

18. 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:

"When we left Nick's house the weather conditions were sunny but cold. I remember that I had to scrape ice from the car that morning, showing that it had been cold enough the night before for frost/ice to form. In respect of this, I realised that I should have been paying more attention that I did to the potential for driving hazards, such as black ice forming on the roads during the night."

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

"When I approached the right hand bend I should have reduced my speed as we had travelled this route many times before and the nature of the bends in the road at this point, in addition to the potential for slippery driving conditions due to ice on the road, called for a moderate speed.

However, I had been late picking Nick up for work and we were running late, and I was more concerned with getting us to work as quickly as possible than I was with driving more carefully as conditions dictated. Unfortunately I was driving too fast which resulted in me losing control of the car on a patch of ice going through the bends and we crashed into the wall at Moorpark House at speed."

20. Paragraph 15 was to be deleted and replaced by:

"I fully accept that the accident was my fault and occurred solely as a result of me driving too fast in icy conditions, which I was aware of before beginning the journey from home that morning."

21. 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.

The witnesses

22. 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.

Mr Fordyce

23. 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.
24. 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.
25. 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."

Mr Abbott

26. 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.
27. The judge described Mr Abbott as a most careful and impressive witness. In his witness statement he said:

"The weather that morning was very cold, so much so that my wife had delayed going out due to her concerns that there may be ice on the road which is very common on the road outside our home…

On attending the scene of the accident, I had noted that there was water across the Ivybridge side of the road which was encroaching onto the Cornwood side of the road to the Ivybridge side of our gateway. This is a very common occurrence due to water running off the field directly to the Ivybridge side of our driveway…

When I attended the scene on the day, it was very cold and I saw water across the carriageway encroaching onto the Cornwood bound side of the road. I did not examine this closely and cannot say whether it had frozen or not. However, in my opinion it would have been cold enough to have done so and would have created a hazard to drivers, which they may not have been aware of until it was too late."

28. 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:

"I doubt if it stopped dead when it reached the camber, so may be it dribbled, and the dribble would be more dangerous, I suspect, than the flow, and that would be on the wrong side of the road, where the driver was coming."

He added that a dribble would be more dangerous than a flow because it would be more liable to freeze.

29. 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:

"Not, not there, it was narrowing down. It, in other words, if you imagine a feathering, it feathered down and down in the culvert there by that time."

30. 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 police evidence

31. 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".
32. 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.
33. PC Chapman said in his witness statement:

"I recall that on arriving at the scene that the road surface was very slippery with black ice on the road surface but do not recall having any handling problems as I drove to the scene. I am sure that I would recall such difficulties if they had been excessive.

My role at the scene was in connection with traffic control and I place out the police signs. As I did so I noted that the road surface was slippery under foot, the road was not white with ice or frost and I do not recall if there was frost on the adjoining fields.

I am fairly certain that the signs were placed before the left-hand bend immediately prior to Moor Cross house and they were positioned prior to the slippery section of road surface.

From my local knowledge of the area I am aware that the road was susceptible to standing water and as part of my patrol duties I have had to place out police warning signs on that section of road on several occasions due to flooding and icy surfaces usually after calls from members of the public."

34. 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.
35. PC Carr said in one of his statements:

"I personally encountered no problems in controlling my vehicle down through the various bends and into the straight section and I pulled to a halt without incident.

I cannot recall the precise point in the road where I stopped my vehicle but it would have been close to the damaged vehicle.

When I got out of the car in order to walk across to the scene of the accident, I recollect that the road felt icy.

Having worked from Ivybridge Police Station for some two years prior to the date of this accident, I was aware that this road could get icy and that in addition the road was prone to flooding as a result, I believe, of excess water coming out of the dyke in the field adjacent to the road itself. …

There may have been both water and ice present on the day of this accident but I do not recollect seeing visible ice – there may have been some black ice present. …

From my discussion with the driver I could not be precise as to the exact point at which the vehicle went out of control but I believe it was some distance back from where it came to rest, and probably as it came out of the bend before the straighter section, which I have previously described. There were no marks on the road to indicate where the skid had started but I do not believe the vehicle went out of control close to the point where it ended up."

36. In his other witness statement he said:

"I cannot recall the weather conditions at the time, I was single crewed and I do not recall if I had any handling difficulties when driving to the scene or not.

I have noted in the Accident Report Book that at the scene the "road surface on police attendance was covered in ice, not initially visible". I recall that the road was not white with ice or frost but was covered in what I would refer to as black ice by which I mean it was clear, not immediately visible against the road surface and was slippery under foot."

37. 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.
38. 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.

The expert evidence

39. 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".
40. 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:

"Attempts by the experts themselves to interpret the evidence, a fortiori with mathematical precision, are to be viewed, at the very least, with extreme caution."

41. 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.
42. In their supplemental joint statement the experts agreed:

1. The survey data can be interrogated to show the general slope of the road between surveyed points. This is shown in the diagram produced by Mr Seward.

2. The distance between the point of impact at Moor Cross House and the culvert is 54 meters.

3. The data shows that the road slopes towards the nearside on the Ivybridge bound lane for that distance.

4. The gradient of the slope gradually reduces as that lane progresses towards to the culvert.

5. Any water across the Ivybridge lane would gradually diminish in width as it flowed towards the culvert.

6. The hypotenuse of the triangle shown on the diagram is not necessarily an accurate depiction of the edge of the flow of water.

7. Depending upon the strength and extent of the flow onto the road it is probable that the initial flow of water would remain towards the centre white line for an unknown distance before it starts to feather rather than follow the simple hypotenuse."

43. Besides the natural flow of the water, vehicles travelling towards Ivybridge could obviously throw water onto the other side of the road.
44. 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.
45. 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 plan fails to show the bend in the line opposite the second marker. This has now been accepted by the experts. In my judgment it means that very great care must be taken when considering the likely path of the water given the indication of gradient arrows with the result that it provides only limited assistance. I was surprised that both experts had failed to pick up this fundamental error."

The judge's findings

46. The judge's conclusions on the subject of water on the road were as follows:

"25. Having regard to all the evidence before me, and in particular the evidence of Mr Abbott, it is my finding of fact that a vehicle proceeding as Mr Fordyce's vehicle was, in the Cornwood carriageway, i.e. towards the photographer in photograph 16 would encounter water from the field that emerged onto the Ivybridge carriageway and had crossed over the white line. It is wholly artificial to attempt to replicate the effect with anything like the precision shown in the plan produced by Mr Seward, even were that plan to be correct, which it is not. However doing the best that I can it is my finding that the water would have been over or at the white line up to the vicinity of the second post as shown in the photograph 16 and then continued on to the left, i.e. a feathering towards the culvert."

47. 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.
48. The judge's findings on the subject of ice and the cause of the collision were:

"40 So having considered all available and reliable evidence as to the weather and road conditions I find that there was ice on the road in the vicinity of the impact site and that there was also black ice where the road was wet and damp on the edges of the area of water flow down to the culvert, as no doubt affected by the passage of vehicles through the water. Vehicles would carry water on their wheels beyond the confined path of flow and some would splash or spray water across a wider area…

41. As I have indicated I do not accept for a moment that the area of moisture in and around the path of water followed a neat straight line. Its broad shape was that it feathered down. Further in my judgment the moisture and dampness would to some degree have extended beyond the edge of the feathered line of flow. As a result it is my finding that there was black ice at or over the white line at the bend in the road opposite the second marker as shown in photograph 16 and within the legitimate path of travel of the BMW driven by Mr Fordyce and carrying the claimant. This was at a point where it was still necessary for any driver travelling up hill towards the point of impact to steer around the bend.

42. I turn to the cause of the loss of control of the vehicle. As for direct evidence there were of course only two people involved. I find that the immediate comments made to Mr Abbott, as set out in paragraph 5 of his witness statement, are illuminating as both men told him that they had skidded on ice and lost control. Even if this was told to the claimant by Mr Fordyce it still reveals that it was the immediate suggestion."

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

"…that there was a significant amount of black ice on the road including into the carriageway in which Mr Fordyce was quite properly proceeding such that his far side wheels would have run over such ice at the point at which he lost control, which I find to be in the region of the second marker just beyond the apex of the left-hand bend."

50. 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.

Was the judge wrong about the immediate cause of Mr Fordyce's loss of control?

51. 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.
52. 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.
53. 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.
54. 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.

Was the judge wrong about whether Mr Fordyce was to blame for the accident?

55. 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.
56. Mr Bright concluded his cross examination of PC Carr as follows:

"Q. And we know no other incidents that day. Would you consider this fair, officer, that that would suggest that either ice isn't a problem at that location, or that the extent of it is manageable with prudent driving in the conditions and the type of country road?

A. I would agree that it's fair to say if you drove with due care then, yes, for the conditions."

57. Mr Bright's cross examination of PC Chapman ended similarly:

"Q. And I'll finally ask you the same question as I put to the other officer: given that there were no reported collisions on that day and no collisions related to ice in that 3 year period, it must follow that either it wasn't a significant problem, or that it was a problem which could be overcome with due care, as your brother officer put it.

A. That's fair."

58. 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.
59. 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.
60. 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.
61. 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:

"…the defendants must go further and prove (or it must emerge from the evidence as a whole) either (a) that the burst itself was due to specific cause which does not connote negligence on their part but points to its absence as more probable, or (b) if they can point to no such specific cause, that they used all reasonable care in and about the management of their tyres."

62. 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.
63. 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.
64. 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.

Lord Justice Moses:

65. I agree.

Lord Justice Ward:

66. I also agree.