Smith v Fordyce and Quinn Insurance Ltd [10.04.13]
Court of Appeal holds Defendant not liable where car skidded on black ice causing serious injuries to passenger.


The outcome of this case is not surprising. The Court of Appeal has taken a pragmatic and sensible approach. However, it is helpful that the Court of Appeal has made the point that, just because an accident has occurred, it does not have to follow that there was fault on the part of the driver.

Insurers will also be reassured to see the robust stance taken to the change of evidence by the Defendant in an effort to support the claim. This serves as a reminder of the importance courts place on contemporaneous evidence. The earlier evidence is provided, the more reliable it is likely to be considered to be, regardless of any attempts to step away from that evidence at a later date.


The Claimant was the front seat passenger in a BMW being driven by the Defendant. An accident occurred when the Defendant lost control of the car, which crashed into a wall on the opposite side of the road. As a result, the Claimant suffered brain damage with severe and permanent consequences.

Initially the Defendant denied liability. However, after becoming aware of the severity of the Claimant’s injuries he changed his evidence. He claimed that the accident was his fault on the basis that he was driving too fast and should have been looking out for black ice.

At first instance, His Honour Judge Cotter QC found in the Defendant’s favour. He found that the Defendant had changed his evidence to assist the Claimant. He held that the accident was caused by the car skidding on black ice and that no blame could be placed on the Defendant.


On appeal, Lord Justice Toulson held as follows:

  • Cause of accident - the Judge was entitled to reach the conclusion that the Defendant lost control of the car as a result of skidding on ice. The factual evidence pointed strongly in that direction.
  • Blame - the Defendant was not at fault. The maxim of res ipsa loquitor (the matter speaks for itself) did not apply. The Judge was satisfied that the Defendant was not travelling at excessive speed, he had no reason to expect icy road conditions and the black ice was not visible and could not reasonably have been foreseen. A witness living near the scene of the accident had for some time regarded the road as hazardous. Although the police agreed under cross examination that a careful driver could have negotiated the road safely, this did not automatically mean that the Defendant had driven in a careless manner.