Ice on the road - what defence do motorists have in an accident?

Another freeze and another dilemma for drivers to decide whether or not to take a risk and drive to work. Putting aside such questions as the importance of your journey and the risk to your own safety, what is your liability to others if you lose control on ice and cause an accident?

The civil law acknowledges that while a careful driver might be capable of driving on a dangerous road without an accident it does not follow that a driver who did suffer an accident because of dangerous road conditions was therefore careless or negligent.

If a driver loses control of a vehicle, skids and crashes, the legal doctrine of res ipsa loquitur applies - namely that the facts speak for themselves - and the driver has the burden of  proving he was not driving negligently.

Where there is snow and ice on the road, drivers will be expected to drive with extreme caution. With stopping distances 10 times longer in ice and snow, gentle manoeuvres are the key to safe driving. Evidence of vehicle speed will obviously be a crucial consideration. The AA and RAC advice to drivers includes making sure that your vehicle is better prepared for snowy driving such as ensuring good visibility, proper checks before setting off (clearing snow from the roof, cleaning and clearing lights, checking tyre depths) and when on the road using common sense including use of headlights when visibility is seriously reduced.

In terms of expectations of reasonable driving behaviour, a Court would be asked to consider whether the driver was negligent because the skid / loss of control was due to the driver's failure to follow winter driving advice - for example, the gentle use of brakes, staying in high gear and keeping revs low (to reduce wheel spin), reducing speed before turning and knowing how to drive and steer if you go into a skid.

All of these factors will be considered in any civil negligence case and evidence that these were ignored or poorly executed could result in a finding of negligence.

In contrast, the existence of black ice on the road could be a hidden hazard and a resulting skid may be explained as being as a result of an unforeseen danger. This was explored in the 2013 court of Appeal case of Smith v Fordyce which related to a road accident when Mr F was driving and Mr S was a front seat passenger. On the day of the accident Mr F lost control of his vehicle and crashed into a wall outside a hamlet in the Devon countryside. No other vehicles were involved but Mr S was injured.

At the scene both driver and passenger told the police and witnesses that the car had skidded on black ice. The police were able to confirm the road was icy, found no evidence of skid marks and closed their file. Mr F (who subsequently changed his evidence at trial) said there had been no warnings or signs of ice that morning and that he had been travelling at no more than 20mph when the accident occurred.

The Claimant alleged negligent driving against Mr F and relied on the driver's own change of evidence (that he had in fact scraped ice off his car that morning) and the fact that both attending police cars did not skid on the ice and neither did any other motorists - implying that Mr F must have been driving carelessly.

The Judge found that the original evidence of Mr F and all the supporting evidence showed that he was not travelling at excessive speed and he had no reason to anticipate icy road conditions. The case was dismissed and the judge's decision was upheld by the Appeal Court.

Comment: The key difference here is that the driver had no warning of  the risk of black ice on the road and had no chance to adjust his driving. These days, however, many cars have warning indicators when outside temperatures drop below 3-4 degrees. This is because it is recognised that a warm car and outside air temperatures may mask an icy road.  Drivers who have been warned in this way cannot plead total ignorance of the potential hazards. Technology raises the bar in these cases.

For more information on this please contact Flora Wood.

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