The bad weather of the last few winters has seen a large number of motor claims arise from skids on icy roads. Can insurers find ways to avoid liability or will liability inevitably attach?
Scottish cases on the matter (Thomson v Brankin 1968 S.L.T (Sh.Ct.)2, and McGregor v Dundee Corporation 1962 S.C 15) demonstrate that the occurrence of a skid is simply one fact which must be taken into account with the other circumstances of the case in deciding whether or not negligence can be established. It cannot be considered in isolation from the other facts.
In certain circumstances the occurrence of a skid does not in and of itself infer negligence, for example, where a road surface is so icy that even with reasonable care on the part of a driver the vehicle will skid. On the other hand, if the road conditions are such that reasonable care would have avoided a skid, then the fact that a car skidded could lead to an inference of negligence.
Thomson suggests that once a pursuer has proved his vehicle was struck in icy conditions through no fault of his own, the burden shifts to the defender to demonstrate why there was no negligence on his part. In Thomson the defender was unable to demonstrate that the skid was unavoidable. However, if a defender can demonstrate that they were driving carefully and at an appropriate speed for the conditions then they might be able to avoid a finding of negligence (Gibson, Mercer & Co Limited v Partridge 1957 S.L.T (Sh Ct) 56.)
When dealing with a claim in which the insured has skidded on ice and lost control of their vehicle it is essential to assess the standard of driving with reference to the road conditions. If a speed of say 20mph was warranted and an insured was travelling at 30mph then that might infer negligence as the skid might have been avoided at the reduced speed. If, however, there is evidence that irrespective of the manner of driving a skid would always have occurred, a pursuer might struggle to prove negligence. Obviously expert or police evidence may be required to establish a defence. It is also imperative that the driver in question will be able to give credible and reliable evidence.
In short, the fact that an insured skidded on ice in poor conditions is not the determining factor either for or against liability. It is however important to weigh the quality of driving in all of the circumstances in order to assess whether or not a claim can be defended.
Angus Gillies
Trainee Solicitor
E: agi@bto.co.uk
Posted 01.03.12