Skidding; a defender’s burden

In the recent case of Nina Kennedy & Others v Veronica McKenzie [2017 CSOH 118] the question of negligence following a skid was once again considered.

The action arose following an accident in August 2013 and was brought by the surviving relatives of the deceased, Vincent Kennedy who had been a front seat passenger in a vehicle driven by the Defender, Veronica McKenzie who was his partner.

As the Defender drove west towards Oban along the A85 she lost control of the vehicle and the car began to skid to the left.  She attempted to correct the skid but had ultimately collided with another vehicle as a result of which the deceased was killed.

The Pursuers maintained the accident had been caused by the negligence of the Defender and it was not disputed that the Defender had lost control of her car.  However the Defender argued the road was unusually slippery, that she had been driving with due care and attention and had been unable to avoid the collision.  The issues in dispute were whether the road surface at the point where the Defender lost control of her vehicle was indeed unusually slippery and whether that was the sole cause of the loss of control.

It was accepted by Counsel for the Defender that the burden of proof rested on the Defender to prove on balance of probabilities a non-negligent explanation for her loss of control.  Reference was made to previous case law on this issue.  It is a well-established principal that where the facts give rise to an inference of negligence by the Defender such as where there is a loss of control of a vehicle, the evidential burden shifts to the Defender. He/she will fail unless it is proved the neutral event happened without his or her fault.  It is not enough to show that a car skidded, as a car should not go into a skid without a good explanation.

In this particular case evidence was led from numerous witnesses for both the Pursuers and the Defender.  The Defender herself had no recollection of the accident having been seriously injured.  Evidence was led by the Pursuers from a number of Police Officers who had attended the scene, all of whom stated they had never had any problem with traction on the road surface.  It was accepted the road surface was damp although none of the Police Witnesses recalled it being raining at the time.

Evidence was led by the Defender from Peter Dickson a Chartered Civil Engineer who had specialised in highway engineering for almost all of his career.  He had been asked to comment in particular on the issue of skid resistance and had come to the conclusion that the road in question did have a very low skid resistance. When tested it showed a severe deficiency as against the appropriate levels for the bend and the approach to the bend. However, there had been no wet skid accidents at the locus in the years immediately prior to the accident and Mr Dickson accepted that the way a vehicle is driven can be a factor.  Low readings themselves in terms of skid resistancy could cause a driver to lose control but this was unlikely.

Evidence was also led from two Road Traffic Investigators; Mr James McCartney for the Pursuers and Mr James Brunton for the Defender.  Mr McCartney came to the conclusion that the cause of the accident was driver error despite accepting the grip on the road surface was lower than desirable.   On the other hand Mr Brunton concluded that the loss of control was due to an unusually slippery road surface stating that he had seen nothing in the evidence to suggest the Defender ought to have been aware the road was slippery and that she had attempted to correct the situation but was unable to do so.

The evidence of Mr Brunton was dismissed entirely by the Court.  In his Judgment Lord Uist stated he found his evidence to be worthless.  There was no proper foundation for his opinion and it was clear from his evidence he was prepared to say anything that would be of assistance to the Defender.  It was also brought to the attention of the Court that Mr Brunton had produced a Report previously on the same stretch of road and had come to very different conclusions.  There was no justification for the change in terms of his Report and he had not been unbiased in his approach to the task.

On that basis and taking into account the evidence from the numerous other witnesses, Lord Uist held the Defender had failed to discharge the burden on her of establishing the cause of the accident was something other than her negligence. He therefore found her liable in damages to the Pursuers.

This case demonstrates the difficulties Defenders face in defending accidents as a result of skids.  Whilst on the face of it the Court was unable to pinpoint exactly what had caused the Defender to lose control of her vehicle, ultimately the fact that she had skidded itself was enough to establish prima facie negligence.  This forced the Defender to try and prove “non-negligence” which is a significant hurdle to overcome. The case also demonstrates the importance of carefully considering which experts you choose to lead at Proof and the importance of doing your research before instructing a Report.

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