When dealing with motor claims and recovering uninsured losses, we occasionally encounter defences from insurers and third-party solicitors that attribute the incident to severe weather conditions, claiming this negates any negligence on their driver’s part. While weather data might support these claims, it is essential to look beyond this defence to act in the client’s best interest.

Representing our client in county court

Recently, we represented a client in a county court case where this defence was used. The defendant owned a third-party heavy goods vehicle. Our claim was that their driver lost control and collided with our client’s barrier. The defendant argued that a gust of wind caused the collision and denied liability, stating their driver had done everything possible to avoid the incident.

The judgment highlighted that merely attributing an incident to severe weather conditions is insufficient. The circumstances and the defendant’s actions in response to challenging weather must be scrutinised. This case also dealt with the issues of early disclosure and the importance of Part 36 offers.

Presenting such a defence shifts the burden onto the defendant to prove an alternative cause for the accident. Here, the alternative cause was the wind, but to what extent?

It was essential to consider the incident’s context to establish the claimant’s potential chances on liability: Was this the worst wind ever recorded? Did it affect the location in question? Had the driver done everything possible to manage the conditions? Was driver inexperience a factor? Were there other incidents involving large vehicles due to these high winds?
The defendant’s evidence showed high winds were forecast for 2 days after the index incident date. Our research confirmed that weather conditions on the date of the accident were recorded as ‘good.
We argued that the operator was responsible for assessing the safety of their vehicle, especially given a yellow weather warning, which required road users to evaluate their journeys’ safety and take appropriate precautions in severe weather. The defendant’s representatives contended that halting operations due to a yellow warning could have significant economic repercussions. They maintained that the wind caused the incident, and their driver was not negligent.

Agreeing to litigate

Based on the above, our client agreed to litigate. During litigation, it emerged that dashcam footage existed. The defendant’s representatives failed to provide a copy until two days before the hearing, despite requests from inspection to the attempts to try and agree a trial bundle.

This footage was key. Had it been favourable to the defendant, the late disclosure would have given the claimant the opportunity to seek discontinuance without paying costs or at least a reasonable argument to do so. If such footage had been available and presented to the claimant earlier, it could have avoided litigation altogether and saved the Defendant considering costs.

However, upon viewing the footage, our view of the driver’s negligence remained unchanged. There was no sign of a gust of wind; rather, the driver appeared to drift past their designated lines on several occasions before colliding with our client’s property.

A day before the hearing, the defendant’s solicitors surprisingly chose to respond to our Part 36 offer, which was made 3 months prior to the hearing date. The importance of considering Part 36 offers when presented cannot be overstated, given the implications if accepted later. In this case, the defendant’s solicitors proposed an offer subject to liability for the sum stated in the Part 36 presented in 3 months before the hearing date. If liability was found in our favour, the defendant would then automatically find themselves paying further costs and uplift on damages in line with CPR 36.17.

Part 36 offers, from a tactical perspective, are akin to the stock market. The claimant should present offers as sell limit orders, a minimum price at which you are willing to settle. Giving genuine considering of the weakness and strengths in your case. The defendant should consider it as buy limit orders, a maximum price at which they are willing to settle based on the evidence provided and what a judge might consider acceptable.

In this case, there was nothing to be gained by returning to this Part 36. Tactically, such offers need to be presented before a Part 36 is made or for a sum lower than the initial Part 36 offer.

The trial proceeded with our unchallenged witness evidence, as quantum was agreed, subject to liability.

The defendant’s testimony was cross-examined, focusing on the dashcam footage, which showed no other large vehicles were affected, the driver was travelling at 54 mph, and there were no visible signs of severe weather.

Judge’s findings

The judge found that:

  • The burden shifted to the defendant, per the Smith v Fordyce and Quinn Insurance [2013] EWCA Civ 320 decision, to establish an alternative cause of the accident. Court of Appeal confirms that res ipsa loquitur is a rule of evidence based on fairness and common sense and should not be applied mechanically;
  • The defendant failed to do this, as the driver could have taken steps to avoid the accident, such as slowing down;
  • On the balance of probabilities, the defendant did not discharge the burden of proof, resulting in a liability finding against them.

Conclusion

For claimants, this case serves as a reminder to be diligent in challenging weather-related defences and gathering comprehensive evidence to support their claims. For defendants, it illustrates the importance of evaluating the safety of vehicle operations under adverse conditions and the potential legal ramifications of failing to do so. Fundamentally, res ipsa loquitur is a rule of evidence based on fairness and common sense.

Ultimately, this judgment reinforces that maintaining control and taking necessary precautions in challenging weather conditions are paramount, and a failure to do so can result in a finding of negligence. This case study should serve as a valuable reference for both claimants and defendants in similar situations, emphasising the need for thorough preparation and strategic litigation tactics.

Author: Ian Evans