PROOF OF NEGLIGENCE Res Ipsa Loquitor The thing speaks for itself.

WHEN THE MAXIM RES IPSA LOQUITUR APPLIES There are a number of factors which the court may take into account when determining, as a matter of fact, whether or not reasonable care has been taken, considering all the circumstances of the case. These are questions of fact and should not be elevated to the status of propositions of law. Under civil law (as distinct from criminal law) the burden of proof required is that the Plaintiff must establish "on the balance of probabilities" that the Defendant has been negligent. However, in certain situations, a presumption arises that the accident must have been caused by negligence, and then the Defendant must disprove negligence. Easson v LNER [1944] 2 All ER 425, CA The infant plaintiff, a boy aged five, travelled in the company of his mother on an express corridor train from Newcastle to London. Soon after the train had left Grantham station, the boy was allowed by his mother to go to the lavatory. He went down the corridor of the coach and fell through a door on the off-side of the train on to the railway line and was seriously injured. There was no evidence how the door became open. It was in proper working order, fitted with a proper lock and provided with a safety catch which would have prevented the door from flying open even if it had been improperly shut. There were no means of opening the door from inside, it could only be opened by lowering the window and turning the handle outside the carriage. It was contended that since the

infant plaintiff was too small to have opened the door from outside himself, the case was one in which the doctrine of res ipsa loquitur would apply, and- the onus was on the defendants to establish absence of negligence:HELD: though it was the duty of the railway company to inspect the carriagedoors and see that they were properly fastened before the train leaves a station, the doors were not continuously under their sole control in the sense necessary for the doctrine of res ipsa loquitur to apply, and the mere fact that a door came open was not in itself prima facie evidence of negligence against the railway company.

Consideration is given here to the question of how far the doctrine of res ipsa loquitur is applicable to accidents caused by the opening of railway carriage doors. It is essential to the application of this doctrine that the thing causing the accident should be wholly under the control of the defendant and the court holds that on a long journey it is im possible to say that the doors are so continuously under the control of the railway company that upon the happening of an accident through an open door the burden is upon the company to disprove negligence. Not every plaintiff can get to the jury by intoning the magic of the Latin phrase. For the Res Ipsa Loquitor doctrine to apply, the circumstances must support an inference of negligence. Most courts hold that the plaintiff can make a case for the jury under Res Ipsa Loquitor by showing that: Accident does not occur without the Negligence:

1.

Byrne v. Boadle In Byrne v. Boadle, the plaintiff was a pedestrian who was struck by a barrel of flour as he was walking adjacent to the defendant's shop. Although it was a fair inference that the barrel had come from the defendant's shop, the plaintiff was unable to show that the defendant had been negligent in any particular way. Nevertheless, the court thought the happening spoke for itself and the jury was permitted to find that the defendant was negligent, albeit in unspecified ways. In Byrne, the plaintiff did not prove, either circumstantially or otherwise, that the barrel had been stored on its side instead of standing up, or that a rope holding the barrel had been frayed or broken or any other particular act that could be counted as negligent because they could be evaluated in terms of their costs, risks or justifications in customary practices. The claim was only that circumstances warranted the belief that the defendant was negligent in a wholly mysterious way. Things must be under the defendant's control:

2.

The second requisite for the operation of the rule is that the thing which caused this injury must be under the defendant's control. This statement should not be literally understood because it is not always necessary that defendant must be in actual control. It is enough that the defendant has the right of control or opportunity to exercise it. The important case on this point is Gee v. Metropolitan Railways where the door of Railway compartment flew open shortly after it had left a station and the
plaintiff who fell out was held entitled t o recover damages.
3. Accident not due to Voluntary Action (Reason of occurrence must be

unknown to claimant):

Under the third condition it is required that plaintiff should not be responsible for the accident in any way. There must be sufficient evidence t o eliminate the plaintiffs contribution in the happening of the accident In Shyam Sunder V. State of Rajasthan and the Supreme Court has held that the driver was negligent in putting the vehicle on the road. It is clear that the radiator was getting heated frequently and that the driver was pouring water in the radiator after every 6 t o 7 miles. It is clear that accident does not occur in the ordinary course of things and the plaintiff is not responsible for accident; it is the driver who is responsible for accident and the maxim res ipsa loquitur is attracted.

ITS EFFECT Colvilles Ltd v Devine [1969] 2 All ER 53, HL The appellants owned a steelworks in Scotland. A process for manufacturing steel by the injection of oxygen into converters containing 100 tons of molten metal had been installed 4 1/2 months before the relevant day. The oxygen originated from the works of a third party approximately one mile away. It was supplied by means of a pipe, which belonged to the third party, which was connected up to the main distribution centre in the works. At the main intake there was a filter for the purpose of removing foreign bodies from the oxygen stream. From the main distribution centre the oxygen was taken by a hose, under the control of the appellants, to a lance by means of which it was injected into the molten metal. The respondent was employed in the steelworks by the appellants. On the relevant day, he was working on a platform some 15 feet from the ground when there was an explosion in the proximity of a converter approximately 75 yards away. Scared by this explosion, he jumped off the platform and sustained injuries, in respect of which he claimed damages from the appellants. In evidence, the probable cause of the explosion was given as a fire resulting from the ignition of particles in the oxygen stream by friction,

which caused the hose to bum. The appellants had received no warning of any such dangers from the makers of the plant, nor had any comparable mishap occurred previously. Held: (i) the plant (including the, hose which caught fire) was under the management of the appellants and, since an explosion of such violence would not have occurred in the ordinary course of things if those who had the management had taken proper care, the maxim res ipsa loquitur applied; (ii) it was not necessary that there should be positive proof of the existence of the particles in the oxygen stream in order to establish the appellants explanation, but for that explanation to be available as a defence it must be consistent with no negligence on their part; accordingly, the appellants not having adduced evidence of any inspection of the filters in the oxygen stream, they had not discharged the onus imposed on them by the maxim. Appeal dismissed. Ng Chun Pui v Lee Chuen Tat [1988] RTR 298, PC The first defendant was driving a coach owned by the second defendant westwards in the outer lane of a dual carriageway in Hong Kong. Suddenly the coach crossed the central reservation and collided with a public light bus travelling in the inner lane of the eastbound carriageway. One passenger in the bus was killed, and the driver and three other passengers were injured. The plaintiffs, who were those injured and the personal representatives of the deceased, commenced against the defendants an action claiming damages for negligence. At the trial the plaintiffs did not call oral evidence and relied on the doctrine of res ipsa loquitur, contending that the fact of the accident alone was sufficient evidence of negligence by the first defendant. The defendants called evidence which established that an untraced car being driven in the inner lane of the westbound carriageway had cut into the outer lane in front of the coach, and

to avoid hitting the car the first defendant had braked and swerved to the right whereupon the coach had skidded across colliding with the bus. The judge gave judgment for the plaintiffs on liability holding that the defendants had failed to discharge the burden of disproving negligence. On appeal the Court of Appeal of Hong Kong reversed that decision and found that the plaintiffs had failed to prove negligence. On appeal to the Judicial Committee of the Privy Council: Held, that it was misleading to talk of the burden of proof shifting to the defendant in a res ipsa loquitur situation because the burden of proving negligence rested throughout the case on the plaintiff; that in an appropriate case the plaintiff established a prima facie case by relying upon the fact of the accident and if the defendant adduced no evidence there was nothing to rebut the inference of negligence and the plaintiff would have proved his case, but if the defendant did adduce evidence that evidence had to be evaluated to see if it was still reasonable to draw the inference of negligence from the mere fact of the accident; that the judge had mislead himself by assuming that there was a legal burden on the defendants to disprove negligence and he had also failed to give effect to those authorities which established that a defendant placed in a position of peril and emergency had not to be judged by too critical a standard when he acted on the spur of the moment to avoid an accident (p 302D); that in attempting to extricate himself, his coach and his passengers from a situation which appeared to him as one of extreme danger, the first defendant had acted with the alertness, skill and judgment which could reasonably have been expected in the circumstances, and that, accordingly, the appeal should be dismissed.