1. Liability in negligence for injury to people and damage to property
Tort of Negligence
Res Ipsa Loquitur
and
Civil Evidence Act 1961 s11

2. Learning Objectives By the end of the session you should be able to:
Define res ipsa loquitur
Explain res ipsa loquitur
Explain the effect of res ipsa loquitur
Explain the three key elements of res ipsa loquitur
Explain the effect of the Civil Evidence Act 1968 s 11.

3. Definition: res ipsa loquitur
This is Latin for ‘the thing speaks for itself’.

4. Scott v The London and St. Katherine Docks Company (1865) 159 ER 665
Facts: The claimant was near the door of the defendant’s warehouse and under a crane when some sugar bags fell on him. The only witness was the claimant. The judge directed the jury to find for the defendant on the grounds of lack of evidence. The claimant appealed and a new trial was ordered. The defendant appealed against the ordering of the new trial. Held: The Court of Exchequer Chamber dismissed the appeal and a new trial was ordered.

5. Scott v The London and St. Katherine Docks Company (1865) 159 ER 665
Erle CJ stated: “There must be reasonable evidence of negligence, but, where the thing is shown to be under the management of the defendant, or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management of the machinery use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.” The above terms are regarded as the classic statement of res ipsa loquitur.

6. The Effect of Res Ipsa Loquitur
The effect of res ipsa loquitur is to create a prima facie presumption of negligence against the defendant.
The defendant must then explain how the accident could have happened without negligence.
Question: What does prima facie mean?

7. The Effect of Res Ipsa Loquitur
The effect of res ipsa loquitur is to create a prima facie presumption of negligence against the defendant.
The defendant must then explain how the accident could have happened without negligence.
Question: What does prima facie mean?
Answer: ‘At first sight’.

8. Res Ipsa Loquitur Does Not Change the Burden of Proof
Sometimes it is incorrectly stated that the successful use of res ipsa loquitur changes the burden of proof from the claimant to the defendant. The burden of proof does not change. The claimant still has to prove the case on the balance of probabilities.

9. Res Ipsa Loquitur Does Not Change the Burden of Proof
If the claimant suffers injuries due to an accident which ought not to have happened if the defendant had taken due care, the claimant invites the court to draw the inference that on the balance of probabilities the defendant must have failed to exercise due care even though it is not known how the accident happened. The misunderstanding occurs because res ipsa loquitur changes the ‘evidential burden of proof’ which is not the same as the ‘burden of proof’.

10. The Effect of Res Ipsa Loquitur
“In an action for negligence the plaintiff…has the burden of proving, that the accident was caused by negligence on the part of the defendants… The formal burden of proof does not shift. But if in the course of the trial there is proved a set of facts which raises a prima facie inference that the accident was caused by negligence on the part of the defendants, the issue will be decided in the plaintiff's favour unless the defendants by their evidence provide some answer which is adequate to displace the prima facie inference.” Henderson v Henry E. Jenkins & Sons (1970) Per Lord Pearson

11. Using Res Ipsa Loquitur
A claimant can use res ipsa loquitur if:
The thing that caused the damage was under the control of the defendant.
The cause of the accident is unknown.
The accident is such that would not normally happen without negligence.

12. Under the Control of the Defendant
To use res ipsa loquitur it must be shown that the thing causing damage was under the control of the defendant. In Easson v London and North Eastern Railway Co [1944] a child, aged 4 years, fell through a door in the corridor of a train which was in motion and was injured when he fell onto the railway track. The Court of Appeal held that the open door was not under the continuous control of the defendant and could have been opened by another passenger. Res ipsa loquitur could not be used in this case.

13. The Cause of the Accident Must be Unknown
If the cause of the accident is known then res ipsa loquitur cannot be used because the facts no longer ‘speak for themselves’. In Barkway v South Wales Transport Co Ltd [1950] the claimant's husband was killed when a tyre burst on a bus he was riding on and the bus crashed. There was evidence that the tyre had been damaged by receiving heavy blows on the outside. The House Of Lords stated that res ipsa loquitur could not be used because the facts were sufficiently known and these facts needed to be examined and therefore the claimant’s had to prove their case. It was held that the defendant’s were liable for negligence for failing to check the type adequately.

14. The Accident Would Not Normally Occur Without Negligence
To use res ipsa loquitur, it must be shown that the accident would not normally occur without negligence. In Cassidy v Ministry of Health [1951] the claimant entered hospital for treatment on two stiff fingers. Due to inadequate post-operative care he was left with four stiff fingers and a useless hand. The hospital did not attempt to explain how it could have happened without negligence. The hospital was held to be negligent.

15. Civil Evidence Act 1968 s.11
Claimants in negligence proceedings may be helped by the Civil Evidence Act 1968 s11 which can reverse the burden of proof in certain circumstances. If a person is convicted of a criminal offence against the claimant and the claimant then brings a civil action on the same facts that led to the conviction, then the criminal conviction is evidence of the defendant’s liability unless he or she can prove to the contrary.