1. Burden and Standard of Proof

2. Burden and Standard of Proof
Burden - On C to prove his claim
Standard – balance of probabilities – “more likely than not” that D has been negligent
2 exceptions to the burden of proof:
D convicted of a criminal offence
Res Ipsa Loquitur

3. Exceptions to Burden of Proof – D convicted of criminal offence
Civil Evidence Act If D has been convicted of a crime based on the same event – C’s claim in negligence will be satisfied as a court has already been satisfied that D caused the wrongful act beyond reasonable doubt (higher standard)
E.g. claim for personal injuries arising from a car crash where the driver has been convicted of dangerous driving will not require proof of the driver’s negligence – driver would have to prove that he was not negligent – probably impossible given his conviction. Only issue for the court to determine would be the amount of damages to award.

4. Exceptions to Burden of Proof – Res Ipsa Loquitur
Res Ipsa Loquitur means “the thing speaks for itself”
3-Part Test:
The accident that caused the damage complained of would not have happened unless someone had been negligent
The thing that caused the harm was wholly under the control of D
There is no other explanation of the injury caused to C

5. Example of Res Ipsa Loquitur - 1
Scott v London and St Katherine’s Docks – C walking along the dock when he was hit on the head by a sack of sugar that had fallen from an overhead crane. C did not have to prove that the dock company was negligent – burden of proof shifted to D who had to opportunity to show he was not negligent - as the required elements for RIL were present:
Sacks of sugar don’t fall from cranes unless some has been negligent
The sack of sugar fell from a crane controlled by the dock company
There is no other explanation of the injury caused to C

6. More Examples of Res Ipsa Loquitur
Bergin v David Wickes Television Ltd – modern explanation of RIL – a group of situations in which an unexplained accident is, as a matter of common sense, the basis for an inference of negligence.
Mahon v Osborne – C went into hospital for an abdominal operation. After the operation he remained in pain and died when he should have made a recovery. A swab had been left inside his body – Held that RIL applies as a swab is not left inside a body unless someone has been negligent, the swab is wholly under the control of the hospital, and there is no particular explanation for the incident.
Can be examples where D can show that he was not negligent and so C’s claim doesn’t succeed despite using RIL:
Pearson v North Western Gas Board – gas main outside C’s home exploded, killing her husband and destroying the house. The gas board was able to show it had not been negligent as it had taken all reasonable precautions to deal with gas leaks. There had been particularly cold weather which had caused the ground to freeze and then buckle during the thaw causing the pipe to fracture. Having regular emergency call-out teams was a sufficient standard of care, so the board had not been negligent.