Liability in Negligence for Injury to People and Damage to Property: Tort of Negligence: Res Ipsa Loquitur

Res Ipsa Loquitur

• Definition - 'the thing speaks for itself'

Scott v The London and St. Katherine Docks Company (1865)

• 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
• 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

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
• What does prima facie mean? 'At first sight'

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
• If the claimant suffers 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'

Using Res Ipsa Loquitur

A claimant can use res ipsa loquitur if:

1. The thing that caused the damage was under the control of the defendant
2. The cause of the accident is unknown
3. The accident is such that would not normally happen without negligence

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

The Cause of the Accident Must be Unknown

• If the cause of the accident is know 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 claimants had to prove their case. It was held that the defendants were liable for negligence for failing to check the tyre adequately

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

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
  

Conclusion

• Res Ipsa is a rule that puts the onus (but not the legal responsibility) of proving a claim, on the defendant. The claimant still has to prove their case on the balance of probabilities, but in a Res Ipsa scenario, the defendant has the unofficial burden of undermining the claimant's case by putting forward evidence that they did not break their duty of care
• Easson suggested that if there is any evidence at all that another party could have been at fault, or if the used principles of an intervening act might be operating, then Res Ipsa will not apply

Negligence: Standard of Care

• In order to determine whether someone has breached a duty of care, the standard of care must be considered
• The standard of care is that of the reasonable person
• A person is not required to show a standard of care greater than that of the reasonable person
• A person will be liable if they have shown a standard of care less than that of the reasonable person

Blyth v The Company of Proprietors of The Birmingham Waterworks [1856]: The Standard of Care

• The standard of care was defined in this case
• Facts: There had been cold frosts, causing a water main to freeze and expand, pushing a fire plug out. Water had escaped and damaged a property. The owner sued for negligence on the basis that the defendant had not kept their water-pipe and fireplug in proper order
• The High Court held that there had been no negligence. Alderson, B stated:
• "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done...The result was an accident, for which the defendants cannot be held liable"
• A common mistake is to think that the tort of negligence only began in 1932 with Donoghue v Stevenson
• Negligence was well-known to English law before 1932. However, it was much more limited in scope and 'duty of care' had not yet been extended to the 'neighbour' principle stated by Lord Atkin

The Reasonable Man Test

• The 'reasonable man' test is sometimes referred to as the 'reasonable person' test
• It is regarded as an objective test
• The judge or jury will determine whether a person has acted negligently by comparing his or her act or omission with the behaviour of the reasonable man

Negligence: The Duty of Care

 Donoghue v Stevenson [1932]

• The tort of negligence was established in the case of Donoghue v Stevenson
• Mrs Donoghue drank a ginger beer, bought for her by her friend.
• It contained a decomposing snail
• She suffered shock and severe gastroenteritis as a result

House of Lords Decision

• The House of Lords decided that by a majority of 3 to 2 that a legal duty of care could be owed by a manufacturer to a consumer even though no contractual duty existed
• The three judges who supported this establishment of a legal duty of care outside of a contractual relationship were Lord Atkin, Lord Macmillan and Lord Thankerton
• All three judges concentrated on the duty owed by a manufacturer to a consumer in their judgments
• These judgments suggested that the legal duty of care could exist beyond that owed by a manufacturer to a consumer
• Lord Atkin stated that there was a 'neighbour principle', which imposes a universal duty to take care - "You must take reasonable care to avoid acts or omissions which you can reasonably forsee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question"
• Lord Macmillan stated that 'the categories of negligence are never closed'

Cases

• Hedley Byrne & Co Ltd  Heller & Partners Ltd [1963]
• Claimants wanted reassurance that they could provide credit to another company . The financial stability was reassured by the other company's bank (the defendant)
• Soon after giving credit, the other company defaulted and the claimants were liable for its debts
• Since there was no consideration paid by Hedley Byrne, there wasn't really a contract in existence - all there was was reliance by Heller, who had lost out, which is why they sued in negligence
• Hedley Byrne failed in their claim, but the court laid down four principles which they said established a duty of care:
• Financial relationship of trust exists (i.e money is paid to one side for information that they trust will be accurate)
• The party preparing the info assumes the risk - takes responsibility for any adverse consequences if the information that they are preparing is wrong
• There has been reliance on that info by the claimant
• This reliance was reasonable in the circumstances
• Home Office v Dorset Yacht Co Ltd [1970]
• Young offenders were doing supervised work on Brown Sea Island under the Borstal Regime
• One night the officers retired for the evening, leaving the boys unsupervised
• Seven of them escaped and stole a boat which collided with a yacht owned by the claimant
• The Home Office owed a duty of care for their omission as they were in a position of control over the 3rd party who caused the damage and it was foreseeable that harm would result from their inaction

Limits on Duty of Care

• The Court of Appeal and the House of Lords have said in the past that a duty of care should be limited for the following reasons
• Floodgates argument
• Too many claims clogging up the courts
• Means that cases could be weighted too much in favour of claimants if all they had to do was just say that a defendant owed them a duty of care
• Courts' way of trying to achieve Natural Justice
• Impact on the insurance industry
• Could potentially have to pay out for more claims
• They would also have to offer insurance on a much wider range of relationships that the court has decided carry with them a duty of care
• Impact on social activity
• More claims arising from an activity would mean a society that is scared of being sued - making everyone litigation shy and risk averse
• DofE might possibly not take place because of the litigation risk
• Public policy
• Where judges decide to interpret a term or a law in a certain way, so as to protect public morality and safety

More Cases

• Anns v Merton London Borough (1978)
• Anns' house was breaking under poor foundations
• Claimed off council, who had a lease on the building
• Did a local council owe a duty to inspect a building for its occupier during building?
• Yes, recovery was allowed as there was material damage, despite there being no contractual relationship
• In Anns, the HoL paved the way for the court to find that a duty of care exists in a way that meant they weren't constrained by precedent
• All the court needs to do is assess whether it would be reasonable on the facts of the case to find that a relationship of sufficient proximity exists - without saying what that would be based on
• Once you've decided that one exists, you then need to look into whether there are any reasons why it shouldn't or whether it should be restricted in some way
• It is likely that a duty was found in this relationship because the issue was one of health and safety, and also there was an actual or quasi contractual relationship between the Council and the tenants in the flat - the Council would have had a contractual duty to maintain the flats, which they failed to discharge
• Junior Books v Veitchi (1983)
• Defendants laid a floor in a factory for the plaintiffs
• Plaintiffs claimed that due to negligence of defendants, the floor was faulty, so defendants were liable
• Plaintiff brought action claiming for the costs of relaying the floor, loss of profits, and the cost to the factory for getting the floor replaced
• Held- the parties were sufficiently close and therefore there was a scope of duty between them.
• On this basis, the plaintiff could recover the cost of repairing the floor