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Published online by Cambridge University Press: 16 January 2009
In this preliminary article it is not intended to deal with the maxim res ipsa loquitur in its manifold ramifications but to consider its origin and development, the requirements for its application, some reasons for its complexities, and its broad effect in English law.
1 Ballard v. North British Ry., 1923 S.C.(H.L.) 43, at p. 56.Google Scholar
2 Carruthers v. MacGregor, 1927 S.C. 816, per Lord Murray at p. 823.Google Scholar
3 (1863) 2 H. & C. 722; 33 L.J.Ex. 13. Pollock C.B., Bramwell, Channell and Pigott BB.
4 At p. 725.
5 5 Ex. 788, at p. 789. Carpue v. L. & B. Ry. (1844) 5 Q.B. 747 (train running off the line). The case is explained in Hanson v. L. & Y. Ry. (1872) 20 W.E. 297, per Brett J. at p. 298.
6 (1865) 3 H. & C. 596. No one but the plaintiff was at the place, he had no warning, there was no fence or barrier, no one called out; he heard the rattling of a chain. Martin B., at the trial, stated that even assuming the bags of sugar were being dealt with by the servants of the defendants in the course of their employment, there was not sufficient evidence of negligence on their part to allow the case to go to the jury, at p. 597.
7 In the Court of Exchequer, Channell and Pigott BB. (Martin B. dissentiente, Pollock C.B. dubitante), ruled there was evidence of negligence (1864) 13 W.R. 99. In the Court of Exchequer Chamber, Crompton, Byles, Blackburn and Keating JJ., dissentientibus Erle C.J. and Mellor J.
8 Per Erie C.J. at p. 601. (Italics supplied.)
9 (1870) L.R. 5 Q.B. 411, at p. 413. Affirmed in the Exchequer Chamber (1871) L.R. 6 Q.B. 759.
10 (1870) L.B. 5 Q.B. at pp. 415–6. Briggs v. Oliver (1866) 35 L.J.Ex. 163, ‘I think there was [evidence] and that this is one of those cases in which… res ipsa loquitur. Packing cases carefully placed in a proper position do not naturally tumble down of their own accord;… and as in Scott v. London Dock Company… the facts show a prima facie case’, per Bramwell B. at p. 164.
11 Barkway v. South Wales Transport Co., Ltd. [1950] 1 All E.R. 392, per Lord Normand at p. 399.
12 Craig v. Glasgow Corporation, 1919 S.C,(H.L.) 1, per Fiulay, Lord at p. 10.Google Scholar ‘Circumstantial evidence may be just as valuable as direct evidence. It may vary very much in degree…. The facts in the present case speak, in a whisper it is true, but still audibly’. Grant v. Australian Knitting Mills [1936] A.C. 85, per Wright, Lord at pp. 96–7.Google Scholar
13 Bollard v. North British Ry., 1923 S.C.(H.L.) 43, at p. 53.Google Scholar
14 Ibid, at p. 56. The American view is still stronger. It is ‘a source of so much confusion in the courts that the use of the phrase has become a definite obstacle to any clear thought, and might better be discarded entirely’. Dean Prosser, Handbook of the Law of Torts (1941), p. 293Google Scholar, and quoting Bond, C.J. in Potomac Edison Co. v. Johnson (1930)Google Scholar. ‘It adds nothing to the law, has no meaning which is not more clearly expressed for us in English, and brings confusion into our legal discussions. It does not represent a doctrine, it is not a legal maxim, and is not a rule of law.’ 62 S.A.L.J. (1945), 408–13. L. M. N. Hodson.
15 Gahan, , 1937 The Bell Yard, No. XX, at p. 28.Google Scholar
16 Easson v. L. N. E. Ry. [1944] K.B. 421. per dn Pareq L.J. at p. 425.Google Scholar
17 Prosser, Dean, 37 California Law Review (1949), at pp. 187–8.Google Scholar
18 Britannia Hygienic Laundry Co. v. Thornycroft & Co. (1926) 95 L.J.K.B. 237. ‘Entirel y under the control…’, per Scrutton, L.J. at p. 241.Google Scholar ‘Under the sole control…’.
19 Easson v. L. N. E. Ry. [1944] K.B. 421, per Lord, Goddard L.J. at p. 422.Google Scholar Mahon v. Osborne [1939] 2 K.B., per Scott, L.J.. at p. 21.Google Scholar Wing v. L. G. O. Co. [1909] 2 K.B. 652. ‘When the direct cause of the accident and so much of the surrounding circumstances as were essential to its occurrence were within the sole control or management of the defendants…’, per Fletcher, Moulton L.J. at p. 663.Google Scholar
20 (1926) 42 T.L.R. 408. But see du Parcq L.J. in Hewitt v. Bonvin [1940] 1 K.B. 188, 195–6. Barnard v. Sully (1931) 47 T.L.R. 557. Gayler and Pope v. Davies [1924] 2 K.B. 75 (unattended horse bolting in street).
21 Cf. Fletcher, Moulton L.J. in Wing v. L. G. O. Co. [1909] 2 K.B. 652, at pp. 663–4.Google Scholar ‘Every vehicle has to adapt its own behaviour to the behaviour of other persons using the road, and over their actions, those in charge of the vehicle have no control.’ It surely might apply to a vehicle running into another from behind.
22 Ellor and Wife v. Selfridge & Co., Ltd. (1930) 46 T.L.R. 236 (some evidence of negligence if pedestrian on pavement is suddenly hit in the back by a car, and defendant calls no witness).Google Scholar Laurie v. Raglan [1942] 1 K.B. 152.Google Scholar Barkway v. South Wales Transport Co., Ltd. [1950] 1 All E.R. 392.Google Scholar
23 Mahon v. Osborne [1939] 2 K.B. 14.Google Scholar
24 [1944] K.B. 421. Brookes v. L. P. T. B. [1947] 1 All E.R. 506 (liable where train left station with carriage door open)Google Scholar. In Woods v. Duncan [1946] A.C. 401, at pp. 434–5, Lord Porter differed from the Master of the Rolls, and held that Lieutenant Woods was not in sole control.Google Scholar
25 (1873) L.R, 8 Q.B. 161.
26 [1936] A.C. 85. A contrary view was taken by Lewis, J. in Daniels v. White [1938] 4 All E.R. 258 (carbolic acid in ginger beer). 14 C.B.R. 1936, pp. 287–94Google Scholar, Underhay, F. C., 24 A.L.R. 1950, pp. 194–8Google Scholar, R. W. Baker; 55 L.Q.R. (1939) pp. 6–19, 352–3.
27 (1905) 21 T.L.R. 633.
28 Langham v. Governors of Wellingborough School and Fryer (1932) 101 L.J. K.B. 513, per Greer L.J. at p. 518.Google Scholar
29 Ibid., per Scrutton L.J. at p. 520.
30 Ballard v. North British Ry., 1923 S.C.(H.L.) 43, per Dunedin, Lord at p, 54.Google Scholar The Crouch (1950) 84 Ll.L.Rep. 447 is a useful case showing when the maxim does not apply.
31 Mahon v. Osborne [1939] 2 K.B. 14. at p. 23.Google Scholar
32 Ibid. pp. 45–7.
33 Torts, 14th ed., 358, citing Crafter v. Metropolitan Ry. (1866) L.R. 1 C.P. 300 (italics supplied).
34 Sochacki v. Sas [1947] 1 All E.R. 344, at p. 345.Google Scholar
35 37 California Law Review (1949), Prosser, Dean, p. 193.Google Scholar
36 Britannia Hygienic Laundry Co. v. Thornycroft & Co. (1926) 95 L.J.K.B. 237. ‘… You may presume negligence from the mere fact that it happens, because such a thing would not happen without negligence’. Per Scrutton, L.J. at p. 241.Google Scholar
37 Easson v. L. N. E. Ry. [1944] K.B. 421, at p. 425.Google Scholar
38 Langham v. Governors of Wellingborough School and Fryer (1932) 101 L.J. K.B. 513, at p. 518.Google Scholar Hodson, L. M. N. in 62 S.A.L.J., 1945, pp. 408–13Google Scholar, writes convincingly that res ipsa loquitur should cease to be treated as if it were a separate little branch of the law of evidence.
39 Barkway v. South Wales Transport Co., Ltd. [1950] 1 All E.R. 392, per Normand, Lord at p. 399.Google Scholar Britannia Hygienic Laundry Co. v. Thornycroft & Co. (1926) 95 L.J. K.B. 237, per Bankes, L.J. at p. 239.Google Scholar It applies only where ‘the plaintiff, in complaining, has no knowledge or means of knowledge, as to what the actual cause of the accident was, all that he is in a position to say is that it occurred in reference to a matter of which the person of whom the plaintiff was complaining had full control and full knowledge…’.
40 Scott v. London it St. Katherine Dock Co. (1865) 3 H. & C. 596, at p. 600, per Blackburn J. ‘There is an old rule of pleading, that less particularity is required when the facts lie more in the knowledge of the opposite party than of the party pleading. Applying that, here, is not the fact of the accident sufficient evidence to call upon the defendants to prove there was no negligence?’
41 (1863) 33 L.J.Ex. 12, at pp. 15–6.
42 Halsbury, Laws of England, 2nd ed., Vol. 13, p. 546: ‘In considering the amount of evidence necessary to shift the burden of proof, the court has regard to the opportunities of knowledge with respect to the fact to be proved which may be possessed by the parties respectively’.
43 Phipson, Manual of Evidence, 7th ed., 23.
44 Bollard v. North British Ry., 1923 S.C.(H.L.) 43, per Lord Dunedin at p. 54.Google Scholar
45 Barkway v. South Wales Transport Co., Ltd. [1950] 1 All E.R. 392, per Lord Porter at 395. ‘If the cause of the accident is proved the maxim is of little moment’, per Normand, Lord at p. 399.Google Scholar
46 Britannia Hygienic Laundry Co. v. Thornycroft & Co. (1926) 95 L.J.K.B. 237.Google Scholar It was common ground that the cause of the actual occurrence, the breaking of the stub axle, was ‘fatigue’ of the metal, which could only be ascertained by breaking up the metal, and not by any external examination. ‘You therefore start this case with this, that this stub axle broke from a cause which could not be discovered from inspection by the most careful examination. Now once you get at that, it seems to me that the whole idea of res ipsa loquitur is destroyed.’ Per Scrutton L.J. at p. 241.
47 Halsbury, Laws of England, 2nd ed., Vol. 23, p. 672, n. (g), citing Paterson v. Wallace & Co. (1854) 1 Macq. 748 H.L. (miner killed by fall of stone). Charlesworth Law of Negligence, 2nd ed., p. 536. ‘When personal negligence of master is to be proved, it does not apply because “res” only speaks of negligence on the part of somebody, and not the personal negligence of the master’—citing Cole v. De Trafford [1918] 2 K.B. 528.
48 [1918] 2 K.B. 528.
49 Law Keform (Personal Injuries) Act, 1948.
50 Bowater v. Rowley Regis Corporation [1944] K.B. 476.Google Scholar
51 Woods v. Duncan [1946] A.C. 401, per Viscount Simon at p. 419.Google Scholar The Heranger [1939] A.C. 94, per Lord Wright at p. 104.Google Scholar
52 See Phipson on Evidence, 8th ed., pp. 27–35Google Scholar (burden of proof), pp. 4, 661 (presumptions). It is generally agreed that the existing distinctions between the divisions of burdens and presumptions are difficult to maintain. See (1945) 61 L.Q.R. pp. 379–83, for convincing proof of this by Lord Justice Denning, and suggestions for a new classification. Macintosh and Scoble, Negligence on Delict, 3rd ed., pp. 361–70, give a very clear account.
53 Britannia Hygienic Laundry Co. v. Thornycroft & Co. (1926) 96 L.J.K.B. 237, per Scrutton, L.J. at p. 241.Google Scholar
54 (1930) 143 L.T. 217, at pp. 219–20.
55 Pickup v. Thames Insurance Co. (1878) 3 Q.B.D. 594, per Thesiger L.J. at pp. 605–6.
56 14 C.B.E. (1936) 291, Underhay.
58 24 Australian Law Journal (1950) 194–8Google Scholar; 67 South African Law Journal (1950) 245–56.Google Scholar ‘C. J. J’; see also 14 C.B.R. (1936) 480–3 G. W. Paton; ibid., 287–94; Underhay, F. C.; 37 California Law Review (1949) 217–32Google Scholar, Prosser, William L.: 20 C.B.R, (1942) 705–6Google Scholar; 63 H.L.R. (1949–50) 643–8, W. A. Seavey.
59 (1906) 22 T.L.R. 222, at p. 223. Winnipeg Electric Co. v. Geel [1932] A.C. 690, dicta of Wright, Lord at p. 699Google Scholar, and quoting The Merchant Prince [1892] P. 179, at pp. 187, 188–9, where the defence pleaded was inevitable accident.
60 1923 S.C.(H.L.) 43, at p. 54.
61 [1933] P. 154, at pp. 166–70; Brook's Wharf & Bull Wharf, Ltd. v. Goodman Bros. [1937] 1 K.B. 534, per Wright, Lord M.R. at p. 539.Google Scholar
62 [1937] P. 130, at pp. 147–8.
63 [1937] P. 82, at pp. 90–2.
64 (1949) 82 Ll.L.Rep. 884.
65 [1933] P. 154, at pp. 166–170.
66 Barkway v. South Wales Transport Co., Ltd. [1948] 2 All E.R. 460, at p. 461.Google Scholar
67 [1946] A.C. 401, at pp. 419, 425, 439. In Ballard v. North British Ry., 1923 S.C.(H.L.) 43Google Scholar, per Lords Haldane, Finlay and Shaw—an onus lies in the first instance on the defendant to show that the accident was not due to his fault or negligence.
68 (1949) Go T.L.R. 580, C.A.; 66 L.Q.R. (1950) pp. 8–9.
69 [1948] 2 All E.R. 460, at pp. 468–9.
70 Ibid. p. 471.
71 [1950] 1 All E.R. 392, at pp. 394–5.
72 Ibid. 399.
73 Ibid. 400.
74 Ibid. 403. Cf. Stone v. Bolton [1950] 1 K.B. 201, at pp. 211–2. Jenkins L.J., dealing with onus of proof, eaid that the fact of the plaintiff being struck by a cricket ball hit out of the ground was sufficient to place on the defendants the burden at least of showing that the event was one which they (1) could not reasonably have foreseen, or (2) had taken all reasonably practical steps to prevent.
75 Gibb, , Collisions on Land, 5th ed., pp. 22–3.Google Scholar
76 Ballard v. North British Ry., 1923 S.C.(H.L.) 43, at p. 48.Google Scholar
77 (1949) 82 Ll.L.Rep. 884.
78 1941 S.C. 363.
79 Lord Carmont at p. 392.
80 At p. 393.
81 Lord President (Normand), p. 377.
82 At p. 378. Elliot v. Young's Bus Services, 1946 S.L.T. 145Google Scholar, is another Scots case in which the ‘overdriven metaphor’ and ‘its consequences, whatever they may be’ as to onus of proof are considered, particularly the judgment of Lord Mackay. The facts were almost identical with the Barkway Case, held res ipsa loquitur inapplicable, and the motor company liable.
83 (1873) L.R. 8 Q.B. 161.
84 Easson v. L. & N. E. Ry. [1944] K.B. 421, at p. 426.Google Scholar ‘None of the reported cases really lay down any principles of law. They only show that in the circumstances of the case there was evidence on which the jury could find a verdict for the plaintiff’, per Goddard L.J. at p. 423.
85 Ballard v. North British Ry., 1923 S.C.(H.L.) 43, at p. 53.Google Scholar
86 Jones v. G. W. Ry. (1931) 144 L.T. 194, per Lord Macmillan at p. 202.Google Scholar
87 [1932] A.C. 562, at p. 622.
88 [1936] A.C. 85. Manufacturers called evidence to show their process was designed to guard against leaving irritant chemicals in the finished article. Plaintiff conceded it was properly designed but Lord Wright said that if excess sulphides were left in the garment ‘that could only be because someone was at fault’, p. 101.
89 Underhay, 14 C.B.R, (1936), p. 294; 55 L.Q.R. (1939) pp. 6–9, 352–3.
90 Wright. 26 C.B.R. (1948), p. 69.
91 Woods v. Duncan [1946] A.C. 401, per Lord Porter at p. 435.Google Scholar