Introduction

The claimant must prove, on the balance of probabilities, that the defendant has breached the duty of care owed and that the breach has caused the injury or damage. Therefore, as a general rule a defendant does not have to show that they were not negligent.

Res ipsa loquitur

The res ipsa loquitur (the thing speaks for itself) principle has been developed for situations where negligence can only be inferred and the exact cause cannot be proved by the claimant.

• Control

  Firstly, the events leading up to the accident must have been solely under the defendant's control.

  Gee v Metropolitan Railway (1873) LR 8 QB 161

  Facts:

  The plaintiff was injured when he fell out of a door on the defendant's underground train, immediately after leaving the station. The doors were controlled by the driver.

  Issue:

  Is the defendant liable, despite the plaintiff only being unable to infer negligence?

  Held:

  The defendant was liable as he was in control of closing the door and therefore, the facts spoke for themselves and the injury was likely caused by negligence.

  Easson v London & North Eastern Railway [1944] 2 KB 421

  Facts:

  The plaintiff was injured when he fell out of a door on the defendant's train, several miles from the last station. The doors were operated manually by the passengers.

  Issue:

  Is the defendant liable, despite the plaintiff only being unable to infer negligence?

  Held:

  The defendant was not liable as it could not be established that he was sufficiently in control of closing the door. The distance travelled meant that another passenger may have interfered with door since leaving the station. The case was distinguished from Gee v Metropolitan Railway (1873) on the basis of the lack of control on the defendant's part.

• Carelessness

  The second factor, is that the accident must not have normally happened without negligence. This was clearly illustrated in Scott v London & St Katherine's Docks (1865), where bags of sugar would not normally have fallen out of a building.

• Unknown cause

  Thirdly, the cause of the accident must be unknown. By definition, if the cause is known then the facts no longer speak for themselves.

  Barkway v South Wales Transport [1950] 1 All ER 392

  Facts:

  The plaintiff was injured by the defendant's bus veering across the road. The loss of control was caused by a flat tyre.

  Issue:

  Could the plaintiff rely on res ipsa loquitur?

  Held:

  The plaintiff could not rely on res ipsa loquitur as the exact cause of the accident was known ( a flat tyre). Therefore, the plaintiff had to prove that the flat tyre was caused by the defendant's negligence. The plaintiff succeeded as he could prove the defendant was negligent in not detecting the flat tyre.

Therefore, res ispa loquitur makes a prima facie inference of negligence against the defendant, to which he must provide a reasonable explanation of how the accident could have occurred without negligence. The defendant may either show how the accident occurred (without negligence on his part) or demonstrate that he used reasonable care at all times.

The Civil Evidence Act 1968

If a defendant has been convicted of a relevant offence, a claimant may also be assisted by statutory provision.

Therefore, if a defendant has been convicted of a relevant offence it will be taken that he committed that offence unless he can prove the contrary. This can be used as evidence of his carelessness by the claimant.