4.6 Proving negligence
4.6.3 The criteria for claiming res ipsa loquitur
The criteria arising from the judgment in the last case are quite clear and give a systematic means of applying the maxim and determining the circumstances in which it can be used.
There are then three specific criteria for successfully pleading res ipsa loquitur:
J At all material times the thing causing the harm must have been in the control of the defendant.
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J The incident must be of a type that could only have been caused by negligence.
J The cause of the incident is not known and there is no other obvious explanation for the incident.
The incident was in the control of the defendant
The basis of the plea is that there is no explanation available for proof of negligence but that the defendant caused the damage. Inevitably the defendant must be in control of the situation that has led to the damage, or there can be no liability.
What does actually fall within the defendant’s control is a question of fact in each case for the court to decide.
CASE EXAMPLE
Gee v Metropolitan Railway Co [1873] LR 8 QB 161
A passenger leaned on a train door shortly after it left the station. The door opened and the passenger fell out and was injured. The defendants were responsible for ensuring that all doors were properly closed before the train left the station. There was no reasonable explana- tion for why the door opened. However, the defendants were in control at the material time and the court thus held that they were liable.
Actual control is a question of fact. As a result it is possible to show from the circum- stances that it would be unfair to suggest that the defendant had actual control. In the absence of control then the defendant cannot be said to be the cause without proof.
CASE EXAMPLE
Easson v London and North Eastern Railway [1944] KB 421
Here a boy passenger fell through the door of a train when it was a long way from its last stop.
There may well have been other reasons why the door was open or not secure. For instance it was possible that another passenger had opened the door. The court certainly felt that it was impossible to say that the doors were under the control of the railway company throughout the entire journey and as a result res ipsa could not apply.
It seems only fair that if the defendant is in control of the circumstances in which the damage occurred he should be called on to give some explanation of the incident.
The incident is of a type usually associated with negligence
It is also obviously of critical importance to show also that the incident causing the damage is of a type that would not normally occur if proper care were taken. If this is so then the incident can be seen as one of a type that would commonly be caused only by negligence. The absence of a reasonable explanation by the defendant means that it is reasonable to assume that the event occurred because of lack of care.
CASE EXAMPLE
Scott v London and St Katherine’s Dock Co [1865] 3 H & C 596
Here the facts really do speak for themselves. Large bags of sugar are inanimate objects and it is unlikely that they could fall from a hoist without a lack of care being taken. They may well have been stacked carelessly and too close to the opening. It could be that a careless employee brushed against them causing them to fall. What is certain is that, if they had been stacked safely, they would not have fallen and injured the claimant.
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4.6 PROVING NEGLIGENCE
Res ipsa is often pleaded in medical negligence cases because the claimant is entitled to an explanation of how the damage occurred if not by negligence.
CASE EXAMPLE
Glass v Cambridge Health Authority [1995] 6 Med LR 91
A man who was shown to have a normal healthy heart nevertheless went into cardiac arrest while under a general anaesthetic. The maxim was held to have been appropriately pleaded in the case although the Health Authority was able to introduce evidence to show why it had not been negligent.
In medical negligence cases the plea is common because of the difficulties of showing the precise negligence and the plea may often be used because the precise party respons- ible for the damage is unknown.
CASE EXAMPLE
Mahon v Osborne [1939] 2 KB 14
Here after an operation a patient later died. It was discovered that a swab was inside him. It was clear that the swab must have been left in the patient during an operation and that it could not have been there but for negligence, although the precise member of the medical staff who was actually responsible could not be identified. Scott LJ, however, felt that some positive evidence of neglect of duty in the operation was needed in such cases.
The maxim in such cases may be used when the claim is that a particular body is vicari- ously liable for the acts of the tortfeasor.
CASE EXAMPLE
Ward v Tesco Stores Ltd [1976] 1 WLR 810
A customer slipped on yoghurt that had been spilt on to the supermarket’s floor. Tesco claimed that they had a procedure in place whereby the floors were cleaned regularly throughout the day and staff were instructed to stay with such spillages when they were found until they were cleaned. Nevertheless the customer was also able to show evidence of other spillages that were not immediately cleaned up. The court accepted that such occurrences could only result from negligence.
There is no other explanation for the incident causing damage
The third and final criterion for the plea to have effect is that it is impossible for the claimant to introduce evidence to give any explanation of the incident. If the circum- stances of the incident are capable of explanation by the claimant then the usual burden applies and the claimant should show how the facts prove negligence.
A plea of res ipsa loquitur can only apply because there are no other means available to explain the true cause of the incident. It is thus fairer in the circumstances to ask the defendant to introduce some evidence to rebut the presumption that negligence has occurred.
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CASE EXAMPLE
Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392
Without apparent reason a bus mounted a pavement and this resulted in injury to the claim- ant. In fact it was discovered that a tyre had burst because of a defect in the wall of the tyre that could not have been discovered earlier. Res ipsa was shown to be inappropriate, however, when it was discovered that the bus company gave no instructions to drivers to report heavy blows suffered by the tyres. As a result the court held that it was possible for negligence to be shown and the defendants were liable.
Comment
We have already seen that there is debate among the judiciary as to the proper role of the maxim in relation to medical negligence cases.
It has been argued at different points that the maxim should always apply because the three criteria will generally be satisfied and because the claimant may otherwise face a very difficult time collecting the appropriate evidence.
The courts, nevertheless, have been reluctant to accept such widespread application of the maxim. The Pearson Report in 1978 also rejected general application because of the fear of an escalating number of claims resulting and the consequent rise in insurance premiums for medical staff.