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Res Ipsa Loquitur: The Australasian Experience
Published online by Cambridge University Press: 16 January 2009
Extract
Dr. T. Ellis Lewis in this Journal in 1951 discussed the operation of the maxim res ipsa loquitur in relation to the burden of proof and proposed certain conclusions. So thorough was his analysis of the question that one would hesitate to intrude upon the field but for the fact that the problems posed by his article and specifically left open by the House of Lords in Barkway's case have recently been considered by the New Zealand Supreme Court and Court of Appeal. A frank difference of opinion on the nature of res ipsa loquitur manifested itself in each court, and hence no excuse is offered for advancing this discussion, which can only be complementary to that of Dr. Ellis Lewis. Advantage will be taken of the opportunity to consider the Australian contributions to the subject. There is perhaps too little awareness in England that many of the academic battles of the law are regularly being fought out in the Australian and New Zealand courts.
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References
1 (1865) 3 H. & C. 596 at p. 601. Italics supplied.
2 [1946] A.C. 401 at pp. 419, 425, 439.
3 [1948] 2 All E.R. 460; [1950] 1 All E.R. 392.
4 [1948] 2 All E.R. 460. See also Bucknill, L.J. at p. 462Google Scholar, where he said the accident raised a “presumption of negligence.” He relied on Lord Simonds’ formula in Woods v. Duncan. Bucknill L.J. dissented on the ground that the defendants had not disproved negligence.
5 Ibid, at pp. 468–9.
6 [1950] 1 All E.R. 392 at p. 399.
7 Ibid, at pp. 394–5.
8 Ibid, at p. 403.
9 [1953] N.Z.L.R. 176.
10 At p. 184. Davis v. Bunn (1936) 56 C.L.R. 246 at p. 263Google Scholar; Schaef v. Tingey [1916] N.Z.L.R. 803 at p. 805Google Scholar; The Kite [1933] P. 154.Google Scholar
11 Citing The Kite [1933] P. 154.Google Scholar
12 (1949) 65 T.L.R. 580.
13 At pp. 188–9.
14 At pp. 189–90.
15 [1953] N.Z.L.R. 196.
16 [1953] N.Z.L.R. 292.
17 Ibid. at p. 294.
18 At p. 435. See also Atkinson, J. in Imperial Smelting Corpn. v. Constantine [1940] 1 K.B. 812 at p. 828Google Scholar, who said “that onus is discharged by proving facts from which the inference that the accident was not caused by negligence is as equally strong, that is, equally consistent with the facts, as the inference that it was caused by negligence.”
19 At p. 399.
20 Cf. the famous comment of Shaw, Lord in Ballard v. North British Ry. 1923 S.C.(H.L.) 43 at p. 56Google Scholar; Murray, C.J. in Virgint v. Potts [1929] S.A.S.R. 484 at p. 490.Google Scholar
21 On this point there is by no means unanimous opinion of writers on the subject. See Dr. Ellis Lewis in the article cited; Salmond on Torts (11th ed., 1953). p. 517; Dean Prosser, Handbook of the Law of Torts (1941), p. 293Google Scholar; Charles-worth on Negligence (2nd ed., 1947), p. 37; Phipson on Evidence (8th ed.), pp. 27 et seq.; Gahan, 1937 The Bell Yard, No. XV, at. p. 28; Underhay, in Canadian Bar Review 14 (1936), pp. 287–94Google Scholar; Paton in ibid., p. 481; Seavey, in Harvard Law Review 63 (1950), pp. 643–8CrossRefGoogle Scholar; cf. Hodson, in S.A.L.J. 62 (1945), pp. 408–13Google Scholar; Baker, in Australian Law Journal 24 (1950), pp. 194–8Google Scholar; see du Parcq, L.J. in Easson v. L. N. E. Ry. [1944] K.B. 421 at p. 425Google Scholar where res ipsa loquitur is characterised as a figure of speech; Winfield in Select Legal Essays (1952), p. 57Google Scholar; Winfield, The Law of Tort (4th ed., 1948), pp. 208, 411Google Scholar; Greer, L.J. in Langham v. Governors of Wellingborough School and Fryer (1932) 101 L.J.K.B. 513 at p. 518Google Scholar; Wright, Lord in Grant v. Australian Knitting Mills [1936] A.C. 85 at p. 101.Google Scholar
22 [1952] S.A.S.R. 225 at p. 229.
23 (1935) 54 C.L.R. 200.
24 Ibid, at p. 219.
25 Ibid, at p. 214. See also Atkin, Lord in McGowan v. Stott (1923) 99 L.J.K.B. 357 at p. 360.Google Scholar
26 (1936) 56 C.L.R. 246 at pp. 267–72. See also Murray, C.J. in Virgint v. Potts [1929] S.A.S.R. 484 at pp. 490–1Google Scholar; Isaacs, J. in Gorman v. Wills (1906) 4 C.L.R. at p. 778Google Scholar; Cleland, J. in Amber v. Martin [1938]Google Scholar S.A.S.R. 1; Napier, C.J. in McKenzie v. Hoskins [1939]Google Scholar S.A.S.R. 410, where the explanation tendered by the defendant was held insufficient; Richards, J. in Collins v. Gottsh [1941]Google Scholar S.A.S.R. 256; Richards, J.Lucas v. Miller (1942)Google Scholar 16 Workers Comp.Rep. 14. It is worth noting that the whole process of reasoning in Grant v. Australian Knitting Mills [1936] A.C. 85, seems to have been conditioned by Macmillan, Lord warning in Donoghue v. Stevenson [1932] A.C. 562 at p. 622Google Scholar, against applying the maxim to cases of manufacturers' liability because of the theory that mere proof of injury from a manufactured article shifts the legal onus of proof to defendant. See especially in the High Court where Evatt J. ((1933) 50 C.L.R. 387 at p. 442) applied Chaproniere v. Mason (1905) 21 T.L.R. 633, to support the inquiry on a basis of inference and not presumption. Lord Wright in Privy Council (at p. 101) said: “negligence is found as a matter of inference from the existence of the defects taken in connection with all the known circumstances.” See the discussion by Underhay, , loc. cit., p. 284.Google Scholar
27 At p. 226.
28 (1935) 54 C.L.R. 200 at pp. 207 et seq.
29 Loc. cit., p. 198.
30 McKinnon v. Bartsch and Mikiolunas v. The Municipal Tramways Trust. Unrep.
31 At p. 227.
32 At p. 191. Cf. Hannah v. Dalgarno (1903) 3 N.S.W.S.R. 494 (Pring J. dissenting); Birch v. The John, Ltd. [1924] G.L.R. 32. In the Britannia Case (see Note 36) the cause of the accident was proved to be the breaking of the axle. In Voice's case the latent defect in the dunnage was not proved but was put forward only as an hypothesis. In Marshall v. Russian Oil Products, 1938 S.C. 773, it was held that the burden of proving a latent defect is on the defendant; see Readhead v. Midland Ry. (1869) L.R. 4 Q.B. 379; Ritchie v. Western Scottish Motor Traction Co., 1935 S.L.T. 13.
33 “Even a probable explanation which may imply the negligence of the defendant is not an answer to the doctrine,” and later, the explanation of the defendant “did not amount to proof” (at p. 185). To support this proposition Fair, J. relied on Laurie v. Raglan Building Co., Ltd. [1942]Google Scholar 1 K.B. 152. In that case Lord Greene had said that the defendant's evidence of a skid was not sufficient “the skid by iteelf is neutral. It may or may not be due to negligence. If, where a prima facie case of negligence arises, it is shown that the accident is due to a skid without default of the driver, the prima facie case is clearly displaced, but merely to establish the skid does not appear to me to be sufficient for that purpose” (at p. 154). This statement appears to be more consistent with the legal presumption theory, and it was so regarded by both Bucknill L.J. and Asquith L.J. in Barkway's case, where the latter said: “When a balance has been tilted one way, you cannot redress it by adding an equal weight to each scale. The depressed scale will remain down. This is the effect of the decision in Laurie v. Raglan Building Co., Ltd., where not a tyre-burst but a skid was involved” (at p. 471). See Hammack v. White (1862) 11 C.B.(n.s.) 588 at p. 599; Wakelin v. L. S. W. Ry. (1886) 12 App.Cas. 41 at p. 45, per Lord Halsbury L.C.; Holmes J. in Pinney v. Hall (1892) 156 Mass. 225.
34 Cf. Charlesworth on Negligence (2nd ed., 1947), p. 36Google Scholar; Milne v. Townsend (1890) 19 R. 830, per Lord Adam, quoted by Lord Dunedin in Ballard's case.
35 Scott v. The London and St. Katherine Docks Co. (1865) 3 H. & C. 596 at p. 601.
36 Scrutton L.J. would seem to have been under the opinion that “exclusive” or “sole” control of the defendant is a pre-requisite: Britannia Hygienic Laundry Co. v. Thornycroft (1925) 95 L.J.K.B. 237 at p. 241. See also Goddard, L.J. in Easson v. L. N. E. Ry. [1944] K. B. 421 at p. 422Google Scholar; Fletcher, Moulton L.J. in Wing v. L. G. O. C. [1909] 2 K.B. 652 at p. 663Google Scholar; qualified by the C.A. in Halliwell v. Venables (1923) 99 L.J.K.B. 353 at p. 357Google Scholar; cf. Gee v. Metropolitan Ry. (1873) L.R. 8 Q.B. 161; Chaproniere v. Mason (1905) 21 T.L.R. 633; Australian Agricultural Co. v. Newcastle (1913) S.R.N.S.W. 667; Edgar v. Shire of Seymour (1922) V.L.R. 318.
37 At pp. 434–5. In Cole v. Trafford (No. 2) [1918] 2 K.B. 523 at p. 528, Pickford L.J. pointed out the difficulty of applying the maxim to a case where the evidence (of breaking of imperfectly set glass) was not more consistent with the master's personal negligence than that of a co-servant. He pointed out that in Byrne v. Boadle (1863) 2 H. & C. 722, the fall of the barrel was more consistent with negligence on the part of the defendant or his servants than with any other cause, “but if it had been necessary to show that the barrel fell by the personal negligence of the defendant I do not think the mere fact of the accident would have been evidence of such negligence” (at p. 529). See also Scott, L.J. in Barkway's Case [1948]Google Scholar 2 All E.R. at p. 469.
38 [1953] N.Z.L.R. 196.
39 [1939] 2 K.B. 14. The court was agreed that the trial judge's direction was insufficient and a new trial was ordered. Res ipsa loquitur was thus not essential.
40 “The plaintiff, having no means of knowing what happened in the theatre, was in the position of being able to rely on the maxim res ipsa loquitur so as to say that some one or more of these five must have been negligent,… But it was for the plaintiff to establish her case against either or both”: at p. 38. Cf. James v. Dunlop, unreported. See B.M.J., April 25, 1931, p. 730.
41 At pp. 47, 50.
42 At pp. 16–17.
43 At p. 23.
44 In Mahon v. Osborne, Scott L.J. asked “against which defendant, surgeon or theatre sister, did the presumption arise?” That, he suggested, implied proof of negligence against one or other.
45 [1951] 2 K.B. 343.
46 In 1909 it had been held in Hillyer v. St. Bartholomew's Hospital [1909] 2 K.B. 820, that in the operating theatre nurses ecased to be servants of the hospital while they were subject to the directions of the operating surgeon, who was not a house surgeon. On the other hand the Court of Appeal in 1942 in Gold v. Essex County Council [1942] 2 K.B. 293, held that a hospital authority owed to a patient a duty to nurse him properly, and was liable for the negligence of a radiographer on its staff. The position of a house surgeon was left open until Collins v. Hertfordshire County Council [1947] K.B. 598. It is unnecessary to explore the connection between these decisions and the concept of the welfare State. A council is rather more susceptible to financial attack than a cottage hospital. In Cassidy's case, Denning L.J. proposed the general principle that hospital authorities are under an obligation to use reasonable care, whence it follows that they cannot rid themselves of that obligation by delegating it to someone else, even to a consulting surgeon employed for a specific operation.
47 Morris v. Winsbury-White [1937] 4 All E.R. 494; Van Wyk v. Lewis (1924) App.D.(S.Af.) 438 at p. 448; Ingram v. Fitzgerald [1936] N.Z.L.R. 905, where it was held that the theatre sister was not the servant of the operating surgeon, nor in a position analogous to that of a servant: Paton v. Parker (1941) 65 C.L.R. 187.
48 In Ybarra v. Spangard (1944) 208 P. 2d. 445, the Californian District Court of Appeal held that the plaintiff might sue all the defendants and recover a joint judgment in a res ipsa loquitur situation. Professor Seavey has criticised the decision as an unwarranted extension of res ipsa loquitur (in Harvard Law Review, 63 (1950), p. 646Google Scholar ). In Funk v. Bonham (1932)Google Scholar 204 Ind. 170; 185 N.E. 312, an Indiana court held that if a physician is in full control he should be prima facie liable; but in Guell v. Tenney (1928) 262 Mass. 54; 159 N.E. 451, a Massachusetts court held that if the physician and nurse have separate duties the physician cannot be held liable if there is no more evidence than that a sponge was not removed.