The presumption of the breach of duty, the

The hardest responsibility
a claimant goes against in a negligent case is proving the defendant has acted
with negligence. The claimant’s responsibility is to determine that a defendant
was negligent by using the balance of probabilities. The Civil Evidence Act
1968 s11 indicates the fact of conviction on a criminal offence that is valid in
evidence in a civil case.1
When a defendant is convicted in a course of conduct that is seen as negligent,
he may rebuttal against the presumption of liability that is created and must
prove that he acted without negligence. Therefore, the phrase res ipsa
loquitur, which means ‘the thing speaks for itself’, is what is used to
determine the proof of negligence. This doctrine proves that a breach of
another individual’s duty of care may be deduced by evidence from the events
that occur. If the breach is seen obvious to have a presumption of the breach
of duty, the claimant does not have to substantiate extensive evidence. The
standard duty of care that is said to have been seen by a defendant is
ordinarily, distinguished by context. This concept is used when an individual undertakes
an accident that occurs and does not ‘ordinarily happen’ without negligence interfering.2
Res ipsa loquitur is also known as circumstantial evidence, which provides evidence
to determine whether a defendant’s negligence has caused an outstanding event
that however has caused injury to the claimant. The term res ipsa loquitur is
referred to as the maxim, which has three main components. When courts use the
maxim, they are preparing to identify that the defendant was negligent without
referring to any evidence provided by the claimant. Firstly, the thing that
caused the damage must be in full control of the defendant himself. Secondly,
the accident that is caused must be something that does not occur without the
absence of negligence. Lastly, there’s no explanation as to what occurred in
the accident.3

 

Starting
off, the accident in the event must solely be under the control of the
defendant. The accident should indicate negligence on the role of the
defendant, no one else. In Gee v
Metropolitan Railway the claimant had leaned towards the train door after
it had left the station.4
The door opened and the claimant fell outside and the door was found to be
under the full control of the defendant and therefore this was evidence of
negligence. The defendant was found liable and the facts spoke for themselves
and were proved as likely to eventuate by negligence. Contrastingly, Easson v London & North Eastern Railway the
claimant was a four-year-old child who had been injured by falling out of the train
door. The incident occurred when the train was miles away from the last
station.5
Res ipsa loquitur was not applicable in this case. It was held, the defendant
was not liable due to not having full control over the door at that moment and
accordingly, any passenger on the train could have obstructed the door. In Hambrook v. Stokes Brothers the
defendant had not properly secured a lorry and it fell down the hill where the
claimants children were walking and a lady feared that her children might get
injured.6
Later after asking a bystander nearby, she was told that one of the children
had been injured and she suffered a shock that resulted in her death. The
defendant was found liable as he caused negligence for not securing the lorry and
he was in full control of the accident. These cases illustrate that the
accident could have not have ordinarily occurred unless the defendant acted
negligently.

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Secondly, the
accident in the event must have not ordinarily occurred without negligence
intervening. The case Scott v London and
St Katherine’s Dock Co establishes these principles.7
The claimant was standing near the defendant at a warehouse when a couple bags
of sugar fell onto him. There was no evidence provided that the defendant had
acted with negligence. However, it was held sufficient in the hands of the
claimant that the defendant was solely in control of the incident. Carelessness
or negligence had to be a factor of the situation because it would not have
normally occurred otherwise. Therefore the defendant must provide facts that
prove he acted not negligently. This maxim has also been applied in medical
negligence situations.8
In Mahon v Osborne the claimant had
entered a hospital for an operation on his abdomen. Later a swab appeared in
his body and he died.9
The claimant took the opportunity to call an expert to provide evidence and
identify that the accident could not have happened without negligence. It was
held that the event was caused due to a breach of the duty of care towards the
claimant as well that this individual was the defendant. Furthermore the defendant
failed while in control because such an incident is outstanding to occur to a
human being and could not have occurred unless the defendant in control failed
in his duty. In Ratcliffe v Plymouth
& Torbay Health Authority after a successful operation for the claimant
he was left with a serious neurological defect on the right side of his waist.10
He received a spinal anesthetic as a painkiller for his ankle during the
operation and the defendant brought evidence to show that he provided the
correct duty and administered everything correctly, therefore acting with no
negligence. The claimant appealed and the trial judge dismissed on the basis
that the res ipsa loquitur could not be used incorrectly and was permitted to
discover that the anesthetist had performed everything not negligently.
Therefore the prima facie of negligence had been rebutted. Consequently,
medical negligence depends on the reasonable evidence provided and the
inferences given to the judge.11

 

Lastly, the
accident must not have any description or explanation to what occurred. Res
ipsa loquitur only occurs where there is no explanation to what happened in the
accident because if there was an explanation, it would be a matter of question
whether the defendant was negligent or not. In Barkway v South Wales Transport Co Ltd the claimant had been
injured in a road accident where the bus he was in, had popped a tire and
crashed.12
The tire popped due to a defect inside it that could not be identified from
before. Res ipsa loquitur was held inapplicable but however the defendants were
still liable because they did not direct the drivers to check the tires and
this was found sufficient to conclude negligence. In Chum Pui v Lee Chuen Tat the driver had swerved the car to avoid
another vehicle and resulted with crashing into a bus and causing injuries to
the passengers.13
Therefore, the defendant was not liable or negligent because it was seen as a
reasonable decision to make. Therefore, where a defendant provides evidence, they
assess to distinguish if it was a reasonable decision and to understand the
inference of negligence from the accident. In Colvilles v Devine a pipe carrying oxygen had exploded and the
defendants provided an explanation for the explosion but the court held that on
the facts, they were liable as they did not prevent the particle entry or check
up on it.14
Therefore this shows that the defendant must prove no negligence and judges are
solicitous to the alternative of providing an explanation.

 

In conclusion,
the effect of the maxim helps when the claimant successfully undergoes res ipsa
loquitur. It is the defendant’s task to indicate he acted not negligently or to
provide an explanation for the accident and prove no negligence on his side. Res
ipsa loquitur provides doubt and uncertainty when applying it. The concept has
died three times and is no longer used, as assistance to establishing
negligence in England. Therefore the doctrine needs to be reformed and used
more precisely. Once the claimant raises the maxim and doctrine of res ipsa
loquitur, an inference of negligence appears in which the defendant must prove
otherwise. Consequently, the claimant must prove using the three components of
the maxim and with the balance of probabilities that the defendant breached the
duty of care owed and that he has caused injury or damage negligently.