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WHEN THINGS FALL FROM ABOVE

 

Ng Ai Rene explains the maxim of res ipsa loquitur

INTRODUCTION

An action in negligence allows a plaintiff to seek compensation or damages from the defendant whose act or omission caused the plaintiff to suffer harm. To succeed in his claim, the plaintiff must be able to establish that:

  1. the defendant owed a duty of care to the plaintiff;
  2. the defendant had breached that duty; and
  3. the plaintiff suffered loss or damage as a result of that breach.

To prove the elements above, the plaintiff has to adduce evidence of the facts on which his claim is based. Generally, the mere fact of an accident happening is not sufficient evidence of negligence.

THE RES IPSA LOQUITUR MAXIM

In some situations, it may be extremely difficult for the plaintiff to know what precise acts or omissions led to the harm in order to make out the element of breach and it may then be impossible for him to discharge the burden of proof that the law ordinarily imposes on him.

In such cases the plaintiff may seek to invoke the maxim of 'res ipsa loquitur'. Res ipsa loquitur translated from Latin simply means 'the fact speaks for itself'. In essence, what this means is that when the facts are so obvious so as to raise the inference that the defendant had been negligent, the plaintiff would be entitled to rely upon the mere happening of the accident as evidence of negligence.

Where the maxim is successfully invoked, the burden of proof shifts from the plaintiff to the defendant and it is then for the defendant to introduce evidence to explain how the impugned incident occurred without negligence on his part.

SCOTT V LONDON AND ST KATHERINE DOCKS CO

The principles of res ipsa loquitur can be traced back to the 1800s to the Scottish case of Scott v London and St. Katherine Docks Co [1861-1873] All ER Rep. 248 ("St. Katherine Docks").

The facts are these: The plaintiff, a customs officer who was in charge of superintending the weighing of goods, was attending to duty at the defendant's warehouse. While passing through the warehouse from one doorway to another, he was suddenly and violently hit to the ground by some bags of sugar that fell on him from an upper window of the defendant's warehouse. The plaintiff suffered serious and permanent injuries as a result.

At the trial, the court held that the plaintiff had not adduced sufficient evidence of negligence on the part of the defendants to bring the case to a jury. The plaintiff obtained a rule to set aside the court's decision. Thereafter, the rule was made absolute, resulting in an appeal being made to the Court of Exchequer.

The appeal court recognised that there would be situations in which the facts of the incident itself would establish a prima facie case of negligence against the defendant. In setting out the principles on which the maxim of res ipsa loquitur would apply, Erle CJ stated as follows:

"There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."

Despite St. Katherine Docks being a celebrated case that has come to be regarded as the leading authority on the maxim of res ipsa loquitur, it is not known whether the maxim was in fact invoked in this case as the appeal court did not decide on the issue and instead, directed a new trial to assess the evidence.

WALSH V HOLST & CO. LTD

The maxim was successfully invoked in Walsh v Holst & Co. Ltd [1958] 3 All ER 33. The facts in this case are strikingly similar to St. Katherine Docks. The plaintiff was walking along a pavement between a highway and a four-storey building which was undergoing renovations. He was then found lying on the pavement with wounds on his forehead and nose. Lying a few feet away from him was half a brick but it did not have any trace of skin or blood on it.

The plaintiff then sued various parties, in particular the contractor and the occupier of the building. The High Court's refusal to apply the maxim of res ipsa loquitur was reversed by the Court of Appeal. According to Hodson LJ, once it has been proved that the building was in occupation and the occupier thereof had employed the contractors to carry out renovation works that involved the dislodgment of bricks, there is a prima facie case against both of these defendants.

As mentioned above, the application of the maxim does not mean that the defendants are negligent. Rather, the application of the maxim merely shifts the burden to the defendants to satisfy the court that the incident had occurred without negligence on their part. In this case, the Court of Appeal, by a 2:1 majority, was satisfied that the defendants had taken sufficient precautions to prevent injury to users of the highway (which presumably, included the adjoining pavement) and therefore, had not been negligent. Accordingly, the Court of Appeal upheld the decision of the High Court to dismiss the plaintiff's case.

APPLICATION IN MALAYSIA

A recent Malaysian case where the issue of res ipsa loquitur arose was in David Chelliah @ Kovilpillai Chelliah David v Monorail Malaysia Technology Sdn Bhd & Ors [2009] 4 MLJ 253. The plaintiff was standing at a road divider directly below an elevated monorail track, waiting to cross the road. Overhead, a monorail train was passing by on a test run. As it passed, a safety wheel from the train weighing 13.4 kg came off and fell on the plaintiff below, causing him to suffer serious head and bodily injuries.

The plaintiff brought an action against various parties for negligence, including the first defendant who was the designer and manufacturer of the monorail train and the second defendant who was responsible for the installation, commission and operation of the monorail system.

From the results of investigations that were conducted, it appeared that the bolts from the wheel could have been unscrewed gradually and were eventually detached from the hub, causing the wheel to come off. Harmindar Singh JC held that logically, the possibilities were that this could only have happened if the bolts had not been tightened properly by the persons in charge or if the bolts had been tampered with by someone else.

The question then arose as to whether the plaintiff was entitled to rely on the maxim of res ipsa loquitur so that a prima facie inference of negligence could be drawn. If not, the plaintiff had to prove how the bolts could have come unscrewed to establish negligence on the part of the defendants.

The trial judge, after referring to the often cited passage from the judgment of Erle CJ in St. Katherine Docks, further elaborated that the maxim had been explained in the following terms by Megaw LJ in Lloyde v West Midlands Gas Board [1971] 2 All ER 1240:

"It means that a plaintiff prima facie establishes negligence where:

  1. it is not possible for him to prove precisely what was the relevant act or omission which set in train the events leading to the accident; and
  2. on the evidence as it stands at the relevant time it is more likely than not that the effective cause of the accident was some act or omission of the defendant or of someone for whom the defendant was responsible, which act or omission constitutes a failure to take proper care for the plaintiff's safety."

Applying the above principles, the Court held that it was not in the ordinary course of things, that a safety wheel of a monorail train would fall off and hit persons below. It was also evident to the learned Judicial Commissioner that although the plaintiff could point to the safety wheel coming off, he was unable to show precisely why the wheel had come off. In the circumstances, the Court held that the plaintiff had made out a prima facie case of negligence against the first and second defendants and the onus had shifted to them to provide credible evidence to show that the incident occurred without negligence on their part.

As the first and second defendants were unable to provide a reasonable explanation as to how the safety wheel had come off the train, the Court held that negligence had been proven against them and held them to be equally liable to the plaintiff for damages and costs.

CONCLUSION

The maxim res ipsa loquitur is essentially a common sense rule that enables justice to be done when the facts that have a bearing on causation are not known to the plaintiff but ought to be within the knowledge of the defendant.

The maxim has been applied not only when things fall from above, but also in other instances where the conditions laid down in St. Katherine Docks are fulfilled. Indeed, it has been applied in numerous other instances, such as where the door of a train suddenly opened when a passenger looked out of the window (Gee v Metropolitan Rly (1873) L.R. 8 Q.B. 161), where a motor vehicle overturned on a highway for no apparent reason (Halliwell v Venables (1930) 143 L.T. 215), when a patient developed gangrene after receiving an injection on his arm (Cavan v Wilcox (1974) 44 D.L.R. (3d) 42) and where a patient who sought treatment for two stiff fingers ended up with four stiff fingers (Cassidy v Ministry of Health [1951] 2 K.B. 343).

It is to be noted that the present judicial trend in England is to use the expression "prima facie case" rather than "res ipsa loquitur." To establish a prima facie case, it must be proven that: (1) some unexplained occurrence had happened; (2) the occurrence would not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff; and (3) the circumstances point to the negligence in question being that of the defendant, rather than any other person. Perhaps the cries of "res ipsa loquitur" that ring out from St. Katherine Docks will one day cease to echo through the courts of justice.

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