Res ipsa loquitur and Civil Evidence Act 1968

• Tort of Negligence


  Liability in negligence for injury to people and damage to property
• Res Ipsa Loquitur


  This is Latin for 'the thing speaks for itself'
• Res Ipsa Loquitur


  • There must be reasonable evidence of negligence
  • The thing is shown to be under the management of the defendant, or his servants
  • The accident is such as, in the ordinary course of things, does not happen if those who have the management of the machinery use proper care
• Prima Facie


  At first sight
• The effect of res ipsa loquitur is to create a prima facie presumption of negligence against the defendant
• The defendant must then explain how the accident could have happened without negligence
• Res ipsa loquitur does not change the burden of proof
• The claimant still has to prove the case on the balance of probabilities
• Res ipsa loquitur changes the 'evidential burden of proof' which is not the same as the 'burden of proof'
• Henderson v Henry E. Jenkins & Sons (1970) Per Lord Pearson: 'In an action for negligence the plaintiff…has the burden of proving, that the accident was caused by negligence on the part of the defendants… The formal burden of proof does not shift. But if in the course of the trial there is proved a set of facts which raises a prima facie inference that the accident was caused by negligence on the part of the defendants, the issue will be decided in the plaintiff's favour unless the defendants by their evidence provide some answer which is adequate to displace the prima facie inference.'
• Using Res Ipsa Loquitur

  • The thing that caused the damage was under the control of the defendant
  • The cause of the accident is unknown
  • The accident is such that would not normally happen without negligence
• Res ipsa loquitur cannot be used if the cause of the accident is known
• Res ipsa loquitur cannot be used if the thing causing damage was not under the control of the defendant
• Res ipsa loquitur can only be used if the accident would not normally occur without negligence
• Civil Evidence Act 1968 s.11

  Claimants in negligence proceedings may be helped by the Civil Evidence Act 1968 s11 which can reverse the burden of proof in certain circumstances
• If a person is convicted of a criminal offence against the claimant and the claimant then brings a civil action on the same facts that led to the conviction, then the criminal conviction is evidence of the defendant's liability unless he or she can prove to the contrary