res ipsa loquitur?

No thanks I’ve had a glass already.

No really…what does it mean ? OK here’s a brief summary.

The scope and effect of the principle of res ipsa loquitur have been decisively settled by the High Court: Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121.

The principle is not a distinct, substantive rule of law, but an application of an inferential reasoning process, and the plaintiff bears the onus of proof of negligence even when the principle is applicable: Schellenberg [at 22].

A plaintiff may rely on res ipsa loquitur even though he or she has also pleaded particular acts or omissions of negligence on the part of the defendant provided the tribunal of fact concludes that:

1. there is an absence of explanation of the occurrence that caused the injury;
2. the occurrence was of such a kind that it does not ordinarily occur without negligence; and
3. the instrument or agency that caused the injury was under the control of the defendant: Schellenberg [at 25].

The principle only applies if it is within the common knowledge and experience of mankind that the occurrence is unlikely to occur without negligence on the part of the party sued. Where the occurrence is outside the experience of the lay person, and the evidence, expert or otherwise, does not establish that such an occurrence ordinarily does not occur without negligence, res ipsa loquitur is inapplicable: Schellenberg [at 41], [at 43].

Lets use an example. Lets say an injury occurred to a person as a result of a collision between that person and another walking in opposite directions down a busy street. Is the collision of such a kind that does not ordinarily occur without negligence? We know that collisions such as this are a regular and common occurrence without negligence. This is thus a positive finding that the occurrence can occur without negligence. Hence, the principle wont apply. This highlights the need for evidence of the circumstances of such collision. It would be a slam dunk for the judge if the tortfeasor wasn’t called to give an account.  Be careful of a Jones v Dunkel inference.

Further, it is not sufficient for the facts merely to speak of negligence: the evidence must point to the defendant’s negligence: Schellenberg [at 48].