RES IPSA LOQUITUR IN ENGLAND AND AUSTRALIA
| DOI | http://doi.org/10.1111/j.1468-2230.1972.tb02352.x |
| Published date | 01 July 1972 |
| Date | 01 July 1972 |
THE
MODERN LAW REVIEW
Volume
35
July
1972
No.
4
RES
IPSA
LOQUITUE
IN ENGLAND
AND AUSTRALIA
IT
really is time that English courts made up their minds what the
doctrine of
Tes
ipsa
loquitur
is all about. Although the maxim has
been with us for over
100
years, English courts have still not finally
settled (or at least have not consciously settled) the most crucial
issue involved in its application. Indeed they frequently appear to
be unaware of the nature of this issue, which is all the more
SUT-
prising since their brethren in the Australian High Court have made
their views on this issue abundantly plain in a series of cases
extending over the past thirty-five years.
There are two basic views as
to
the purposes and effects of
the maxim.
1.
The ikst is that the maxim is not a distinct rule of law
(or
evidence) in its
own
right and that in all cases of negligence the
ultimate or legal burden of proof of negligence rests upon the
plaintiff. According to this view the maxim is no more than a
summary way of describing a situation in which
it
is permissible
to infer from the occurrence of an accident that
it
was probably
caused by the negligence of the defendant. However, on this view,
the inference of negligence
is
merely permissible (not obligatory)
and
if
at the conclusion of the case the tribunal of fact is not satisfied
that the accident was more probably than not caused by the
negligence of the defendant, the plaintiff must fail.
3.
The second view
is
that the maxim involves more than this
and that
it
does represent
a
distinct rule of law
(or
evidence) in
its own right. According to this view a
legal
burden of proof
may be cast on the defendant in certain circumstances and the
maxim therefore indicates an exception to the general principle
that the
legal
burden of proof always rests on the plaintiff through-
out a negligence action. On this view, once the maxim operates,
the plaintiff is entitled to
a
verdict even though, at the conclusion
of the evidence, the tribunal of fact remains in doubt whether the
accident was more probably than not caused by the negligence
of
the defendant.
A
plaintiff could not, of course, be entitled to
a
VOL.
35
(4)
887
1
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