The Extent Of Res Ipsa Loquitur
| Author | B. Lillywhite |
| DOI | http://doi.org/10.1111/j.1468-2230.1959.tb00519.x |
| Published date | 01 January 1959 |
| Date | 01 January 1959 |
82
THE
MODERN
LAW
REVIEW
VOL.
22
impossible for the sellers to perform the contract, and the buyers’
action for damages failed.
Although this case establishes no new principle it
is
interesting
because it does appear to be the first reported case of frustration
of
a contract for the sale of unascertained goods otherwise than by
supervening illegality. The case is also a good illustration of the
term
“
usual and customary route
”
in
a
c.i.f. contract. The only
doubt arises from the learned judge’s words that the considerably
longer route
“
may involve the seller in quite different obligations
as to the condition of the goods on shipment.” The report does
not refer
to
any evidence that such different obligations would in
fact have been incurred in the particular case.
0.
C.
CILES.
THE
EXTENT
OF
RES
IPSA
LOQUITUR
THE
decision
of
the Court of Appeal in
Walsh
v.
Holst
Co.,
Ltd.,’
raises many uncertainties about the working of the rule of
res
ipsa
Zoquitur.
The facts of the case were that the plaintiff was lawfully
upon the highway when he was struck by a brick. The brick came
from a building to which certain substantial structural alterations
were being made.
It
was accepted by all members of the court
that a prima facie case of negligence arose against both occupier
and contractor because
res
ipsa
loquitur.
However, the court held, by
a
majority, that the burden laid
upon the defendants had been discharged by their proving reason-
able precautions to prevent an accident. Evidence was given that
the elaborate scaffolding and fencing that had been erected was
the best of its kind, and there was also shown to be a system of
inspection to find loose bricks lodged in
a
dangerous position.
No
evidence was adduced to show that any inspection had
in
fact been
carried out at the relevant time. The reason for this was partly
that Boon, the foreman who had the duty of inspecting, had died.
The very similarity of these facts to those in
hloore
v.
R.
Fox
Q
Sons
makes the decision the more confusing. In
Moore
v.
Fox,
it will be remembered, Evershed
M.R.
fastened upon the fact that
the maintenance man and foreman were not called and said
(p.
348)
that the proper inference to be drawn from it was that
there had been
“
no proper care
or
maintenance of the machine.”
He required evidence
of
conduct which, whatever the cause of the
accident, was in accordance with a proper duty to take care. But
in
Walsh
v.
Holst
both Hodson and Sellers
L.JJ.
said that
Moore
v.
Fox
turned upon there being no reasonable precautions; Holst
A
Co.
had taken reasonable precautions, and both refused to hold that
the fact that Boon was not called was any reason to suppose that
he had done his job without due care.
1
[1958]
1
W.L.R.
800;
[1958]
3
All
E.R.
33.
2
[1956]
2
W.L.R.
342.
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