The Facts Speak For Themselves; Utilis

by Graham Kerr on November 23, 2012

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Guest Scots Law Blog post by Graham Kerr LLB (Hons) Dip LP, owner of Legal Media Solutions in Scotland and a founder of How to Moot. You can follow Graham on Twitter @gster84.

I remember sitting in a lecture for Delict, many moons ago and learning about the doctrine of res ipsa loquitur. Pretty much everyone else thought it was just another lecture. However, I thought it was a very useful doctrine to fall back on, or at least could see the use it had in practice. I also thought it was interesting because the leading case on the subject made me chuckle a bit, meaning I remembered it in detail – great for my exam it turned out!

Anyway, I had all but forgotten about it once finishing my module and my degree but I felt like a wee Google and found that it seems to be making a comeback – a comeback of sorts that is. There have been a couple of useful new cases that succeeded in implementing this doctrine and widespread commentary that it will be very useful for cases involving medical negligence; cases notorious for being difficult to win.

Res ipsa loquitur – What does it mean?

The latin maxim translate into English means simply ‘the facts speak for themselves’ and its usefulness is to be found in cases of Delict or in England Tort. In cases where there is difficulty in proving liability then res ipsa loquitur offers can be relied upon as a means of putting the onus of proof onto the defender. Meaning the defending person(s) have to then prove that the accident you are claiming for was not their fault.

The leading case on the doctrine is Scott v London & St Katherine Docks Co [1865] 3 H & C 596 in which a gentleman was walking along the docks at St Katherines and some bags of sugar fell on his head, causing him injury. In the original case the judge found that there was insufficient evidence of negligence on the part of the defenders.

However on appeal the pursuer was successful and the court stated: “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.”

The case of  Murray v. Edinburgh District Council 1981 S.L.T. 253 is said to have most succinctly described the position in Scots Law. Lord Maxwell stated “The principle only applies where the incident suggests negligence on someone’s part and, because of exclusive management and control in the defenders at the time or times when the negligence occurred, it can be presumed that it was the defenders who were negligent….” This is the test generally used to decide whether a case can be decided using res ipsa loquitur.

How has the doctrine been used recently?

At the turn of the millennium there was a case involving a football club after they were injured whilst attending the Opening Ceremony of the European Special Olympics at its stadia in Glasgow.  In McDyer v Celtic Football and Athletic Company Limited and Others 2000 SC 379, a fan was injured when a piece of wood fell from the roof and caused him injury to his wrist. He argued, successfully that in this case that the doctrine of res ipsa loquitur should be relied upon to help in his case. This was because proving negligence based on the facts was very difficult.

The case of Greenhorn v South Glasgow University Hospitals NHS [2008] CSOH 128 shows how this old doctrine can be of particular use in medical negligence claims. In this case the pursuer was injured by a surgeon during an operation. The application of this rule was based partly on the fact that the type of injury that occurred during the procedure is not one that the medical science generally accepted as being a risk of the surgery.

The judge took great care to highlight that it was the fact that the risk of this type of injury was so remote and due to its remoteness the patient was not warned of the possibility it might occur.

This is an extremely brief look at how this doctrine is maturing in the case law and there are a plethora of other cases that one might look to for further guidance. The usefulness of it in medical negligence cases is however, something I believe is worthy of consideration for further exploration, given the difficulty of meeting the burden of proof in those types of cases.

Graham Kerr

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