Williams, K.

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Res ipsa loquitur still speaksWILLIAMS, K.Available from Sheffield Hallam University Research Archive (SHURA) at:http://shura.shu.ac.uk/1021/This document is the author deposited version.  You are advised to consult the publisher's version if you wish to cite from it.Published versionWILLIAMS, K. (2009). Res ipsa loquitur still speaks. Law quarterly review, 125, 567-570.Repository use policyCopyright © and Moral Rights for the papers on this site are retained by the individual authors and/or other copyright owners. Users may download and/or print one copy of any article(s) in SHURA to facilitate their private study or for non-commercial research. You may not engage in further distribution of the material or use it for any profit-making activities or any commercial gain.Sheffield Hallam University Research Archivehttp://shura.shu.ac.uk Res ipsa loquitur still speaks.Kevin WilliamsIn George v Eagle Air Services Ltd [2009] UKHL 21 the Judicial Committee of the PrivyCouncil found in favour of an unrepresented widow and her five children by relying on thedevice of res ipsa loquitur.Her common law husband, who had worked as an aircraft mechanic for the respondents,was killed, along with the pilot, when one of the company’s light aircraft crashed at the endof a flight from St Lucia to Union Island in the Caribbean. Pilot error was alleged to be thecause. The defence simply denied negligence. No positive case to explain the crash wasadvanced, beyond asserting that the plane had been ‘airworthy’ when it took off. However,the defence did claim that the deceased had been travelling on a ‘gratuitous ride which wasnever sanctioned or authorised’ and that, insofar as the fatal crash might be attributable tothe aircraft having been mishandled or flown otherwise than in accordance with normal safeprocedures, the pilot was ‘acting outside the course of his employment’. These allegations,which any self-respecting pupil would blush to put, even on behalf of a Lloyds insurer, wereperemptorily dismissed by the Board as ‘misconceived’ and ‘patently unsustainable’ [at 14],respectively.Following the crash, an air accident investigation was promptly conducted and an officialreport produced within five weeks; but, after much procedural wrangling, the trial judgerefused to admit it into evidence. This left Mrs George, when asked about her case fornegligence, being able to say in the witness box only that, not having been there, she did notknow what had caused the crash, though ‘I had a dead body back’. Whilst this might beheard as the classic plea of a res ipsa claimant, at the end of a trial process thatextraordinarily seems to have dragged on across a five year period, the judge rejected herclaim for want of ‘any evidence…as to how the accident…occurred.’ That decision wasupheld by the Court of Appeal of the Eastern Caribbean, but without referring to theskeleton submitted by (the now unrepresented) Mrs George asking ‘whether the doctrine ofRes Ipsa Loquitur applies’.In an admirably, if surprisingly short opinion, Lord Mance speaking for the Board held thatit did. ‘This was the respondents’ aircraft, their flight and their pilot. Aircraft, even smallaircraft, do not usually crash’ so that it was ‘not unreasonable to place on them the burdenof producing an explanation which is at least consistent with absence of fault on their part.’Given that the respondents had ‘never attempted to suggest any explanation of the accidentor any reason preventing them giving an explanation’, the Board concluded that they had‘failed to displace the inference of negligence which…results from the crash itself’ [at 13].The sole authority referred to was Higginbotham v Mobil Oil Corporation 545 F 2d 422(5th Cir, 1977), cited in Shawcross and Beaumont’s Air Law. Having first noted an earlierreluctance to apply res ipsa to air crashes, the authors cite the US Federal Court of Appealsto the effect that modern developments in design, technology, pilot training, navigationalaids and so forth, had combined to give air travel an estimable safety record, so that crashesought nowadays to be regarded as occurrences that do not ordinarily happen in the absenceof fault by someone connected with the manufacture or operation of the aircraft.So, despite having succeeded in keeping out the air accident report, which presumablymight well have explained the likely cause(s) of the accident, the respondents’ high riskstrategy of putting the claimant to the proof by flatly denying any fault and refusing to offerany explanation rightly failed.The decision is to be welcomed, notwithstanding that on two previous occasions theimminent demise of res ipsa across the common law world has been predicted in this Review(see M. McInnes (1998) 114 LQR 547 and C. Witting (2001) 117 LQR 392). It is significantthat despite the Supreme Court of Canada appearing to have read the last rites over resipsa in Fontaine v British Columbia (Official Administrator) [1998] 1 SCR 424 (discussed byMcInnes), Professor Klar continues to devote almost twenty pages to a discussion of the‘maxim’ on the perfectly proper ground that how claimants may prove negligence by the useof circumstantial evidence continues to be crucial (see L. Klar, Tort Law, 3rd edition, 2003,pp. 505-524). Indeed, Mackenzie JA in Marchuk v Swede Creek Contracting Ltd (1998) 116BCAC 318 is cited by Klar (at p. 524) as saying that ‘while the Supreme Court was criticalof the Latin maxim, the underlying principles…were not modified’.Some may be disappointed that the Privy Council did not engage in a more detailed analysisconcerning precisely when res ipsa operates and how.  George v Eagle Air Services, however,takes for granted its continued desirability, at least so far as concerns personal injuryaccident victims and their dependants. It implicitly accepts that the policy justifications forit include disparity of knowledge and the legitimacy of putting pressure on those who are inthe best position to know to advance their explanation.  It also reasserts the now orthodoxposition concerning res ipsa’s procedural effect, which was set out in another decision of thePrivy Council, Ng Chun Pui v Lee Chuen Tat [1988] RTR 298.  Rather than shifting the legalburden of proof (as happens, for example, where s. 11 of the Civil Evidence Act 1968 issuccessfully invoked, see Wauchope v Mordecai [1970] 1 WLR 317), once res ipsa is engagedonly an inference of negligence is raised (Cf. P. Atiyah ‘Res Ipsa Loquitur in England andAustralia’ (1972) 35 MLR 337).  Witting (at 393) rightly suggests that any inference mustencompass both an implied breach of duty and that the breach caused the claimant’sdamage. However, unlike other types of claim where circumstantial evidence is in issue, suchclaimants need not point to any specific failure said to have caused their harm. Bydefinition, they are unable to show how or why the accident happened so that courts arebeing invited to estimate the probability that some unspecified and perhaps unknowablenegligence is responsible. Accordingly, if a defendant is to escape liability to pay damages,he must discharge what has variously been called a forensic, evidentiary, or secondaryobligation by offering an equally compelling explanation that is consistent with no fault onhis part or on the part of those for whom he is responsible. It has been observed that thepractical difference between a formal reversal of the burden of proof and the generation of amere inference may frequently be imperceptible to the eye of the ordinary litigator.McInnes (at 550) has gone so far as to argue that res ipsa is superfluous, though this is onlythe case, as he appears to concede, if we accept a minimalist view, namely, that depending onthe circumstances the res may raise inferences varying from the downright improbable tothe virtually conclusive. Yet when we say that its application raises a prima facie case, wesurely mean that in the absence of plausible rebuttal evidence, which may be direct orcircumstantial, though it must be more than just speculation or simple conjecture, the merefact of the occurrence implies that the court is entitled to treat the defendant as culpably atfault.  Mumbling has no place here. Either the thing speaks for itself or it does not.Provided we are clear about its effect, and reject as a canard the idea that res ipsa is a covertmeans by which to impose a stricter (even strict) standard of care on defendants, it isperhaps simply a matter of taste whether this device for helping claimants to prove theircase is described as a ‘convenient formula’, as Morris LJ did in Roe v Minister ofHealth [1954] 2 QB 66, at 87, or as a ‘doctrine’, as Clerk and Lindsell continue to do(19th edition, 2006, para. 8-151). As a distinguished American academic has observed,whether it is permissible to speak of res ipsa as a doctrine is a ‘truly minor dispute’ (see D.B. Dobbs, The Law of Torts, 2000, p. 370).Dr. Kevin WilliamsSheffield Hallam University.This was published in (2009) 125 Law Quarterly Review 567-570

Res ipsa loquitur still speaks

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