Res Ipsa Loquitor1 - the thing may speak for itself, but it doesn't prove itself
It is common practise in lower courts (such as the Magistrate’s Court and Local Court, especially in motor vehicle property damage matters) for plaintiff’s to plead “res ipsa loquitor” as a particular of negligence. The decision in Holberts Oyster Supplies Pty Ltd v Stephenson [2014] NSWSC 425 provides a timely reminder that irrespective of how clear a breach of duty of care may appear, evidence of a breach of duty of care must still be adduced and accepted – res ipsa loquitor is an inferential reasoning process that the Court can apply to the evidence before it, not a basis to abstain from leading evidence.
Background
Holberts Oyster Supplies was an appeal from a New South Wales Local Court judgment that arose from a fairly straight forward motor vehicle collision. Mr Stephenson (first defendant) was driving his truck and towing a trailer owned by the Australia Overnight Trucking Co Pty Ltd (the second defendant). Whilst travelling along the F3 Freeway, a spare wheel stored below the trailer came loose and came to rest on the Freeway. The Plaintiff’s vehicle collided with the spare wheel, causing damage to the Plaintiff’s vehicle. During the hearing, the Plaintiff sought to rely on the principal of res ipsa loquitor to establish a breach of duty of care; however, the Magistrate rejected this and entered judgement for the defendants2.
Res Ipsa Loquiter
There were three main grounds of appeal but the appeal decision ultimately related on the Court’s view that the Plaintiff had not adduced sufficient evidence to satisfy the magistrate that a breach of duty of care had occurred.
The Court reiterated that the principle of res ipsa loquitor is not a distinct, substantive rule of law but merely a term which describes an inferential reasoning process. The onus to prove negligence remains on the plaintiff even where the principle is applicable3. Ultimately the appeal failed because there was no direct evidence as to what caused the spare wheel to dislodge and the Magistrate was not satisfied that the incident was of a kind, that in the common knowledge and experience of mankind, ordinarily occurs without negligence; and therefore, the principle of res ipsa liquitor did not apply4.
Impact
The decision, especially with the principles of case management (including restrictions on expert evidence) provides somewhat of a problem, especially for insurers that are often involved in low quantum property damage cases.
The decision makes it clear that a plaintiff relying on the principle of res ipsa loquitor, is not required to lead evidence to rule out all other explanations of the incident5, yet conversely approves the position taken by the Magistrate that there were other possibilities as to why the tyre may have come loose (although these possibilities were not supported by evidence)6.
Unfortunately, the practical effect of this view may require a plaintiff to seek to lead expert evidence to rule out all other material and practical possibilities, even if on the face of the facts, it appears clear enough that the probable reason for the cause of an event is some form of negligence by the defendant. The costs of such evidence may be costly and disproportionate in low quantum matters.
1 Res Ipsa Loquiter is a latin expression meaning "the thing speaks for itself"
2 Refer to [2] to [5]
3 Refer to [9] for a summary of the legal principles and tests to be applied
4 Refer to [25] to [26]
5 Refer to [35]
6 Refer to [31] to [32]