"Inferences of Negligence: Res Ipsa Loquitor", Harper Grey Insurance Law Seminar
November 2004A paper presented by Nigel Trevethan at the November 2004 Insurance Law Seminar
Res ipsa loquitor, “or the thing speaks for itself” simply put, meant that if someone suffered a loss in circumstances where it appeared to be caused by an insured; the insured was liable unless he or she could establish that someone, or something else, caused the loss. The doctrine is illustrated in the case of Byrne v. Boadle where a barrel of flour struck a person walking past a flour shop. Despite the fact that no evidence was led establishing negligence against the flour shop, the flour shop was found negligent and had to pay damages. Res ipsa is an important tool for a plaintiff establishing negligence because it allows the case to be proven without expert evidence establishing causation, or detailed factual evidence that would be difficult to acquire. The case is made by proving that the barrel of flour struck a pedestrian. To defend the claim the flour company must explain how the accident occurred without negligence.
Circumstances of res ipsa loquitor are not as limited as one might imagine. The doctrine has commonly been applied to car accidents where it has not been possible to determine how an accident was caused, but the circumstances allow an inference of negligence to be drawn. For example, in Armstrong v. A.G. of New Brunswick a truck was driven in broad daylight into a ‘batter post’ on a bridge. The Court noted:
No motor driven vehicle when operated in a careful manner will in the ordinary course of events run nto a batter post of a bride. The fact of the striking was evidence from which the inference [of negligence] could be properly drawn...
In Kirk v. McLaughlin Coal & Supplies Ltd. an oil burning furnace operated for 12 years. It received servicing on January 7th and exploded on February 21st of the same year. Despite the fact that the homeowner could not establish what caused the explosion the court concluded that in the circumstances the servicing of the furnace must have caused the explosion despite the fact that no explanation was provided for the explosion.
Essentially any situation in which the facts suggest that the accident or damage resulted from the negligence of another is a situation in which res ipsa could apply. For example in if a truck were driving on a road and the road collapsed, the circumstances allow one to draw an inference of liability against the road contractor. Of course, the road contractor could rebut the inference by leading evidence that the accident resulted for another reason; such as the fact that the truck was too heavy for the road.
A common misconception about res ipsa is that the doctrine no longer applies in Canada. Res ipsa is not dead; it is simply referred to now as circumstantial evidence. This was noted by McLachlin J. in Fontaine v. British Columbia:
It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate component in negligence actions. After all, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who should weight, the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the Plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed.
One of the real advantages of pursing a subrogated action, and one that insurance companies can take well earned satisfaction from; is that decisions which make it easier for Plaintiffs to prove their case; are the same decisions which make it easier to recover the money in a subrogated claim. The doctrine or res ipsa loquitor, or inference of negligence drawn from circumstantial evidence, can be a powerful tool for recovering money in a subrogated action.
Please let me know if you have any questions. I would be pleased to provide you with additional information.
| Nigel Trevethan Subrogration Group Chair Harper Grey LLP |
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