Accident is such that in the ordinary course of

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2. Accident is such that in the ordinary course of things it does not happen if those who have management use reasonable care- it affords reasonable evidence, in the absence of a contrary explanation that accident arose from want of reasonable care. Accident was caused by negligence. o Drawing an inference because that kind of thing doesn’t usually happen. If res ipsa loc does apply: Davies : ‘if it does apply, it doesn’t change bop, p must still prove the case. But it des provide some evidence, then up to jury if they accept the evidence. Prima facie case of ne. legal burden doesn’t change but evidential burden moves to def, def gets a chance to Torts Lecture Notes 17
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explain why it occurred, reasonable explanation. If d can give a reasonable explanation, then p can no longer use Res ipsa loquitur and evidential burden moves back and forth arguing, evidential burden moving back and forwards, p and d responding to evidence but the legal onus doesn’t move. When P is using Res ipsa loquitur, d is advised to provide their own evidence contrary to the inference that’s being asked to be drawn. If d cannot do it (come up with contrary explanation), p can win if jury/judge decides to go with the inference, that’s the case, even though they’re not proving what actually happened, what d actually did wrong? If d can produce another explanation then up to jury whether going for it. If d’s evidence is no more probable than the p’s then d must win. P must get over the line. If d can do more and actually prove what happened, they will win, and will not be held liable. o Schellenberg v Tunnel Holdings Pty Ltd (2000) (CB 283) (HC Case): P worked for d (workplace injury) and p, on this particular day, was using a hose which had compressed air traveling through it to clean something (very high pressure). As they were holding it, the hose separated from the coupling, flew around, it hit him and seriously injured him. He sued his employer for negligence. He said: the fact the hose came away from the cupling (fitting) proves negligence/ is evidence of negligence. Doc owed by employer to employee and reasonably foreseeable that if something is wrong with the hose then person using it can be seriously injured. But had they failed to behave reasonably, the hose came lose. How could it have come lose? Is it proof of negligent? Does it speak for itself? How could the hose have come apart? Pressure too high? (should they think of that when providing the hose?) But this could be totally unexpected. Was all together when he found it. Could be a defect in the hose or cupling, would d be negligent still? If it’s an undetectable defect then employer would not negligent, but if it was a detectable defect then the employer would be negligent, because he could’ve checked it. Coming up with different alternatives how this accident could’ve occurred, that’s what the court did too. Court held : Res ipsa loquitur can’t be used here. No evidence that the cause of injury was due to the defendant’s negligence. Cannot argue this showed negligent because does not occur only if there’s negligence, can occur other ways.
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