Cannot argue this showed negligent because does not

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negligence. Cannot argue this showed negligent because does not occur only if there’s negligence, can occur other ways. o Mummery v Irvings Pty Ltd (1956): Made more complicated because the Res (the thing/the event that you’re saying doesn’t usually occur unless someone’s negligent) is something that you need expertise to know it’s correct. Eg. toes in tobacco don’t need an expert in tobacco production to know that shouldn’t occur, however sometimes it’s a fact situation where ordinary people cannot tell whether that’s normal or not. In that situation, as always, the court will get experts to come in to say whether It’s something that normal happens or not. The reason they lost in this situation was because the solicitors didn’t get experts in which caused a problem. P wanted to buy some timber so wandered into the d’s premises, which was a big shed, to buy some timber. Inside the shed were the workers who were cutting up timber and customers were allowed to just walk in. As P walked towards one of the workers, he was hit in the eye by a piece of wood and blinded. It seems the piece of wood was thrown up by a saw. One of the questions that came up in the case was: can you infer negligence from the fact the wood was thrown up by the saw? I.e. Does Res ipsa loquitur apply? On the use of Res ipsa loquitur generally, court says: all Res ipsa loquitur is, is a method to describe how you can make out a negligence case, that’s all it is. Once a party, usually d, produces evidence on how the accident occurred, then you can’t use principle. It is then, do you believe the evidence or not. Essential that there be no explanation on how the acc occurred and must be one that doesn’t usually occur unless there’s negligence . On these facts, if the p had just said he walked into building and was hit in the face by a piece of wood, that’s something that shouldn’t ordinarily occur unless people are being negligent. However, this case was further, he was hit in the face by a piece of wood that came from a saw, so must consider is it negligent for wood to be flying out of a saw? Court said: No, don’t know, not experts in saws. And d hasn’t given any expert testimony. Don’t know if it unusual, don’t know if it’s only something that happens if your careless, so they couldn’t infer negligence . Res ipsa loquitur , torts law has developed to try and help plaintiffs prove a case, prove a breach of negligence. It is not an element of the tort. Torts Lecture Notes 18
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3. CAUSATION: CAUSATION IN FACT Plaintiff needs to prove the breach by defendant caused or materially contributed to the plaintiff’s injury on the balance of probabilities - now codified in s 52 Wrongs Act (P must prove causation) o Wrongs Act 1958 (Vic) s52. Burden of proof: In determining liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.
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