Res ipsa loquitur the thing speaks for itself prima

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Res ipsa loquitur – The thing speaks for itself. Prima facie case of negligence is made out on proof of ‘the thing itself’. Evidentiary onus, not onus of proof. In certain circumstances, the mere fact that an accident occurred may justify the inference that it was caused by negligence on the part of the defendant. Res ipsa is designed to assist P with the burden of proof. If res ipsa is made out then duty and breach need not be made out. When it is know how the accident happened res ipsa does not apply. EG: Walking past a warehouse and a barrel hits you on the head. Inference is that D is negligent. When does res ipsa loquitur apply? 1. The accident was of a type which is unlikely to occur without someone being negligent a. It must be possible for an ordinary person to determine whether the accident would not normally occur if reasonable care was taken ( i.e if expert evidence is required then res ipsa cannot be used) 19
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b. It is enough if negligence is the most likely cause of accidents of that type ( negligence needed not be the only likely cause) 2. The accident was such that it is the defendant who is likely to have been negligent; and Test ( Per Mummery and Schellenberg) : a. Did the defendant have exclusive control over the object or events which caused the accident? Schellenberg per Kirby: Employee’s held to have exclusive control. Gleeson expressed doubt over this proposition. b. It is not enough if someone else is just as likely as the defendant to have been responsible ( if 2 parties are equally likely then res ipsa will not apply) 3. The specific cause of the accident has not been established a. Matter of characterisation of the act is important. Exceptions and Qualifications Even if res is made out, it simply permits does not obligate the court to make an inference of breach. Res is an evidentiary doctrine not a judicial one and therefore not binding on the court per Mummery. Difficulties with characterization of actions Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 (CB 288) Facts : P employed to use a gas operated grinder. The hose became uncoupled and hit him in the back. P sued his employer. 1. Kirby J: this is not an accident of a type which is unlikely to occur without someone being negligent 2. Gleeson CJ & McHugh J: the cause of the accident is known (and the plaintiff has not shown it was a result of negligence by the defendant) 20
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Element 3 - CAUSATION CAUSATION IN FACT Current Causation Test March v Stramare (1991) 65 ALJR 335 (CB 298) 1. The “but for” test has an important role to play, but is not the exclusive test of factual causation 2. Commonsense, as well as value judgments and policy considerations, are also relevant Relevant Legislation, Cases and Useful Tests Wrongs Act 1958 (Vic) s 51(1) - A determination that negligence caused particular harm comprises the following elements: D’s negligence was a necessary condition of the occurrence of the harm; and ( Factual Cau.) it is appropriate for the scope of D’s liability to extend to that harm ( Scope of Liability) Causation is a matter of fact not law.
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