Chan Sau Kuen v. Woo Fan
Read the full judgment text of CACV 49/1974 on BabelCite. This Court of Appeal judgment was delivered on 21 February 1975.
2. The learned judge said that there were two possible explanations of the opening of the car door, one that there was a defect in the locking mechanism, "in which event the car was not road-worthy and the Defendant was in the circumstances of this case liable in negligence" and one that a passenger moved the catch lever. The judge found that each of these explanations was equally possible and that in consequence it was equally possible that there was no negligence as that there was negligence.
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CACV000049/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 49 OF 1974 (On appeal from V.C.J. 2552/74) -----------------
----------------- Coram: Briggs, C.J., Huggins & McMullin, JJ. Date of Judgment: 21 February 1975. ----------------- JUDGMENT ----------------- Huggins, J.: I agree that this appeal should be allowed and out of respect for the learned trial judge I will set out my reasons as shortly as I can. 2. The learned judge said that there were two possible explanations of the opening of the car door, one that there was a defect in the locking mechanism, "in which event the car was not road-worthy and the Defendant was in the circumstances of this case liable in negligence" and one that a passenger moved the catch lever. The judge found that each of these explanations was equally possible and that in consequence it was equally possible that there was no negligence as that there was negligence. That being so he found it not proved that the Defendant was negligent and the issue is whether this conclusion can be supported. 3. This seems to me a classic example of a case where res ipsa loquitur. There was, therefore, an initial inference that the Plaintiff's injuries resulted from the Defendant's negligence and it was incumbent on the Defendant to adduce evidence to negative that inference. The learned judge was, in my view, right to conclude that if the door opened as a result of some mechanical defect the Defendant should be held liable. I assume that by saying that the Defendant should be held liable "in the circumstances of this case" the judge meant "in the absence of any evidence that the Defendant had taken all reasonable precautions to ensure that the locking mechanism was maintained in good order". Henderson v. Henry E. Jenkins & Sons 1970 A.C. 282 clearly establishes that a latent defect cannot be relied upon unless it is shown that all reasonable care has been taken to discover any defect. The disagreement both in the Court of Appeal and in the House of Lords in that case was as to the sufficiency of the evidence to show that reasonable care had been taken. In the present case there was no evidence at all of the maintenance of the locking mechanism or of the absence of knowledge of any defect. 4. The decision of the trial judge rested ultimately on the fact that the alternative possible explanation of the cause of the Plaintiff's injuries was "equally consistent" with no negligence on the part of the Defendant as with negligence on his part. The judge thought that that introduced a doubt whether, on a balance of probabilities, the Plaintiff had established negligence. With respect to him I do not think it was enough to displace the inference of negligence arising from the fact that the Plaintiff was injured when walking on the pavement. Indeed, no one appears to have mentioned the existence of such an inference at any stage of the trial. It has been suggested that we ought not to allow the Appellant to rely on the maxim res ipsa loquitur in this Court when it was not pleaded or mentioned in the court below. In my view that suggestion overlooks the very substance of the idea enshrined in the maxim. The Plaintiff pleaded the material facts, that is to say the circumstances of the accident, the damage resulting therefrom and the negligence of the Defendant. The negligence of the Defendant was, prima facie, established by the circumstances of the accident: once those circumstances were proved it was unnecessary to adduce further evidence of want of reasonable care - res ipsa loquitur. If the court below failed to give proper weight to a thing which spoke for itself it was in error and we should intervene. This is not a case where it is suggested that the accident was due to some possible cause which had never been alleged against the Defendant in the pleadings or made against him in the course of the trial as was Esso Petroleum Co., Ltd. v. Southport Corporation 1955 3 All E.R. 864. 5. With the utmost respect I think that in some of the cases there are passages which tend to obscure basic principles and by implication to create new rules applicable in cases where res ipsa loquitur. Langton, J. in the second passage which McMullin, J. has cited from The Kite 1933 P. 154 expressly referred to "the burden of proof" and on p.172 he said:
Although it may be, as Lord Evershed, M.R. said in Moore v. R. Fox & Sons 1956 1 Q.B. 596, 613, that the case was not wrongly decided, the ratio decidendi is open to question. Again, I think it is dangerous to speak as if the maxim res ipsa loquitur raises "a presumption", for that similarly suggests a transfer of the legal burden of proof. I find nothing in the decisions of the House of Lords upon which the Respondent principally relies which compels me to hold that in such cases the ordinary rule applicable in civil cases is displaced, namely that the Plaintiff must adduce evidence establishing the existence of the necessary foundation for the action on a balance of probabilities. That rule can be stated in the form "if the balance of probabilities is level at the end of the day, the plaintiff fails". One always comes back to the principle described by Lord Denning M.R. in Jones v. National Coal Board 1957 2 Q.B. 55, 64 in these words:
The only relevance of the maxim res ipsa loquitur is that, where it applies initially the balance tilts in favour of the Plaintiff. It is not concerned with the legal burden of proof but with the evidential burden, a view which is supported by the timely warning in the judgment of Megaw, L.J. in Lloyde v. West Midland Gas Board 1971 1 W.L.R. 749, 755 and I make no apology for quoting it again in full:
I emphasise the words "on the whole of the evidence" because, as it seems to me, to ask the question whether a particular explanation of an accident is equally consistent with no negligence as with negligence on the part of the defendant may tend to distract the mind from the ultimate issue, whether on the whole of the evidence the plaintiff has established the probability of negligence. The true position appears from the judgment of Lord Donovan in Colvilles Ltd. v. Devine 1969 1 W.E.R. 475, 479 where he said:
6. As the learned judge said, there were in the present case two possible explanations of the opening of the car door. However, the judge continued:
It is here that I part company with him. Strictly, of course, an explanation is either possible or impossible and one explanation cannot be "more possible" than another. However, when I come to the probabilities I do not think that these explanations were equally probable. A door which opens when a car is in motion may open because of a defect in the mechanism but is more likely to open because of some human intervention, while even assuming that it opens because of some defect it is more likely that the defect is one which the exercise of proper care would have revealed than that it is one which the exercise of proper care could not have revealed. The judge rightly concluded that if the door opened as a result of a defect the Defendant should be held liable. That conclusion was, as I have said, consistent with the view of the majority in Henderson v. Henry E. Jenkins & Sons (supra). 7. The second possible explanation was interference with the door by a third party, but the circumstances were such that the Defendant might have been negligent in allowing the third party so to interfere. He did not adduce evidence showing that he had taken all reasonable precautions to prevent interference by his young passengers. I do not agree with the learned judge that the mere fact that there was one child aged "at least 15" in the back with the younger children negatived the possibility of negligence, and we do not know where they were all sitting, what the relationship of each of the children was with the others and to the Defendant or what instructions (if any) the Defendant gave to them. 8. Looking at the evidence as a whole I have no hesitation in saying that in my view it was wrong to find that there was not a greater probability that the Defendant was negligent than that he was not. In my view the Defendant never began to displace the initial inference of negligence and the appeal must succeed. 9. This case is different from Lloyde v. West Midlands Gas Board 1971 1 W.L.R. 749, where a new trial was ordered. There the pleadings were such that it was possible to argue that the defendants had been misled into thinking the claim they had to meet was narrower than that put forward by the plaintiff's counsel in his closing address. There is no room for suggesting that the present Defendant was misled: he was fully apprised of the case which was alleged against him and he failed to negative that case. For my part, the learned judge not having assessed damages in anticipation of a possible appeal, I would enter judgment for the Plaintiff for damages to be assessed by the Registrar, with costs here and below. 21 FEB 1975 Representation: IN THE SPUREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 49 OF 1974 (ON APPEAL FROM V.C.J. 2552/74) -----------------
----------------- Coram: Full Court (Briggs, C.J., Huggins & McMullin JJ.) Date of Judgment: 21 February 1975. ----------------- JUDGMENT ----------------- McMullin, J.: The respondent was the driver of a saloon motor car registration number XX9071. At mid-day on the 14th of November 1971 he was driving in this vehicle along Tai Hang Road when the rear left door flew open suddenly and knocked down the appellant who was walking with a friend upon the pavement adjoining the highway. She suffered a number of injuries and was removed to hospital where she was detained for about nine days for in-patient treatment. Out-patient treatment was continued for three months at the Sai Ying Poon Hospital. 2. The plaintiff (appellant) being a minor at the time of commencement of the proceedings took action by her father in the Victoria District Court claiming damages for personal injuries on the basis of the negligence of the defendant. By his defence the defendant denied negligence and averred that the accident had been caused by one of the passengers in the rear of the vehicle opening the door without his permission. At the trial the plaintiff was herself unable to describe how the accident had occurred and she called a witness, her companion at the time, who alleged that the defendant had actually driven his motor vehicle up on to the pavement and had thus come into collision with the plaintiff. This had not been pleaded in the particulars of negligence alleged in the statement of claim and it was rejected by the trial judge. Mr. Eddis, who appeared for the appellant, did not seek to rely upon that part of the defence evidence. It was therefore common ground that the accident was caused solely by the open door of the motor car projecting suddenly across the pavement and, by invading the pedestrians' preserve, had caught the plaintiff unawares as she walked with her back to the motor car. 3. The defendant told the trial court that he had picked up three children some four minutes before the accident occurred and that they were in the back of the car immediately prior thereto. No evidence was led as to the names or identities of these passengers nor as to the purpose of his picking them up but he told the court that they were three young girls one of whom was six or seven years old, another eleven or twelve years old and the third fifteen or sixteen years old. None of these children was called to give evidence and the only witness for the defence was the defendant himself. Notwithstanding the specific nature of his declared de once all that he could say of the cause of the accident was recorded in the following terms:
Later he said in answer to questions in cross-examination:
4. Pursuant to Section 62(2)(b) of the Evidence Ordinance the plaintiff put in evidence the record of the conviction of the defendant in the magistrate's court on a charge of careless driving arising from the facts recited above. The written summary of facts alleged by the prosecution and read to the defendant upon his plea being taken was also produced in evidence. This summary contained the allegation that the defendant had tried to close the door of the car while it was still moving but at the hearing of the civil action the defendant denied that this part of the summary had ever been read to him and further denied that he had tried to close the door. One of the grounds in the present appeal was that the trial judge should not have permitted him to alter his evidence in view of his plea of guilty upon that stated body of fact. The trial judge however had accepted the defendant's explanation of his plea of guilty and we can see no reason to say that he was wrong in doing so. Nothing further need therefore be said concerning the substance of the first and second grounds appearing upon the supplementary notice of appeal. 5. The case appears to have been argued by the solicitor for the plaintiff on the basis that the facts disclosed negligence in that, if the door had been suddenly opened by one of the children, the children were in the respondent's care and he had been negligent in not sufficiently supervising their behaviour. Although he made no specific finding on the point it would appear that the learned District Judge accepted the evidence of the defendant to the effect that the door had been locked before the accident since he found that there were only two possible explanations of the occurrence. One was that the mechanism of the door was in itself faulty and that the door had sprung open of its own accord; the other was that suggested by the defendant himself, that one of the children had inadvertently or in mischievous play unfastened the door and permitted it to open. The judge went on to say:
He declined to find that the defendant had been negligent in his supervision of the children since, in his view, one of them at least was quite old enough to have been regarded as being in charge of the other two. Since he concluded that it was equally possible that the accident had occurred through the action of one of the children as that it had occurred through negligent maintenance by the defendant of his own motor car, he found that the plaintiff had failed to establish her claim and her claim was therefore dismissed. 6. Although this appeal has proceeded upon the contention that the accident was one which must be categorized under the familiar rubric res ipsa loquitur it is a fact that nowhere in the pleadings nor upon the notes of evidence and argument nor yet in the memorandum of appeal itself is there any indication that the plaintiff's case was presented and pursued on the basis that the facts spoke so clearly for themselves in witness of the defendant's negligence that, in the absence of an acceptable explanation by the defendant excluding negligence, the plaintiff must succeed. Mr. Dennis Chang for the defendant made it, indeed, his principal ground of objection that since the case had neither been pleaded nor argued nor presented upon that basis at any time up to the hearing of the appeal that it would be unjust for this court to have regard to that maxim and its implications in disposing of the appeal. He went on however to argue the merits of his client's case in relation thereto. The fact that he felt compelled to do so, however, shows the difficulty which he himself encountered in proposing this undoubted peculiarity in the proceedings as an effective answer in limine to the appeal. For it was his contention that there were two conflicting lines of decided authority illustrating the application of the maxim and that the trial judge had taken a course which clearly favoured one of those two lines and that we should not now permit the appellant to challenge the validity of that authority when she had not done so in the first instance at the trial. But if that was how the trial judge approached the evidence it is difficult to see how it can be said that, despite the want of pleading and specific argument, the implications of the maxim were not present to his mind in coming to his decision. If that be implicit in the judgment then, notwithstanding the silence in the grounds of appeal, we could scarcely examine the propriety of the decision without a critical consideration of at least that body of the decided authority which he is supposed to have favoured. 7. Mr. Eddis conceded that it would have been better if the maxim had been specifically pleaded and explicitly canvassed in the argument at the trial but he says that in any event the basis of the maxim is evidentiary and its implications may be examined by this court in evaluating the manner in which the evidence was dealt with at the trial. He adds that in effect it was canvassed even although the latin formula itself was never recited. I think there is much justice in the observation of Lord Justice Megaw L.J. in Lloyde v. West Midland Gas Board(1) where at page 755 he says:
Regarded in that light there seems no reason why an appellate court should be precluded from considering arguments based upon the implications of that maxim in any case in which the facts might be fairly argued to fall within it. Moreover this was the course taken by the Court of Appeal in England in Lloyde's case(1) where, although res ipsa had been specifically pleaded it was not argued and at the trial the case proceeded upon a wholly different basis. Before the appellate court it was argued that nevertheless the maxim could apply to the facts and the court attended to that argument and, having considered the implications of the maxim on the facts before it, ordered a re-trial so that the evidence could be assessed with that principle in view. 8. Before proceeding to the consideration of the authorities it may be said at once that the facts presented to the court of trial in the present case did indeed establish what has been referred to in some of the decided cases as a "res ipsa loquitur situation". The door of a car, which was at the relevant time under the control of the defendant, sprang open and injured a passer-by. If no evidence at all had been adduced on behalf of the defendant the plaintiff must have succeeded because on these bare facts the only proper inference on balance of probability would be that the cause of the accident, whatever it may have been, involved a failure by the defendant to take due care for the plaintiff's safety. In those circumstances it was for the defendant to show how such a thing could have happened without negligence on his part and that indeed is what the defendant by his pleading professed himself prepared to do. In the event he was unable to produce any positive evidence to that effect and he and his opponent, and indeed everybody concerned including the trial judge, were left confronted with certain possibilities each of which might have provided an explanation. One of those alternative possibilities was that the children had caused the accident by opening the door. 9. Mr. Chang argued that the judge had come to the right conclusion by following a line of authorities which commences with The Kite(2). In that case Langton J., confronted with a res ipsa loquitur situation went on to consider what the defendant must do where that situation arises. He said:
He went on to adopt an opinion expressed by Lord Dunedin in his dissenting judgment in Ballard v. North British Railway Co.(3). What that learned judge had said was this:
Later on in the same judgment Lord Dunedin set out the celebrated passage from the judgment of Erle C.J. in The Scott v. The London & St. Katherine Docks Co.(4) which in later cases has so often been resorted to as an authoritative source of exegesis on the topic and which is in these terms:
Having recited that passage Lord Dunedin continues:
Commenting upon these passages Langton J. said:
10. I have set out these passages in some detail because it seems to me that it is here if anywhere that one may find support for the contention that the courts, including the highest courts, have not always spoken with a unified voice as to the nature and limitations of the evidentiary task of a defendant confronted with a res ipsa loquitur situation. Certainly Mr. Chang sought to enlist the authority of the House of Lords in Colvilles Ltd. v. Devine(5) as supporting what had been said in The Kite(2) by Langton J. who had based himself upon Lord Dunedin who had based himself upon Erle C.J. although in fact it is only the passage just now cited from the judgment of the latter which affords an express syntopical link between the three cases. In Colvilles case(5) the Court of Appeal was considering an accident which had occurred when an oxygen pipe exploded and caused a panic in which some workmen were injured. The defendants could only suggest that the explosion had been caused by the friction of certain particles of matter moving with the oxygen stream through the pipe. The Court considered that the mere occurrence of the explosion, a wholly untoward event in the factory concerned, of itself spoke of negligence in the appellant company. Lord Upjohn at page 479 said:
The court found that the appellants' explanation was the most plausible one in the circumstances but went on to find that that explanation did not exculpate them since they had failed to prove in addition that certain filters for the oxygen pipe, which were in use, had been inspected and found to be reasonably efficient for their purpose. I think however that it was Lord Upjohn's reference to the need for the appellants to show that the accident was just as consistent with their having exercised diligence as with their having been negligent which persuaded Mr. Chang that he had the support of the House of Lords behind the principles adumbrated by Langton J. in The Kite(2). I do not think that is so. What Langton J., following Lord Dunedin, appears to say is that if a defendant can merely suggest any manner in which the accident might have happened without his being negligent then, although there may be other equal possibilities some of which would involve his negligence, he has done sufficient to shift back to the plaintiff the burden of showing that he was in fact negligent. He does not in other words have to prove that probably the accident happened in the way which he suggests. In Colvilles case(5) however the appellants actually did prove that the most likely cause of the accident was the presence of particles in the pipe and so far were the members of the court from saying that the appellants had no burden to prove that the accident had happened without negligence on their part that their Lordships actually went on to find against them because, although proving so much, they had failed to prove that they were blameless in relation to the very factor which they invoked to explain the accident. Their Lordships certainly did not say that it was sufficient for the defendants to advance a possibly innocent explanation or several possible explanations one of which was consistent with diligence in order to escape liability. In saying that they must show that the accident was just as consistent with their diligence as with their negligence clearly what was meant was that, once the plaintiff had shown that the accident was of such a kind that res ipsa loquitur fairly described it that, without more, was proof of negligence and the defendants must thereafter proved facts which could account for the accident and also leave them free from negligence. Such an explanation if accepted by the trial court as a reasonable account of the way in which the accident had happened would restore the balance of proof to a neutral position but only in the sense that the court would have an explanation where formerly there was none. It would still be for the court to decide how this purported discharge of the evidential burden by the defendant affected the legal burden of proof which lay upon the plaintiff. 11. That, again, is what I understand to be the meaning of the passage from the judgment of Singleton, L.J. in Southport Corporation v. Esso Petroleum Co. Ltd.(6) at page 193 upon which Mr. Chang also relied in maintaining the authority of the decision in The Kite(2). Having quoted the same passage from the judgment of Erle, C.J. to which reference has been made above the learned judge goes on to say:
With all respect, I do not think the matter was thus very happily expressed because, while acknowledging that the burden of proof remains with the plaintiff throughout to prove his case, it suggests that any innocent explanation which is a reasonable possibility is sufficient to discharge the evidential burden on the defendant. Nevertheless I do not see that it can sensibly bear any other meaning than that which I have ascribed to the language of Lord Upjohn in Colvilles case(5). Read strictly as they stand the words "equally consistent with negligence or no negligence" would otherwise make no sense at all. Once an explanation has been given then either it is an explanation which is consistent with negligence or it is not so consistent. What must be intended, I think, is that when the defendants' explanation has been set over against the fact of the accident standing upon its own then, at that point, because an explanation has been advanced to account for what was previously inexplicable (save in terms of the defendants' equally inexplicable negligence) the balance may, provisionally, be regarded as having swung level. But it remains level only until the point of judgment for then the judge must say whether the explanation of the defendant not only reasonably accounts for the causation of the event but does so in such a way as to leave the defendant blameless. If it does both of those things the scales tip in favour of the defendant; if not, they move again towards the plaintiff. There can be no question of a final equilibrium for that would imply a mere failure to come to judgment and a failure, moreover, based upon what would seem to be a false premiss. 12. When it is said that the thing speaks for itself it cannot, I think, be supposed to speak of anything save the defendant's negligence. I take that to mean that on a bare showing of the fact of the accident there is raised, without more, a strong probability that the defendant was negligent in some way: not a certainty perhaps, but certainly more than a possibility. If, against this prima facie probability something is said by way of rebuttal the judge in the end has to ask himself two questions in relation to it: (a) Is this a likely (i.e. probable) explanation to those facts? If he decides the first question in favour of the defendant there is as yet no collision between that finding and the initial presumptive probability for that did not relate to the mechanics of the accident but only to the fact of its occurrence. The explanation, in other words, could not of itself remove the assumed probability of negligence. That will not happen until the second question is broached and then the balance does not begin to move to the defendant's side unless the explanation carries with it a probability of its own viz.: the probability that the facts disclosed exclude negligence. If the court concludes that the explanation remains at the level of possibility in that respect then, clearly the presumption would not have been dislodged and the balance would return firmly to the side of the plaintiff. If, on the other hand, the defendant's account is not only a probable explanation of the "how" of the accident but also an explanation which probably exculpates the defendant the balance does not stay level it moves to the defendant. In either case it is the act of judgment which supplies the decisive weight. 13. The difficulty raised by the maxim is that it does suggest almost inevitably this notion of a weighing scales. That image, helpful though it is as an aid to the imagination, has the danger, latent in all metaphors, that it seeks to resolve a complication of concepts with a simple concrete image. At the root of that difficulty lies the question whether or not the situation to which the maxim is said to apply is truly one in which, on the bare showing of the fact, a presumption arises that the defendant was negligent. I believe it to be the consensus of the English authorities that such a presumption does arise in the sense that if nothing at all by way of explanation of the undisputed fact of the accident were put forward by the defence, or, if nothing of the sort emerged from the evidence as a whole, then in such a case, the court must - not might - give judgment for the plaintiff. No doubt it is a presumption of a special kind: Denning, L.J. in Southport Corporation v. Esso Petroleum Co. Ltd.(6) calls it a "provisional presumption". Perhaps that best describes its nature for it preserves the delicate distinction between the "evidential burden" and the "legal burden" of proof in civil cases. 14. I am aware that this is a view which is not universally held. in Common Law jurisdictions. The courts in Canada, for example, in recent years would seem to have taken a different line. Indeed, in Temple v. Terrace Transfer Ltd.(7) Tysoe J.A. not only refused to allow that an outright presumption shelters under the maxim but criticised the English courts for what he regarded as a modern tendency to place too heavy a burden on the defendant in res ipsa loquitur cases and, into the bargain, expressly disapproved the decision of the Court of Appeal in the English cases (cited infra) upon which the appellant relies in the present case. If, however, it is right to see a presumption rooted in the maxim and, if as I have suggested, it is a presumption of the probability of negligence that probability must remain paramount and effective until dislodged by a stronger probability which is to say that the initial probability in the plaintiff's favour is in the end seen to have been a possibility only from the outset. The adherents of the opposing view fall, as it seems to me, into the error of supposing that if something which is less than a probability (i.e. a possibility) is raised by the defence than that in some manner causes the initial presumptive probability itself to be reduced to the status of a possibility. I can find no warrant in logic or in authority for that view. If I am thus far correct it need hardly be added that, a fortiori, the presumption is not dislodged in any case where the defendant is able to do no more than propose several possible causes for the accident one or more of which would leave him free of negligence. Once the defendant has given his story and if it is an acceptable explanation, and if it does not itself connote some further element of prima facie negligence then, of course, it may be accepted unless the plaintiff can put the matter further by advancing into the field of positive proof from his initial position of rest in the presumption. 15. When we turn to consider the cases upon which Mr. Eddis relies and which Mr. Chang regards as constituting the opposing line of authorities I think it will be seen that the suggestion that The Kite(2) constitutes the foundation of that opposing line has less substance than might at first sight appear. Certainly the judgment of Langton J. in that case was expounded and explained in a later decision in a sense which would leave it in alignment with, or at least not in conflict with those authorities. In Moore v. R. Fox & Sons(8), one of the two authorities upon which Mr. Eddis principally relies, in commenting upon the very passage to which I have referred from the judgment of Langton J. in The Kite(2), Evershed M.R. has this to say (page 613 of the judgment):
The Master of the Rolls was there referring to the decisions in Barkway v. South Wales Transport Co.(9) at page 471; and in Esso Petroleum Ltd . v. Southport Corporation(10) at page 92, to the former of which I will return a little later. The Master of the Rolls went on to say:
Immediately after that the learned Master of the Rolls went on to consider what had been said by Lord Dunedin in the Ballard case(3) (in the passage cited earlier). He noted, firstly, that Lord Dunedin's judgment was in any event a minority judgment, and that moreover in a later case one of his, Lord Dunedin's, eminent colleagues on the Scottish Bench (Lord Carmont in O'Hara v. Central S.M.T. Co. Ltd.(11)) had ventured the opinion that the views of Lord Dunedin on res ipsa loquitur were not in harmony with those of the majority. After a close and acute analysis of Lord Dunedin's words Asquith L.J. came to the conclusion that:
16. I doubt therefore whether it can in truth be said that there is in the English cases an opposing line of authorities over against the authorities represented by Moore v. Fox(8) and Henderson v. Henry E. Jenkins(12), the latter being the other decision principally relied upon by Mr. Eddis in the present case. Such discordance as there is between these several authorities I would be content, with respect, to resolve in the language used by the Master of the Rolls in Moore v. R. Fox & Sons(8). 17. I think that the dicta of Asquith L.J. which attracted the approval of Lord Evershed in Moore v. Fox(8) neatly disposes of the problem posed by the learned trial judge in the present case but resolves that problem in the opposite sense. Having accepted the defendant's evidence that he had locked the door of the car the judge found himself confronted with only two remaining possibilities one of those (that the children had opened the door) he regarded as being exculpatory and the other (mechanical failure of the door) as inculpatory. He found both equally probable and in dismissing the claim he was following, according to Mr. Chang, the line taken by Langton J. in The Kite(2). In disapproving this interpretation and in advancing the contrary proposition with great firmness the learned Master of the Rolls in Moore v. R. Fox & Sons(8) invoked the passage from the decision in Barkway v. South Wales Transport Co.(9) which to my mind clearly exposes the fallacy of the trial judge's approach in the present case. In Barkway's case(9) the court was concerned with the results of an accident in which an omnibus left the road and fell down an embankment. Asquith L.J. took the view that this was a situation which entitled the plaintiff to say res ipsa loquitur and that it was for the defendants thereafter to rebut the presumption of negligence. He went on:
I adopt that reasoning and it disposes of the appeal. The plaintiff started the case with the scales depressed in her favour; the learned District Judge in effect placed the appellant's explanation on the other side of the balance and then added an equal weight in the plaintiff's favour by proposing the alternative explanation as equally probable. Thus the presumption was not dislodged and he ought to have found that the prima facie case of negligence had not been disproved. 18. The issue of negligence was argued wholly on the basis that the defendant was responsible for the putative conduct of the children, the issue of his responsibility for the condition of the motor car in particular of the door was never canvassed. I have considered whether the fairest course might not be to remit the case for re-trial in order that the defendant might be given an opportunity of dealing with the latter issue which was one raised by the judge himself after the conclusion of the evidence. However even if that issue were resolved in the defendant's favour I think it is very unlikely that the defendant would be able to show that he was under no obligation to supervise the behaviour of the children an issue which the trial judge was prepared to resolve in his favour on what was, with respect, a very inadequate evidential basis. The result is that the appeal must be allowed and judgment entered for the plaintiff. Damages to be assessed by the Registrar. Representation: (1) (1971) 1 W.L.R. 755. (2) (1933) Law Reports Probate 154. (3) (1923) S.C. (H.L.) 43, 54. (4) (1865) 3 H. & C. 596. (5) (1969) 1 W.L.R. 475. (6) (1954) 1 Q.B.D. 193. (7) (1966) 52 D.L.R. 631. (8) (1956) 1 Q.B.D. 596. (9) (1948) 2 All E.R. 460. (10) (1956) 2 W.L.R. 81. (11) (1941) S.C. 363. (12) (1917) A.C. 282. |