Nothing but the trout: Frank McNally on the colourful origins of the legal principle res ipsa loquitur

Whenever the Latin phrase res ipsa loquitur is used in law or politics, an earthier English expression often follows, referring to “a trout in the milk”. The former describes circumstances that seem to speak for themselves. And so does the latter, if more colourfully.

It’s a quotation from 1850, by Henry David Thoreau, whose context was a practice whereby unscrupulous American dairymen, en route to market, occasionally topped up their churns from a river. Hence his conclusion: “Some circumstantial evidence is very strong, as when you find a trout in the milk.”

This may or may not be related to an old Irish phrase, “breac sa bhainne”, although to the best of my knowledge that applied not so much to incriminating situations as to ones where something was simply ruined.

A fly in the ointment might be its English equivalent. In any case, the Thoreau trout is the one popular with lawyers, lending folkloric weight to the facts they claim speak for themselves in rendering a case open and shut.

General selection – Frank McNally on national stereotypes, Greek (and table quiz) heroes, and a stamp of greatness

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Hard Border – Frank McNally on a visit to the Korean Demilitarised Zone

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Transmigration of Seoul – Frank McNally on a long-awaited trip to South Korea

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Thanks to a historic English lawsuit of 160 years ago this summer, however, the legal principle of res ipsa loquitur rests on a harder and heavier piece of evidence than fish.

It started with a painful event in July 1863 when one Joseph Byrne, a cork manufacturer of presumably Irish extraction, was walking along Scotland Road in Liverpool, near the docks. Just as he passed the premises of Mr Abel Boadle, a barrel of flour fell on him from a first-floor storeroom, leaving him – as was generally agreed by witnesses – “senseless”.

He recovered his senses in time but was first laid up for two weeks with chest, back, neck and foot injuries, and was afterwards permanently lame. In the meantime, he sued the flour man for negligence.

Nobody disputed that the barrel had fallen from Boadle’s loft and hit the plaintiff. But no witness, least of all Byrne, could say what had happened to cause the barrel’s fall.

So the defence argued – successfully at first – that not a “scintilla” of evidence had been produced to show that the flour man was to blame. Unless, the lawyer added unwisely, “the occurrence is of itself evidence of negligence”.

This proved, as the Stanford Law Review has put it, to be “one of the great set-up lines” of legal history. For whatever about being self-raising, flour (in barrels, anyway) could not be self-lowering under the law. Or so an appeals court judge ruled, in a more roundabout fashion, viz: “A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous.

“The present case upon the evidence comes to this: a man is passing in front of the premises of a dealer in flour, and there falls down upon him a barrel of flour. I think it apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had the control of it; and in my opinion the fact of its falling is prima facie evidence of negligence, and the plaintiff who was injured by it is not bound to show that it could not fall without negligence, but if there are any facts inconsistent with negligence it is for the defendant to prove them.”

Although the ruling lacked the pithiness of Thoreau, it marked the latter-day adoption of the related legal principle. As the judge summed up: “There are certain cases of which it may be said res ipsa loquitur, and this seems to be one.”

The Latin phrase had been around since at least 52BC, when Cicero used it in defence of his friend Titus Annius Milo. But that was a murder charge and Milo was found guilty anyway. The 1863 case enshrined the principle in modern law.

My assumption that the Joseph Byrne who unwittingly made legal history was Irish also rests on it, after a fashion. Byrne’s surname aside, Scotland Road was a famously Irish part of Liverpool then, later represented in parliament by the politician and journalist T P O’Connor, known popularly as “Tay Pay” because of the way he pronounced his initials.

Born in Westmeath, O’Connor was first elected for Galway but in 1885 stood simultaneously there and in “Liverpool Scotland” as it was known. Winning both, he took his seat in the latter and represented it, as an Irish nationalist, for 45 years. A plaque in London’s Fleet Street says of O’Connor: “His pen could lay bare the bones of a book or the soul of a statesman in a few vivid lines.”

Speaking of vivid lines, and getting back to the trout in the milk, there were no fish involved in the 1863 court case. But just for the record, the man who handed down the landmark ruling was a Judge Pollock.