Patrick Merriman (appellant) v Greenhills Foods Ltd (respondent) and Joe Carey trading as Carey Trucks Repairs (third party).

Evidence Onus of proof Road traffic accident No explanation j6r accident Doctrine of Res Ipsa Loquitur Circumstances where doctrine operates so as to shift burden of proof on to defendant to explain accident.

The Supreme Court (Mr Justice O'Flaherty, Mr Justice Blayney, and Mr Justice Murphy) judgments delivered 28 June 1996.

WHERE there is reasonable evidence of negligence and an accident is such that it would not have occurred in the ordinary course, the doctrine of Res Ipsa Loquitur operates so as to shift the onus of proof on to a defendant to show that he has not been negligent or to satisfy a court that he has taken all reasonable care.

The Supreme Court (Mr Justice Murphy dissenting) so held in allowing an appeal against the dismissal of an action in damages for personal injuries and directing a new trial.

Maurice Gaffney SC, Muireann O'Briain SC and Eamon Murray BL for the appellant John Hedigan SC and Vincent Foley BL for the respondent John Quirke SC and Aedan McGovern BL for the third party.

MR JUSTICE O'FLAHERTY agreed with the judgment delivered by Mr Justice Blayney.

MR JUSTICE BLAYNEY said that the appellant was appealing the dismissal of his action for damages for personal injuries sustained in a road traffic accident. The accident occurred when the appellant as an employee of the respondent, was driving one of the respondent's trucks between Ballybofey and Donegal Town. The appellant, on hearing a metallic noise, got out of the vehicle and examined it on all four sides but could find nothing untoward.

He drove on and after about five miles the truck turned suddenly off the road and into an adjoining bog.

On the foregoing facts the trial judge had dismissed the claim on the basis that there was no evidence of a defect in the truck but that the accident had occurred following a fracture to the leaf spring of the truck as a result of a single incident. The trial judge further stated that he was satisfied that the truck was maintained to a reasonable standard and that the principle of Res Ipsa Loquitur did not apply in the circumstances.

Mr Justice Blayney said that the appellant appealed that decision on the ground, inter alia, that the trial judge was mistaken in holding that the doctrine of Res Ipso Loquitur did not apply. The appellant submitted that the doctrine did apply because the truck was under the management of the respondent and the accident was one that would not have occurred in the ordinary course of events had proper care been taken.

For the respondent it was submitted that the doctrine did not apply as an explanation as to the cause of the accident had been supplied by an expert witness who had said that it was the result of the breaking of the top leaf of a spring. Further it was submitted that as there was no explanation of why the leaf fractured it would be unfair to ask the respondent to explain the inexplicable.

Mr Justice Blayney said that the trial judge had found that there had been no negligence on the part of the appellant and that the accident was caused by the breaking of the top leaf of the spring. The respondent had not offered any explanation as to why this had happened and, in the view of Mr Justice Blayney, this case then came within the principle established in Scott v London and St Catherine Docks Co (1865) 3 HLC 596 to the effect that where there is reasonable evidence of negligence and the accident is such that it would not have occurred in the ordinary course then, in the absence of explanation by a defendant, that amounts to reasonable evidence that the accident occurred from want of care.

In the view of Mr Justice Blayney, any explanation offered by the respondent for the accident did not go far enough. He said that in the instant case the facts bearing on the cause of the accident and on the care exercised by the respondent were unknown to the appellant and were or ought to be known to the respondent. Mr Justice Blayney said that he was satisfied that in order that justice be done this was a case where the doctrine of Res Ipsa Loquitur ought to apply so as to put the onus of proof on the respondent to show that they were not negligent.

Mr Justice Blayney said that such a course did not amount to asking the respondent to explain the inexplicable. If they were unable to provide an explanation it would be open to them to show that they had taken all reasonable care in maintaining the truck and could not, therefore, be held liable in negligence. In those circumstances, no injustice could result in requiring the respondent to provide an explanation.

Furthermore, Mr Justice Blayney noted that the trial judge had, at the conclusion of the appellant's evidence, refused the respondent's application for a direction but had said that the respondent could confine its evidence to the issue of whether the respondent had failed to replace a pin onto the truck as a failure so to do was, in the trial judge's opinion, the only situation in which the respondent may have been negligent. Mr Justice Blayney said that the trial judge had erred in principle in so ruling because, at that stage, there was still no explanation why the leaf of the spring had fractured. The correct course for the trial judge to have adopted would have been to hold that the doctrine of Res Ipsa Loquitur did apply, thereby shifting the onus onto the respondent to show that it had not been negligent or to satisfy the court that it had taken all reasonable care to provide the appellant with a truck that was safe.

Accordingly, Mr Justice Blayney allowed the appeal and directed a new trial.

MR JUSTICE MURPHY, in a dissenting judgment and having outlined the facts of the case, said that the shift in the onus of proof effected by the doctrine of Res Ipsa Loquitur operates when three events coincide (i) proof of the happening of an unexplained occurrence (ii) the occurrence being one which would not have happened in the ordinary course of things without the negligence of someone other than a plaintiff (iii) the circumstances pointing to the negligence being that of defendant rather than any other person usually because the instrument causing the accident is at the time under the management and control of that defendant.

Mr Justice Murphy then referred to a dictum from Barkway v South Wales Transport [1950] 1 All ER 392 which stated that if the cause of the accident is proved, the maxim of res ipsa loquitur is of little moment. In his view, in the present case, the cause of the accident was steering failure at a time when the truck was under the direct and immediate control of the appellant. This made the application of the doctrine uncertain in this case.

Furthermore, Mr Justice Murphy identified another problem. He said that the evidence available to the trial judge was sufficient for him to determine the case and he had done so on the totality of that evidence and not on the failure of any party to discharge the onus of proof which may have fallen on him in the course of the proceedings. All of the findings made by the trial judge in his judgment were fully supported by the evidence before him and, accordingly, there was no basis upon which those findings might be re-opened by an appellate court.

In those circumstances, Mr Justice Murphy was of the view that the trial judge had held the principle of Res Ipsa Loquitur did not apply and was exhausted only once he had satisfied himself that there was sufficient evidence to allow him to adjudicate upon the issue of negligence.

Solicitors Brian Matthews & Co(Dublin) for the appellant Stephen MacKenzie & Co (Dublin) for the respondent Nuala MacKenzie (Kill) for the third party.