In recent years, the maxim of res ipsa loquitur has fallen out of fashion. Whether this reflects the more robust procedural rules governing disclosure (meaning that the cause of an accident can normally be ascertained) or the modern judicial dislike of distracting and potentially misleading latin epithets, is unclear. The low-point for the doctrine probably came in the judgment of Lord Justice May in Fryer v Pearson (2000) Unreported (CA) where he remarked:
"It is not, I hope, just affectation which leads to me to believe that we should stop using unhelpful Latin phrases. It troubles me that we still tend to fall into the habit of talking about maxims or doctrines which go under labels in Latin whose meaning does not express a defined principle, and which those for whose benefit we operate will probably not understand".
For those of us who take an unhealthy interest in matters of this sort, the recent judgment of the Court of Appeal in Smith v Fordyce (2013) EWCA Civ 320 therefore comes as a welcome reminder of the potential relevance and use of the maxim, even in the modern age. The judgment is also helpful in providing a bite-sized, straightforward and eminently quotable summary of exactly how the principle operates in practice.
In Smith the Claimant was a passenger in a car driven by the Defendant. The car skidded, the Defendant lost control and he collided with a wall. The Claimant suffered a severe brain injury. The Defendant's case was that he was travelling at a reasonable speed and had skidded on black that he had had no reason to anticipate. The judge at first instance accepted his explanation and the Claimant appealed, arguing that the fact of the skid gave rise to a presumption of negligence which the Defendant had failed to rebut. In particular, the Claimant argued that:
"if a driver loses control of a vehicle, the doctrine of res ipsa loquitur applies, and that it is not sufficient for such a person to show merely that the cause of loss of control was a skid, because a skid is itself a "neutral event", consistent equally with negligence or due diligence. Accordingly the burden remains on the driven in such circumstances to prove that he exercised due diligence"
The Court of Appeal rejected the appeal and upheld the judge's decision to dismiss the claim. The Defendant had put forward sufficient evidence to rebut any inference of negligence on his part and the judge was entitled to accept that evidence. Although one of the police officers who had attended the scene of the crash expressed the view that a careful driver would have been capable of negotiating the stretch of road safely, the Court shrewdly observed that :
"To say that a person who suffers an accident because of the dangerous conditions of the road was therefore axiomatically careless is another (thing). It does not follow as a matter of logic or human experience. If there is invisible ice on a pavement, the fact that only one pedestrian among a number had the misfortune to slip on it would not mean that the pedestrian who slipped was therefore to blame”.
Lord Justice Toulson went on to explain the operation, and limits, of our favourite Latin maxim:
"The doctrine expressed in the maxim res ipsa loquitur is a rule of evidence based on fairness and common sense. It should not be applied mechanistically but in a way which reflects its underlying purpose. The maxim encapsulates the principle that in order for a claimant to show that an event was caused by the negligence of the defendant, he need not necessarily be able to show precisely how it happened. He may be able to point to a combination of facts which are sufficient, without more, to give rise to a proper inference that the defendant was negligent. A car going off the road is an obvious example. A driver owes a duty to keep his vehicle under proper control. Unexplained failure to do so will justify the inference that the incident was the driver's fault. In the words of the Latin tag, the matter speaks for itself. In such circumstances the burden rests on the defendant to establish facts from which it is no longer proper for the court to draw the initial inference"
So now we know, and I would encourage everyone to embrace the maxim with enthusiasm and vigour, or the as the Romans would have said: Carpe Diem!