Let the facts speak: a brief look at ‘res ipsa loquitur’ in Scotland

Background

Ms Thomson alleged that she had tripped over a mat placed outside the entrance to an Iceland supermarket. She contended that the mat was raised above the shop floor level, causing her to fall and sustain injury although she was unable to offer evidence as to height of the mat from ground level. She relied on the maxim ‘res ipsa loquitur’.

Res Ipsa Loquitur

Res ipsa loquitur, meaning ‘the thing speaks for itself’, allows a Court to infer negligence when the precise cause of harm is unknown.

The maxim was described by Lord Carloway in the case of Woodhouse v Lochs and Glens (Transport) Limited [2020] SLT 1203 at paragraph [35] –

“…res ipsa loquitur is not a legal principle. It is a presumption of fact, whose force depends on the circumstances of each case. When it applies, the defender must demonstrate that the accident occurred without fault on his part. It is not enough to proffer a possible alternative non-negligent explanation. The defender must establish facts from which it is no longer possible to draw the prima facie inference.”

In essence, it will be for the Defender to lead evidence that the incident had occurred without fault on its part.

The First-Instance Decision

Although Ms Thomson had produced photographs showing the mat raised above floor level and CCTV footage that clearly showed her forward momentum being arrested as she reached the edge of the mat the Sheriff determined that Ms Thomson did not know the exact cause of the accident.

The Sheriff did not consider Ms Thomson could reasonably be expected to know the exact cause of her accident as she had been unable to move and was taken straight to hospital.

The Sheriff considered the submissions and evidence and determined that res ipsa loquitur applied. As Iceland had not led any evidence to prove that the incident had not occurred due to their fault, the Court found in Ms Thomson’s favour.

The Appeal

Iceland appealed the decision on the basis that the Court was wrong to have found that res ipsa loquitur applied.

In its judgment, the Sheriff Appeal Court reaffirmed that two key requirements must be met:

(i) Management and Control

The first requirement, that the thing causing injury (in this case the mat) was under the Defender’s control, was conceded by Iceland during submissions, satisfying this element.

(ii) Accident Ordinarily Not Occurring If Proper Care Taken

The second question was whether the type of accident (tripping on the mat) ordinarily would not occur if reasonable care were exercised. The Sheriff found, based on the available evidence, that a properly maintained mat should not present a raised edge at an entrance, creating a foreseeable risk of injury.

The Sheriff Appeal Court agreed. It concluded that the Sheriff had been entitled to find that res ipsa loquitur applied.

Outcome

As both conditions for the application of res ipsa loquitur were met, the burden shifted to Iceland to displace the inference of negligence. Having chosen not to lead any evidence, Iceland failed to rebut the presumption. The Sheriff Appeal Court concluded that no error had been made at first instance and refused the appeal.

Summary

This decision serves as a strong warning: once a Pursuer establishes the two core conditions for res ipsa loquitur (i) that the thing causing harm was under the Defender’s management; and (ii) that the accident would not ordinarily occur if proper care is taken, the Defender must actively respond. Failure to lead evidence to rebut the inference of negligence, as Iceland Foods experienced here, can prove fatal to a defence.

Given the significant tactical and evidential challenges that res ipsa loquitur presents, seeking specialist legal advice at the earliest opportunity can make all the difference.

If you require advice or representation in defending negligence claims, particularly where complex issues such as res ipsa loquitur arise, please do not hesitate to get in touch.