Negligence Owing to Res Ipsa Loquitur: Savigar v Ainscough Crane Hire Ltd [2021] EWHC 2707 (QB)

On 11 October, judgment was handed down in the workplace injury case of Savigar v Ainscough Crane Hire Ltd [2021] EWHC 2707 (QB), which dealt with application of ‘res ipsa loquitur’ (meaning ‘the thing speaks for itself’, in Latin).[i]

The claimant was employed by the defendant as a HGV ballast driver. On 29 November 2014, he drove his tractor unit into a washbay area, operated by his employer, where (or in the vicinity) a crane, with a three-quarter tonne hook block attached, was also parked. He began cleaning his tractor unit using a high pressure hose and lance, whilst wearing a safety helmet.

Shortly thereafter, he was found unconscious on the ground in the washbay area, with his undented, unmarked helmet no longer on his head, but nearby.

Despite lacking knowledge or memory up to the point of losing consciousness, the claimant alleged that his injuries were caused by the crane’s hook block ‘moving and striking his head’ and further, that the defendant had acted negligently.

However, no witness had seen the crane move and available records indicated that the crane’s engine was turned off at the time of the incident.

What was clear from the expert evidence was that the claimant had received two distinct head impacts, one of which was consistent with ‘a very severe blow to the back or right side of the head by a hard, flat object’ and another consistent with ‘a less severe blow to the front of the head … by a hard, flat, blunt object’.

It was the claimant’s case that sufficient force to cause the serious head injuries sustained could not have been generated by a stationary hook block; it had to have been moving.

Both instructed medical experts [Mr Stuart (Consultant and Honorary Senior Lecturer in Accident and Emergency Medicine) for the claimant  and Dr Mumford (Consultant Neurologist) for the defendant] accepted that the claimant’s version of events was possible, but there was another explanation, namely that the claimant had been assaulted with a weapon.

At trial, Her Honour Judge Beech found in favour of the defendant.

The claimant appealed on multiple grounds, one of which being:

‘Ground 2. The Judge was wrong in law in failing to draw an inference of carelessness on the part of the Defendants in circumstances in which the nature of the incident suggests negligence and the Defendants' responsibility (res ipsa loquitur)’.

HHJ Beech, at 1st instance, held that the claimant’s argument based on res ipsa loquitur had to be extinguished by the possible assault offering ‘a plausible explanation [for the injuries] that is not that of negligence on the part of [the defendant]. It is relevant to note that she did not count out the possibility of there being other ‘plausible explanations’ not yet suggested.

On appeal, counsel for the claimant submitted, on a common sense basis, that:

‘… once a finding had been made [by the Court] that the hook block had moved it should have been inescapable that the same was prima facie evidence of the Defendant's negligence by operation of res ipsa loquitur or as the only reasonable inference to be drawn from the facts as they should have been found’.

The issue with the assertion that the hook block had ‘caused’ the injuries, however, was that it was dependent on the unsubstantiated assumption that the block had moved.

As such, Mr. Justice Knowles concluded that the claimant’s case could not succeed on this basis. The facts themselves did not speak of negligence.

The High Court judge went on to reveal that the claimant could have improved his prospects on appeal, had he established that the hook block did in fact move:

‘… then a quite separate argument might have been available to the effect that, against the background and surrounding facts, the fact of the hook block moving spoke itself of negligence on the part of [the defendant].

Full text judgment can be accessed here.

Savigar is one of several personal injury cases involving cranes where res ipsa loquitur has been raised.[ii] Another, Scott v. London and St. Katherine Docks Co. (1865) 3 H. & C. 596, was one of the first to outline when and how res ipsa applies:

‘There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care’.

With passing time, the status attached to res ipsa loquitur has arguably become more diluted. It is no longer considered to be a doctrine, principle, or rule of law. ‘… [it] is no more than an exotic, although convenient, phrase to describe what is in essence no more than a common sense approach … to the assessment of the effect of evidence’ – see Lloyde v West Midlands Gas Board [1971] 2 All ER 1240. ‘It is simply a convenient label for a group of situations in which an unexplained accident is, as a matter of common sense, the basis for an inference of negligence’ – see Bergin v David Wickes Television [1994] P.I.Q.R. P167. ‘Where expert and factual evidence is being called on both sides at trial its usefulness will normally have been long since exhausted’ – see Ratcliffe v Plymouth & Torbay Health Authority & Anor [1998] EWCA Civ 2000].

In essence, applicable cases are, according to a recent decision in the Court of Appeal, ‘merely cases in which, on the totality of the evidence, the court was able to make a finding of negligence’, which is not even a repercussion exclusive to res ipsa loquitur:

‘It has always been the position that courts can make findings of fact by means of inference when there is no direct evidence of the events in issue’O'Connor v The Pennine Acute Hospitals NHS Trust [2015] EWCA Civ 1244.

 

Put simply, res ipsa in civil litigation today ‘describes a situation in which it is possible to draw an inference of negligence where a claimant has proved a result without proving any specific act or omission on the part of the defendant which has produced the result. If, on the balance of probabilities that the result could not have happened without negligence and that the situation was under the control of the defendant, the court may conclude it is more likely than not that the result was caused by negligence. However, it is not appropriate to draw such an inference where there is evidence as to why or how the result occurred’Thomas v Curley [2013] EWCA Civ 117.

 

[i] Gordon Exall, ‘PROVING THINGS 217: WHEN AN ACCIDENT IS UNEXPLAINED: RES IPSA LOQUITUR CANNOT ASSIST’ (13 October 2021 Civil Litigation Brief) <https://www.civillitigationbrief.com/2021/10/13/proving-things-217-when-an-accident-is-unexplained-res-ipsa-loquitur-cannot-assist/> accessed 14 October 2021.

[ii] Swan v Salisbury Construction Company Limited (Bermuda) [1965] UKPC 4.

Milne v Townsend [1892] SLR 29 – 747.

Macaulay v. Buist & Co. (1846) 9 D. 245.