232 Chapter 8The tort of negligence
The thing speaks for itself (previously known as res ipsa loquitur)
As negligence is a civil action, the burden of proof is on the claimant to prove his or her case
on a balance of probabilities. Sometimes the claimant will not be able to prove in precisely
what way the defendant was negligent. In Donoghue vStevenson, for instance, the claimant
would not have been able to prove exactly how the defendants were negligent in allowing
the snail to get into the bottle of ginger beer.
By claiming that the thing speaks for itself, the claimant can reverse the burden of proof,
so that the defendant must prove that the damage was not caused by his or her failure to
take reasonable care.
The claimant will be able to say that the thing speaks for itself only if the following three
conditions are satisfied:(i) the defendant must have been in control of the thing that caused the damage;
(ii) the accident must be the kind of accident which would not normally happen without
negligence on the part of some person;
(iii) the cause of the accident must be unknown.
Ward vTesco Stores (1976)provides an example. A customer in the defendants’ super-
market slipped on yogurt which had been left on the floor. The defendants would have
breached the duty of care they owed to customers if the yogurt had been on the floor for an
unreasonable time, but not otherwise. The claimant did not know how long the yogurt had
been on the floor. The defendants were able to prove that they swept the supermarket floor
five or six times a day. The Court of Appeal held that the duty of care which the defendants
owed to the claimant had been breached. The claimant could not prove that the defendants
were at fault. However, the claimant had shown that something had happened which, in
the absence of any explanation, made it more likely than not that the defendants were at
fault. Once the claimant had proved this, the defendants would be liable unless they could
prove that they were not at fault. The defendants could not prove this and so they were
liable. Ward vTesco Storeswas distinguished by the Court of Appeal in Tedstone vBourne
Leisure Ltd (2008). The claimant was injured when she slipped on a pool of water near a
jacuzzi at the defendants’ hotel. Water had not gathered in this area before, and had not
been there five minutes before the accident. No reasonable system of the defendants could
have dealt with the water in such a short time. Therefore the claimant’s argument, that the
accident would not have happened if the defendants had not been negligent, failed. So no
burden of proof passed to the defendants.caused by the breach of duty A foreseeable type of damage was
In order to recover damages for the tort of negligence the claimant must prove that the
defendant’s breach of duty caused the loss for which damages are being claimed. Further-
more, the claimant must prove that the loss was a type of loss which would foreseeably
follow from the defendant’s breach.Causation
The claimant can recover damages in respect of a loss only if it can be proved that the loss
was caused by the defendant’s breach of duty. Generally, the courts use a ‘but for’ test in
assessing this. That is to say, they ask whether the claimant would have suffered the loss
but for the defendant breaching the duty. If the claimant would not, then this suggests that