Mummery v Irvings Pty Ltd

96 CLR 99

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(Judgment by: DIXON CJ, WEBB J, FULLAGAR J, TAYLOR J)

Between: MUMMERY
And: IRVINGS PTY LTD

Court:

Judges:
Dixon CJMcTiernan J

Webb J
Fullagar J
Taylor J

Subject References:
Negligence
Occupier
Dangerous machinery
Res ipsa loquitur
Onus

Legislative References:
Factories and Shops Act 1928 (No 367) (Vic) - the Act

Judgment date: 15 August 1956

SYDNEY

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Judgment by:
DIXON CJ
WEBB J
FULLAGAR J
TAYLOR J

The respondent to this appeal is the proprietor of a business at Wangaratta in the course of which it sells timber to the public. The business is carried on in a large iron shed with a frontage to a public street. At the front end of the building there are two sets of double doors which provide access for those members of the public who desire to do business with the respondent. Inside the shed itself there were, at the relevant time, stacks of timber and various woodworking machines including a power-driven circular saw.

On 15th February 1954 the appellant came to the respondent's premises for the purpose of purchasing supplies of timber. He had been there previously for the same purpose and had conducted his business with one, Howden, who was said to be the respondent's foreman. On the previous occasions he had entered the shed and made arrangements there for his various purchases. No particular provision was made for the accommodation of customers; there was no office and no part of the building was set apart for their reception or accommodation. Therefore, on the day in question the appellant entered the building through one of the doorways referred to and, having observed Howden working at the circular saw some little distance away, he moved towards him. This is the last the appellant remembers of the events of this visit for he was immediately struck on the face by a flying piece of wood and suffered severe injuries. The fact that he was so struck was established by interrogatories and the other evidence obtained in this fashion indicates that the piece of wood came from the circular saw. The appellant thinks that he was about twelve or fourteen yards from the saw when he was struck but the respondent's answer to an appropriate interrogatory suggests that he was somewhat closer and places the distance at approximately fifteen feet. There is no evidence concerning the size of the piece of wood which struck the appellant nor is there any evidence concerning the size or other characteristics of the saw itself. In particular there is no evidence whether the ejection of a piece of wood of sufficient magnitude and with sufficient violence to cause the appellant's injuries was a usual occurrence in the use of such a saw or, indeed, whether it was an occurrence which might reasonably have been foreseen. Nevertheless, one may feel much sympathy with the argument that if such an occurrence was usual or could reasonably have been foreseen it constituted a danger against which the respondent's customers might well have expected some protection, or, alternatively that if it was such an occurrence as "in the ordinary course of things does not happen if those who have the management use proper care" (Scott v London & St. Katherine Docks Co), ^[F1] the evidence in the case constituted sufficient prima facie evidence of negligence on the part of the respondent's foreman.

The substantial difficulties in the case, however, arise both from the form in which the action was brought, the paucity of the evidence and the manner in which the trial was conducted. The statement of claim alleged that the respondent was the occupier of the premises in question, that the operations already briefly described were conducted on the premises, that on the day in question the appellant entered the premises for the purpose of purchasing timber and was struck in the eye by a piece of wood and, by par. 5, that "the accident referred to ... was caused by reason and in consequence of the negligence of the defendant company and/or its servants and agents". Particulars of the negligence alleged were appended to par. 5 and these are as follows:

"(a)

Failing to take reasonable care to make premises safe for the plaintiff.

(b)

Failing to have proper guards on a saw in order to prevent pieces of wood flying therefrom.

(c)

Carrying out sawing operations on the said premises in such a position as to endanger persons lawfully on the said premises.

(d)

Failing to carry out sawing operations in an enclosed building."

Thereafter the statement of claim went on to allege, alternatively, that the respondent's premises

"were a factory within the meaning of the Factories and Shops Act of the State of Victoria and the said saw was a dangerous machine and/or that part of the factory in which the said saw was located was a dangerous part of the factory within the meaning of the said Act."

It was thereupon alleged that the respondent had omitted

"to provide adequate guards to the said machine and/or dangerous part of the factory so as to prevent as far as possible bodily injury to the plaintiff."

The action was tried before a jury and at the conclusion of his charge the learned trial judge submitted a number of questions to them but it is necessary to refer to two of these only. They were as follows:

"(a)

Did the accident occur by reason wholly or partly of the failure of the defendant company or any of its servants or agents whose duty it was as such servants or agents to do so, to use reasonable care to prevent damage to the plaintiff from unusual danger which such servants or agents knew or ought to have known?

(b)

Did the accident occur by reason wholly or partly of the failure of the defendant company or any of its servants or agents whose duty it was as such servants or agents to do so, to comply with the provisions of s. 59 of the Factories and Shops Act 1928 as to the guarding of dangerous machinery or the guarding of a dangerous part of the factory?" The first of these questions was answered by the jury in the negative and the second in the affirmative and they assessed damages at PD2,500. Subsequently, after argument, the learned trial judge directed that judgment should be entered for the defendant. An appeal to the Full Court of the Supreme Court from this order was unsuccessful and this appeal is brought from the order of that court.

After the jury had returned their answers to the questions submitted to them one matter only remained for the consideration of the trial judge. This was whether there was any evidence to support the jury's affirmative answer to the second question above set out and it is convenient to deal with this matter before proceeding to the other difficulties in the case. Section 59 of the Factories and Shops Act 1928 is as follows:

"59.(1)

Every occupier of a factory shall provide guards for-(a) all dangerous parts of the machinery of the factory; (b) all dangerous appliances used in or in connection with the factory; and (c) all dangerous parts of the factory, so as to prevent as far as possible loss of life or bodily injury, and shall keep all guards constantly maintained in an efficient state and properly adjusted.

(2)

Every person who contravenes any of the provisions of this section shall be guilty of an offence against this Act and shall be liable to a penalty of not less than Five nor more than One hundred pounds."

The expression "guard" in this section is the subject of definition by s. 61 (2) of the Act which provides that in the construction of s. 59 the word "guard" shall be deemed to extend to and include a fence. It will be seen that the appellant's statement of claim intended to allege breaches of pars. (a) and (c) of sub-s. (1) of s. 59, though it should be observed that it was alleged that the circular saw was a dangerous machine and that the respondent had failed in its statutory duty of providing an adequate guard to the said machine, whereas the obligation created by sub-s. (1) is to provide guards for "all dangerous parts of the machinery of the factory". The distinction, as will appear, is not without considerable significance. It is a distinction to which, however, little, if any, attention appears to have been paid at the trial but this is of little moment if, as the learned trial judge thought, there was no evidence to establish either that the machine was dangerous or that it was without a proper or sufficient guard. On the first point the learned trial judge, in his reasons for directing that judgment should be entered for the defendant, said:

"If a piece of wood came from a machine which ordinarily was not liable to throw out pieces of wood in that fashion, is that enough to make the machine for the purposes of s. 59 a dangerous machine or any part of it a dangerous part? Is it enough to make the machine a dangerous appliance, or is it enough to make the part of the factory where the plaintiff was struck a dangerous part of the factory within the meaning of the section? I think not. I think that unless the jury was entitled to conclude on the evidence that the projection of such portions of injurious material was characteristic of the operation of the circular saw ... there was not sufficient to enable them to conclude that there was any portion of machinery, any dangerous appliance, or any dangerous part of the factory to which the accident would be attributed within the meaning of s. 59."

And on the second point he said:

"In my opinion, it is not possible here for a reasonable jury to say on the balance of probabilities that it has been established that no guard at all was provided or maintained, or that none was provided or maintained to the extent necessary under the section. Plaintiff has not, I think, on the probabilities excluded the alternative view that the accident occurred notwithstanding the provision and maintenance of some guards such as were necessary to prevent so far as possible loss of life or bodily injury".

We agree that the evidence was deficient in these respects and this would be sufficient to deny the appellant a new trial on this issue but there is another reason why this result should follow. As already mentioned s. 59 (1) (a) makes provision for the guarding of "all dangerous parts of the machinery of the factory". The language of the section is not dissimilar from that which was under consideration in Nicholls v F. Austin (Leyton), Ltd ^[F2] where Lord Thankerton said:

"My Lords, on consideration of the terms of s. 14, I am of opinion that there is a simpler answer to the contention of the appellant, namely, that the obligation to fence imposed by sub-s. (1) is an obligation to provide a guard against contact with any dangerous part of a machine, and that it does not impose any obligation to guard against dangerous materials or articles ejected from the machine in motion, that matter depending solely on the making of regulations by the Secretary of State under the discretionary power conferred on him by the last paragraph of the section. This view appears to be amply confirmed by the language used. In the first place, sub-s. (1) is dealing with fencing of dangerous parts of any machine, and not with dangerous machines, whereas the dangerous materials or articles do not necessarily emanate from a dangerous part of a machine". ^[F3]

On the same point Lord MacMillan said:

"The circular saw was admittedly a dangerous part of the woodworking machine which the appellant was operating. It was therefore the duty of the respondents securely to fence it. They observed and indeed more than observed all the requirements of the Woodworking Machinery Regulations 1922, under the Act for the fencing of circular saws. But the fencing did not prevent a fragment of wood flying off while the saw was working. Was it the statutory duty of the respondents so to fence the saw as to prevent this possibility? In my opinion the statute imposes no such duty. The obligation under s. 14 to fence the dangerous part of a machine, as I read it, is an obligation so to screen or shield the dangerous part as to prevent the body of the operator from coming into contact with it, and this obligation was in the present instance amply fulfilled". ^[F4]

The view of Lord Simonds was expressed in the following passage:

"The first question is, I think, correctly stated in the appellant's case in these words:

`Whether the words "every dangerous part" referred to in s. 14 of the Factories Act 1937, refer only to parts which are directly dangerous by reason that the part itself is liable to cause injury so that such parts only are required to be fenced by the said section, or whether the said words "every dangerous part" include parts which are indirectly dangerous in that they are liable to throw out material with such force that the material is liable to cause injury to the worker so that such parts also are required to be fenced by the said section.'

My Lords, I have no doubt that this question should be answered by saying that the words `every dangerous part' in their context refer only to parts which are directly dangerous by reason that the part itself is liable to cause injury". ^[F5]

Lord Uthwatt subscribed to the same view. He said:

"The contention of the appellant is that the phrase `every dangerous part', in respect of which the obligation to fence is imposed by sub-s. (1) of s. 14, includes parts which are indirectly dangerous in that they are liable to throw out material with such force as to be liable to cause injury to the worker. Acceptance of this contention involves the view-indeed it is the substance of the contention-that the obligation imposed by the sub-section is to fence the machine, viewed as a single operating unit, so as to avoid the possibility of danger arising to the worker from its operation. My Lords, in my opinion the sub-section, whether it be read alone or be read in connection with the other provisions of the Act relating to machinery, negatives the contention. The lines on which the Act-so far as relevant here-proceeds is, not to take into account any machinery as a whole, but to require the several parts of the machinery to be considered separately in light of their construction, position or dangerous nature". ^[F6]

In a later case-Carroll v Andrew Barclay & Sons Ltd, ^[F7] at p. 487-Lord du Parcq doubted the accuracy of Lord Simonds' observations in Nicholls' Case, ^[F8] though he was completely silent concerning the other observations quoted from that case. However, none of the other noble and learned Lords who took part in the decision in Carroll's Case, ^[F9] threw any doubt upon the observations made in the earlier case.

It is true that the English legislation under consideration in Nicholls' Case ^[F10] contained additional provisions which are not to be found in the Factories and Shops Act (Vict.) and which were regarded as confirmatory of the view taken concerning the construction of the particular statutory requirement relied upon by the appellant in that case, but the absence of such provisions from the local enactment furnishes no ground for departing from the plain sense of s. 59. Upon this view the evidence relied upon at the trial by the appellant was wholly inapt to impose liability on the respondent for any breach of the duties created by the section. Accordingly this branch of the appeal must fail. But there is one other observation which should be made before finally disposing of this aspect of the case. The learned trial judge, in directing that judgment should be entered for the respondent, formed the opinion that a breach of the obligations imposed by s. 59 resulting in personal injury would give rise to a claim for damages at the suit of the injured person whether he was an employee of the occupier or, merely, upon the premises at the invitation of the occupier. No argument upon this point was addressed to us on the hearing of the appeal and we desire to reserve our opinion upon it.

The next question which calls for consideration is concerned with the manner in which the trial was conducted. From the moment the trial began until the learned trial judge had delivered his charge to the jury it was assumed both by the parties and the learned judge himself that the first claim made by the statement of claim was based upon, and confined to, the allegation that the respondent had, as the occupier of the premises in question, failed in the discharge of its duty to the appellant as an invitee present on the premises. It was upon this basis that the trial was conducted throughout and it was this circumstance, no doubt, which led counsel for the respondent, when addressing the jury after the conclusion of the evidence, to adopt a course which, after later developments, induced counsel for the appellant to ask the trial judge to amend the first question submitted to the jury. Upon the pleadings as they stood it was assumed that it was incumbent upon the appellant on this branch of the case to establish that the operation of the circular saw created an unusual danger on the premises and it was contended on his behalf that the fact that the piece of wood was violently ejected from the saw was sufficient to enable the jury to infer that this was so. This view was, of course, contested by counsel for the respondent who invited the jury to reject it. But he went further and suggested other possible causes of the mishap. The ejection of the piece of wood, he said, might have been the result of an accidental circumstance or, on the other hand, it might have been caused by some casual act of negligence on the part of the foreman. The happening was, it was suggested, consistent with either possibility and accordingly the jury should find for the respondent. This contention involved the suggestion to the jury that if they were unable to say whether or not the mishap had been caused by some causal act of negligence on the part of the foreman-and, indeed, even if they came to the conclusion that it had been-they should answer the first question favourably to the respondent. Nevertheless, counsel for the appellant did not at this stage seek to amend his claim though he did at a later stage argue that the statement of claim as it stood was wide enough to include a claim in respect of some casual act of negligence on the part of the foreman. In charging the jury the learned trial judge might have been thought to have invited the jury to consider the question of the respondent's liability on the wider basis and this resulted in two applications being made to him when he had concluded his observations. The first, made by counsel for the appellant, was that "in view of the theories put to the jury by" counsel for the respondent and the directions given to the jury by his Honour the first question above set out should be amended by adding the words "or through the negligence of the defendant, its servants and agents". This application was rejected on the ground that no such additional claim had ever been made. Thereupon counsel for the respondent asked his Honour to redirect the jury and make it quite clear to them that the appellant's claim could succeed only if, upon the evidence, they were satisfied that the appellant's injuries had resulted from a failure on the part of the respondent, as the occupier of the premises, to discharge its duty to the appellant as an invitee present thereon. Such a claim could not, it was said, be supported by evidence of some casual act of negligence on the part of a servant of the respondent. Ultimately his Honour acceded to this application and, in redirecting the jury, so confined this issue. Naturally enough he found it necessary to instruct the jury further on the subject of "unusual dangers". It was in these circumstances that the jury considered and answered the first question and, as we understand the argument, it is now contended that there should have been no redirection or, in substance, that the amendment sought should have been made. These arguments assume, of course, that there was evidence before the jury from which they might have concluded that the foreman had been negligent in operating the circular saw for, unless there was, the refusal on the part of the learned trial judge to amend the first question and the nature of his redirection to the jury were of no consequence.

Assuming for the moment that there was such evidence it is material, first of all, to ascertain precisely the nature of the cause of action sued upon. It may, perhaps, be said that the statement of claim is inartistic and that the general allegation made by par. 5 was wide enough to embrace a failure to discharge any duty towards the appellant to observe a standard of care which the circumstances imposed upon the respondent. Indeed, it was suggested during argument that where a person has sustained injuries as the result of what may, for this purpose, be called negligence, he cannot have more than one right of action and that upon this view the general allegation in par. 5 covered the full measure of the plaintiff's claim to relief. But in spite of what was said during argument the duty which the occupier of premises, as such, owes to invitees present on the premises is a separate and distinct duty from that which is involved when the servant of such an occupier causes injury to some person present on the premises by some casual act of negligence. The first duty is founded on the occupation of premises whilst the latter is not; in the first case the occupier, except perhaps in some special circumstances, is alone liable whilst in the second the master and servant are joint tortfeasors.

If par. 5 of the statement of claim should be regarded as a compendious claim based on a breach of both of these duties the matter should have been left to the jury in a wider form for the particulars given under this paragraph could not have operated to circumscribe the causes of action sued upon. This is not the function of particulars; their function is to limit the issues of fact to be investigated and in doing this they do not modify or alter the cause of action sued upon. In an action conveniently described as a negligence action the particular duty, a breach of which is relied upon to establish negligence on the part of the defendant, may be alleged to have been transgressed in a variety of ways and if the plaintiff particularises the transgression or transgressions relied upon the defendant may, subject to the discretion of the court, hold him to the issue or issues of fact so raised. But the action is still for a breach of the duty specified and the defendant will not defeat the plaintiff's claim either by establishing that the plaintiff's injuries resulted from or were consistent with some other breach of the same duty. If the facts, as proved in the case, lead to the conclusion that the injuries resulted either from one or the other the plaintiff will succeed. This view is implicit in the decision in Doonan v Beacham ^[F11] and one illustration is perhaps sufficient to show the absurdity of the contrary view. Let it be assumed that a plaintiff has sued a defendant for the recovery of damages resulting from the negligence of the defendant in the control and management of a motor vehicle on a public street and that the particular breach alleged in particulars is that the brakes of the vehicle were defective. Is it an answer to the claim if the defendant, in addition to denying that the brakes were defective, seeks to explain the mishap by asserting that he was so much under the influence of alcohol that he could not use them effectively? Or could he escape liability by seeking to explain the accident by establishing that it really happened as a result of the inefficiency of the steering system?

The position is, of course, different where personal injury has been caused in circumstances which give rise to doubts whether the injured person should pursue one cause of action or another. In such circumstances it would be unusual to find that the plaintiff had not based his claim for damages alternatively upon both causes of action. But if he has not his action must fail if upon the trial it appears that he has chosen to pursue, and to persist in pursuing, the wrong one.

In the present case there may, perhaps, be some doubt upon the pleadings whether the appellant, on this branch of the case, relied solely upon the alleged breaches of the duty imposed upon the respondent as the occupier of the premises in question but, on the whole, we are forced to the conclusion that he did. Apart from the particulars appended to par. 5 the statement of claim does not allege the breach of any duty on the part of the respondent and it is only by reference to the particulars in par. 5 that a cause of action is disclosed. When they are considered it is seen that the duty alleged to have been transgressed was the duty of the respondent, as the occupier of premises, to the appellant, as an invitee present thereon. Moreover, it was upon this basis that the trial was conducted throughout. Accordingly, in the absence of any amendment, the learned trial judge was bound to confine the deliberations of the jury on this aspect of the case to the question whether the respondent had failed in that duty. Further, so far as we can see, no application for leave to amend the pleadings was ever made to the learned trial judge though, no doubt, his refusal to amend the relevant question may well have been a sufficient intimation that such an application would, at that stage, have been rejected.

In all the circumstances of the case we think it proper to deal with this appeal as if an application to amend the pleadings had been made and rejected and to inquire whether such a rejection would have constituted a proper exercise of the learned trial judge's discretion. Upon such an application being made it would have been open to the appellant to submit with some force that the interest of justice required the issue of the respondent's vicarious liability for some casual act of negligence on the part of the foreman to be submitted to the jury. Indeed the observations made to the jury by the respondent's counsel might well have been regarded as more than sufficient provocation for such an application. No doubt the respondent might have urged in answer that the parties were engaged in a jury trial, that the manner in which the trial had been conducted had led him to refrain from calling evidence, that both counsel had addressed the jury and the trial judge had delivered his charge. But in answer to all of these considerations the appellant was in a position to say that the additional issue had been thrown into the ring by the respondent itself and that, having adopted this course, it was in no position to resist an application to re-open the case and make the question of the foreman's negligence a real issue. Why, it might have been asked, should the jury be invited to conclude that the appellant's injuries were caused by the negligence of the foreman and, thereupon, to find for the respondent when that very circumstance would, if the pleadings were in proper form, constitute a ground for awarding damages to the appellant? There is, of course, no doubt that the question of extending the issues at the trial was peculiarly within the discretion of the trial judge. But, on the assumption that there was some evidence upon which the jury could have reached a conclusion on this additional issue, there was every reason why it should have been submitted to the jury. If, as the members of the Full Court appear to have thought, the present judgment precludes the appellant from bringing any further action that was an additional reason why that course should have been adopted. We find it unnecessary to express any view upon that question but our doubts on this point do not lessen our belief that, if there was evidence upon this additional issue, a refusal to extend the issues was not, in the circumstances, justifiable.

But these observations are made on the assumption that there was evidence from which the jury might have inferred negligence on the part of the respondent's foreman. Whether or not this assumption is justified depends upon whether the appellant was entitled to invoke the assistance of the doctrine or principle of res ipsa loquitur. This is of vital importance, for, if he was not, the course taken by the learned trial judge is quite immaterial in the disposition of this appeal.

In the Supreme Court Lowe J. expressed the opinion that the facts were "almost a classic example of the operation of the principle" whilst Dean J. was unable to see how it could be applied on the facts proved. A sharp division of opinion on questions of this character has not been unusual and, in attempting to arrive at the true solution in this case, it is not out of place to examine briefly the basis upon which the principle rests. It has been said that

"the doctrine seems to date from about the middle of the nineteenth century and was definitely formulated in the cases of Byrne v Boadle ^[F12] and Scott v London & St. Katherine Docks Co ^[F13] decided in 1863 and 1865 respectively". ^[F14]

Reference to the argument in the former case shows that earlier cases were not unknown in which, according to Pollock C.B., it might have been said res ipsa loquitur. But we have no doubt that, in the decision of Byrne v Boadle, ^[F15] the members of the court were not conscious of formulating, and did not intend to formulate, any new doctrine or principle of law. The facts of that case are so well known that it is unnecessary to repeat them beyond stating that the question was whether proof of the fact that a barrel had fallen from the defendant's warehouse and injured the plaintiff constituted evidence from which negligence on the part of the defendant might properly be inferred. The argument of the defendant stressed the point that it was not possible to infer negligence from the mere proof of an accident; the happening, it was said, was quite consistent with the exercise by the defendant and his servants of reasonable care. In dealing with this submission Pollock C.B. said:

"The learned counsel was quite right in saying that there are many accidents from which no presumption of negligence can arise, but I think it would be wrong to lay down as a rule that in no case can presumption of negligence arise from the fact of an accident. Suppose in this case the barrel had rolled out of the warehouse and fallen on the plaintiff, how could he possibly ascertain from what cause it occurred? It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence". ^[F16]

Channell B. said:

"I agree that it is not every accident which will warrant the inference of negligence. On the other hand, I dissent from the doctrine that there is no accident which will in itself raise a presumption of negligence. In this case I think there was evidence for the jury". ^[F17]

With these observations Bramwell B. and Pigott B. agreed. Counsel for the plaintiff in that case was not called upon to argue, their Lordships apparently considering that the case was too clear for words. At this late stage we respectfully voice our agreement with their conclusions. Two years later in Scott v London & St. Katherine Docks Co ^[F18] the Exchequer Chamber was faced with a case in which the facts were much the same as those of the earlier case. The only distinguishing feature was that the plaintiff's injuries had been caused, not on a public highway, but in a privately owned dockyard. This circumstance was of no consequence, and, whilst their Lordships recognized the authority of cases to the effect that a mere scintilla of evidence is not enough to justify an inference of negligence, they affirmed the rule of the Court of Exchequer setting aside the verdict initially directed for the defendant and ordering a new trial. Their Lordships' reasons were brief and may be set out in full:

"There must be reasonable evidence of negligence. But where the thing is shewn 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. We all assent to the principles laid down in the cases cited for the defendants; but the judgment turns on the construction to be put on the Judge's notes. As my brother Mellor and myself read them we cannot find that reasonable evidence of negligence which has been apparent to the rest of the Court. The judgment of the Court below must be affirmed, and the case must go down to a new trial, when the effect of the evidence will in all probability be more correctly ascertained". ^[F19]

Since this decision the second paragraph above-quoted has been consistently accepted as a classical statement in general terms of the circumstances which will call the doctrine of res ipsa loquitur into operation. But quite clearly the statement was not intended as the formulation of some new principle of law; its significance was as a general index to those special cases in which mere proof of an occurrence causing injury itself constitutes prima facie evidence of negligence. Nor was it stated as a rule the operation of which is designed to shift the onus of proof to the defendant in the sense that, once invoked, the onus lies upon the defendant to prove the absence of negligence.

The statement of the Court of Exchequer Chamber has been relied upon in a great variety of cases. It has been used in a multitude of cases to justify, or to attempt to justify, the assertion that proof of injury resulting from a falling object constitutes evidence of negligence (cf. Briggs v Oliver; ^[F20] Kearney v London, Brighton & South Coast Railway Co; ^[F21] Welfare v London & Brighton Railway Co ^[F22] and Pope v St. Helen's Theatre Ltd). ^[F23] It has been used in cases where a plaintiff has been injured as the result of a collision between two trains on the defendant's railway line (Skinner v London, Brighton & South Coast Railway Co ^[F24] and where the defendant's train struck part of the railway installation (Burke v Manchester, Sheffield & Lincolnshire Railway Co). ^[F25] It has been used in some types of highway cases, for instance, where a vehicle has mounted a footpath and injured a pedestrian (Ellor v Selfridge & Co Ltd), ^[F26] or struck some obstacle on the footpath (Barnes Urban District Council v London General Omnibus Co), ^[F27] and in cases where foreign substances have been found in prepared foodstuffs (Chaproniere v Mason). ^[F28] It would be a tedious task to attempt to traverse the whole field of cases in which the statement has been relied upon but consideration of the wide field of authority leaves no room for doubt that, once the cause of an accident has been established and the relevant circumstances proved, there is no further room for the operation of the principle. As Lord Porter said in Barkway v South Wales Transport Co Ltd: ^[F29]

"The doctrine is dependent on the absence of explanation, and, although it is the duty of the defendants, if they desire to protect themselves, to give an adequate explanation of the cause of the accident, yet, if the facts are sufficiently known, the question ceases to be one where the facts speak for themselves, and the solution is to be found by determining whether, on the facts as established, negligence is to be inferred or not". ^[F30]

In the same case Lord Normand said:

"The fact that an omnibus leaves the roadway and so causes injury to a passenger or to someone on the pavement is evidence relevant to infer that the injury was caused by the negligence of the owner, so that, if nothing more were proved, it would be a sufficient foundation for a finding of liability against him. It can rarely happen when a road accident occurs that there is no other evidence, and, if the cause of the accident is proved, the maxim res ipsa loquitur is of little moment". ^[F31]

With these views Lord Morton agreed and Lord Radcliffe added:

"I do not think that the appellant was entitled to judgment in the action because of any special virtue in the maxim res ipsa loquitur. I find nothing more in that maxim than a rule of evidence, of which the essence is that an event which in the ordinary course of things is more likely than not to have been caused by negligence is by itself evidence of negligence. In this action much more is known than the bare fact that the omnibus mounted the pavement and fell down the bank. The true question is not whether the appellant adduced some evidence of negligence, but whether on all the evidence she proved that the respondents had been guilty of negligence in a relevant particular". ^[F32]

At this stage it is appropriate to return to the language used in Scott v London & St. Katherine Docks Co ^[F33] and to observe that the vital condition for the operation of the principle is that

"the accident is such as in the ordinary course of things does not happen if those who have the management use proper care".

Indeed, to overlook or to exclude this requirement might well be thought to produce the result that mere proof of any occurrence causing injury will constitute sufficient proof of negligence in any case where an object which, physically, has caused injury to the plaintiff is under the control and management of the defendant and the actual cause is, therefore, not known to the plaintiff and is, or should be, known to the defendant. The requirement that the accident must be such as in the ordinary course of things does not happen if those who have the management use proper care is of vital importance and fully explains why in such cases res ipsa loquitur.

In many cases in which the principle, if it may be so called, has been applied the basis of its application is readily seen. It is not difficult to see why in cases such as Byrne v Boadle ^[F34] and Scott v London & St. Katherine Docks Co ^[F35] the principle should be invoked. Neither barrels nor bags fall from warehouses in the usual course of events unless there has been carelessness on the part of those who have the management of them. Moreover it is not difficult to imagine acts of carelessness which could bring about such a result and much the same may be said concerning the other illustrations previously given. But what is the position in a case such as the present? In may be urged that the case is much the same as Byrne v Boadle ^[F36] and Scott v London & St. Katherine Docks Co ^[F37] and with this we would agree emphatically if the evidence called for the appellant at the trial merely established that upon entering the respondent's premises he was violently struck by a piece of wood flying through the air. But the evidence goes further. It tends to establish-even if it does not clearly establish- that the wood was thrown by the circular saw and in part this explains the physical cause of the accident. In these circumstances a court must ask itself, not whether negligence may be inferred from the mere fact that a piece of wood struck the appellant immediately after he had entered the respondent's premises, but whether it may be inferred from the fact that a piece of wood was thrown from the circular saw. In other words the question is whether the latter occurrence was such

"as in the ordinary course of things does not happen if those who have the management use proper care".

To that inquiry in this case there cannot be an affirmative answer. We are told nothing of the characteristics of circular saws and we are not told that such an occurrence is usual or unusual or indeed highly improbable. Moreover we are told nothing concerning the size of the piece of wood in question and it is difficult, if not impossible, in these circumstances to attribute the accident to some act of negligence on the part of the operator. If the question is posed

"Was the accident such as in the ordinary course of things does not happen if those who have the management use proper care?"

the answer, on the evidence in the case, must be

"We simply do not know."

One may but conjecture but cannot as a matter of inference attribute negligence to the respondent's foreman. As Kennedy L.J., speaking of the principle of res ipsa loquitur, said in Russell v London & S.W. Railway: ^[F38]

"The meaning, as I understand, of that phrase ... is this, that there is, in the circumstances of the particular case, some evidence which, viewed not as a matter of conjecture, but of reasonable argument, makes it more probable that there was some negligence, upon the facts as shown and undisputed, than that the occurrence took place without negligence. The res speaks because the facts stand unexplained, and therefore the natural and reasonable, not conjectural, inference from the facts shows that what has happened is reasonably to be attributed to some act of negligence on the part of somebody; that is, some want of reasonable care under the circumstances. Res ipsa loquitur does not mean, as I understand it, that merely because at the end of a journey a horse is found hurt, or somebody is hurt in the streets, the mere fact that he is hurt implies negligence. That is absurd. It means that the circumstances are, so to speak, eloquent of the negligence of somebody who brought about the state of things which is complained of". ^[F39]

Unfortunate as it may be for the appellant we are satisfied that there was no evidence capable of supporting the allegation that the appellant's injuries resulted from negligence on the part of the respondent's foreman.

We should add that upon the evidence submitted to them the jury appear to have taken the view that the operation of the machine created a state of danger on the premises and that, in one sense, the appellant's injuries resulted from this cause. In view of the directions given to them their answers to the two questions set out above would seem to indicate this. Their answer to the second question indicates that they considered that, in a relevant sense, the circular saw was a dangerous machine and that its operation created a state of danger on the premises. This conclusion would, of course, have carried the appellant part of the way to an affirmative answer to the first question and the only way in which the negative answer to this question may be explained is by concluding that they thought that the danger was obvious and not "unusual". It may be that the learned trial judge's charge on this point required some modification in view of the reasons of their Lordships in London Graving Dock Co Ltd v Horton. ^[F40] Indeed if the evidence established that the operation of the saw created, in a relevant sense, a state of danger on the premises, there may be every reason for thinking that it was an unusual danger in spite of the fact that it may have been thought to be obvious. Further it may be that the respondent's duty to exercise reasonable care to protect the appellant from that danger was not, in the circumstances of the case, aborted by the appellant's knowledge of the obvious, or, such as might have been discharged by notice to the appellant of the existence of the danger. However, no objection on this score was taken to the directions given by the learned trial judge nor has any argument on the point been addressed to us and it is unnecessary to consider the matter further.

Before parting with the case we desire, in deference to the argument addressed to us and in view of the importance of the matter, to make a few brief observations concerning the onus of proof in cases where the principle of res ipsa loquitur is properly invoked. Much has been said on the question but, in our view, nothing has occurred to require us to reconsider the observations made on this point by Rich J. and by Dixon J. (as he then was) in Fitzpatrick v Walter E. Cooper Pty Ltd. ^[F41] It was pressed upon us that the observations of some of their Lordships in Woods v Duncan ^[F42] and Barkway v South Wales Transport Co Ltd ^[F43] are inconsistent but, although some of the observations then made may, perhaps, be so understood we are satisfied that this is not their real import. In neither case was the point raised for decision; in one case there was evidence showing how the accident had been caused whilst, in the other, the relevant appellant had proved affirmatively that he had not been guilty of any negligence. In the earlier case the Court of Appeal had allowed an appeal against Lieutenant Woods and directed judgment against him. In reaching this conclusion the Master of the Rolls had relied both on the operation of the principle of res ipsa loquitur and upon inference from the whole of the evidence. He said:

"Both on the principle of res ipsa loquitur, and, if this were not applicable, then because in my opinion an affirmative case is established, I feel constrained to hold that Lieut. Woods was guilty of negligence. He failed to give the proper order to Hambrook to put the lever in the closed position and relied in part on the evidence of the test-cock which he ought to have known was never intended to be relied on for such a purpose and was in any case wholly unreliable unless the rimer was used". ^[F44]

In dealing with these observations Lord Russell of Killowen said:

"My Lords, assuming that the principle of res ipsa loquitur applies, and establishes that prima facie Lieutenant Woods must have been negligent, it is open to him to prove affirmatively (as in my opinion, he has) that he did throughout exercise reasonable care. The principle does not involve this-that, notwithstanding that affirmative proof, he must be held to have been negligent, unless he can solve the mystery and prove how the bow-cap came to be open at the critical moment". ^[F45]

The evidence of Lieutenant Woods at the trial did not account for the catastrophe; it left its real cause unexplained but it did establish, if believed, that he, personally, had not been guilty of any negligence. It was to deal with this situation that Lord Russell's observations were made and their remaining Lordships dealt with the same difficulty. Viscount Simon said:

"The case against Lieutenant Woods has been put as an application of the principle known as res ipsa loquitur, since he was in charge of the forward compartment. Even so, that principle only shifts the onus of proof, which is adequately met by showing that he was not in fact negligent. He is not to be held liable because he cannot prove exactly how the accident happened". ^[F46]

Lord Simonds said:

"I will add first a few words upon the question of the liability of Lieutenant Woods. I will assume against him, though I doubt whether the assumption is justified that this is a case in which the principle of res ipsa loquitur may be applied. But to apply this principle is to do no more than shift the burden of proof. A prima facie case is assumed to be made out which throws upon him the task of proving that he was not negligent. This does not mean that he must prove how and why the accident happened: it is sufficient if he satisfies the court that he personally was not negligent". ^[F47]

It will be seen that what their Lordships were concerned with was the proposition whether credible evidence, which fell short of revealing the real cause of the catastrophe, would displace the operation of the principle of res ipsa loquitur and they held that it could. It is true that, in doing so. Viscount Simon and Lord Simonds expressed themselves in terms which were wide enough to suggest that once a prima facie case is made out by the operation of the principle of res ipsa loquitur the onus of disproving negligence is cast upon the defendant but, as far as we can see, no support is to be found for this proposition in the observations of the other noble and learned Lords who took part in the case. But although Viscount Simon spoke of the shifting of the onus of proof he did not say that the onus of disproving negligence rested upon the defendant; he merely said "that the onus was adequately met by showing that he was not, in fact, negligent". That is to say, as we understand it, that it was unnecessary for the defendant to explain the cause of the accident. Lord Russell's observations were directed to the same point and we are by no means sure that Lord Simonds' observations were, in the light of the special facts of that case, intended as a general statement of the operation of the principle.

Nor do the observations made in Barkway v South Wales Transport Co Ltd ^[F48] carry the matter further. No doubt when the principle of res ipsa loquitur is properly invoked the defendant is faced with a situation where he must elect whether the question of his liability will be determined upon the plaintiff's evidence alone or whether he will attempt to show that the accident happened without negligence on his part. This, of course, he may do only by calling evidence. If be is aware of the cause of the accident he may seek to avoid liability by proving the relevant facts; if he is not, he may attempt, by evidence, to show that he was not negligent. But in either case the principle will continue to operate unless the facts are proved (cf. O'Hara v Central S.M.T. Co Ltd ^[F49] and Turner v Commissioner for Road Transport and Tramways). ^[F50] In this sense, and in this sense alone, the defendant may, perhaps, be said, to carry an onus and, it may be, that this was the meaning intended by Viscount Simon and Lord Simonds. But if the defendant's evidence, being acceptable, shows how the accident was caused the operation of the principle ceases and it becomes a question whether, upon that evidence, the defendant was negligent or not and the defendant will succeed unless the jury is satisfied that he was. In cases such as Woods v Duncan, ^[F51] where the defendant is unaware of the real cause of the accident, it will be for the jury to say whether, in the first place, his evidence is acceptable to them and, if so, whether notwithstanding that evidence they are satisfied that he was negligent. The contrary view would, it seems to us, create a state of affairs entirely anomalous and completely foreign to the grounds upon which the principal is based. The rule itself is merely descriptive of a method by which, in appropriate cases, a prima facie case of negligence may be made out and we can see no reason why a plaintiff, who is permitted to make out a prima facie case in such a way, should be regarded as in any different position from a plaintiff who makes out a prima facie case in any other way. The view which we have expressed is, we think, in accordance with Lord Porter's statement in Barkway's Case ^[F52] that

"if the facts are sufficiently known, the question ceases to be one where the facts speak for themselves, and the solution is to be found by determining whether, on the facts as established, negligence is to be inferred or not" ^[F53]

and with Lord Radcliffe's observations which have already been quoted. Lord Normand's statement that "the maxim is no more than a rule of evidence affecting onus" ^[F54] must be read subject to his observation that "if the cause of the accident is proved the maxim res ipsa loquitur is of little moment" ^[F55] and can only mean that the onus, in a broad sense, of displacing the operation of the principle, once properly invoked, by calling credible evidence, will rest upon the defendant. Such an understanding of his observations would be in keeping with his declaration in O'Hara v Central S.M.T. Co Ltd ^[F56] that " `if the defence can show a way in which the accident may have occurred without negligence, the cogency of the fact of the accident by itself disappears'". ^[F57]

One other observation perhaps should be made. In a typical case of res ipsa loquitur the plaintiff, frequently, may have two alternative courses open to him upon the trial. He may be aware of the defendant's explanation of the accident by reason, for instance, of a coronial inquiry or as a result of subsequent investigation, and yet he may simply prove the fact of the occurrence leaving it to the defendant to prove the explanatory facts. In such circumstances those who contend that the principle operates to cast upon the defendant the onus of disproving negligence will maintain that the plaintiff will succeed unless the defendant satisfies the jury affirmatively that he was not negligent. On the other hand, those who take the view that no such onus is cast on the defendant, whilst admitting that, if the defendant does not choose to call credible evidence, the principle will continue to operate, will maintain that once such evidence is given the plaintiff will fail unless the jury are satisfied that the defendant was negligent. In other words this contention involves the notion, as it has so often been put, that once acceptable evidence explaining the accident has been given the principle will cease to operate. But what is the position where the plaintiff, instead of relying on mere proof of the occurrence, himself adduces evidence of the cause of the accident? It is, of course, beyond doubt that the doctrine of res ipsa loquitur will have no place in the case. This, of course, is precisely the same situation when the explanatory matter is proved by the defendant. If his evidence is acceptable to the jury the question will be whether, upon that evidence, the jury is satisfied that he was negligent. To hold otherwise would mean that, in cases where the onus of proof is of importance, the result will be determined according to whether the explanatory matter is put before the jury by the plaintiff or the defendant. We cannot think the principle of res ipsa loquitur can produce such a capricious and anomalous result.

For the reasons given the appeal should be dismissed.