(B) The notion of evidence, proof and burdens of proof

How, then, in the English context do the parties proceed in placing facts and law before the courts? Put simply, facts are alleged in the parties’ statements of claim and then supported by evidence; legal propositions are the subject of argument supported by citation.²⁴⁹ Evidence of a fact is defined as ‘that which tends to prove it—something which may satisfy an inquirer of the fact’s existence’,²⁵⁰ and may be used to prove either facts in issue or facts from which facts in issue may properly be inferred;²⁵¹ the law of evidence fixes the types of evidence which, while relevant for this purpose, should be excluded from consideration.²⁵² Further, the proof of a particular fact is its establishment to a particular degree of probability. It is at this stage that an English lawyer resorts to the twin notions of the burden of proof and the standard of proof. The persuasive burden of proof lies on the party who has to establish the existence or the non-existence of a fact: generally, it is for a party claiming something to establish it and therefore to bear this burden.²⁵³ English law accepts that in civil cases the degree (or ‘standard’) of proof is that a fact must be established as more likely than not or on a ‘balance of probabilities’,²⁵⁴ this being contrasted with the position in the criminal law where issues must (generally) be established beyond reasonable doubt.²⁵⁵

For a common lawyer, this is all very basic, but it is to be noticed that while propositions of law are clearly not the subject of burdens of proof (though they are the subject of submission and counter-submission by the parties), English law also uses the notion of burden of proof to cover the legal characterisation of facts in issue.²⁵⁶ So, in the context of the tort of negligence, while the definition of the standard of care and (p.209) the set of factors to be taken into account on breach are a matter of law for argument on the authorities, a claimant bears the burden of proof of showing that the defendant was negligent, that is, that by doing X or failing to do Y the defendant failed to attain this legal standard taking into account the relevant factors: it is not for the claimant merely to establish the facts of X or non-Y and for the court to make a (‘neutral’) evaluation of their character as negligence.²⁵⁷ In proving negligence, therefore, the claimant is not merely establishing facts according to the relevant degree of probability but also that the proper inference from these facts is one of negligence as it is defined in law. As we shall see, this idea of the evaluation as negligence by inference from ‘primary’ facts is an important one in the law governing the limits of the appellate jurisdiction.²⁵⁸

On the other hand, the power of the courts to ‘infer’ negligence from the circumstances has led to an important practical distinction in English judicial practice in relation to manufacturers’ liability in the tort of negligence. In the view of some commentators, where a product suffers from a manufacturing defect compromising its safety, the courts often presume negligence, so leading to ‘a covert area of strict liability masquerading as negligence liability’.²⁵⁹ However, the difference remains that even here the manufacturer may escape liability if he adduces convincing evidence that the defect was unforeseeable or not reasonably avoidable.²⁶⁰

At this stage, though, I need to explain the significance of the maxim res ipsa loquitur which applies in some circumstances to claims for negligence and is sometimes said to give rise to a ‘presumption of negligence’ and even ‘reverse’ the burden of proof. This maxim has been the subject of considerable disagreement and at times confusion, but its present understanding by English courts is fairly clear.

The original significance of the maxim concerned the question whether there was sufficient evidence for an allegation of negligence to be put to the jury²⁶¹ and in this context Earle CJ famously observed that:

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.²⁶²

This dictum has subsequently been taken as the basis for the application of the maxim which therefore applies to factual situations where the defendant has control of the circumstances from which the claimant’s harm has arisen and this harm would not (p.210) usually arise without negligence. So, for example, it has been applied against the manager of a steelworks where there was an explosion of gas ‘of such a violence to cause fear of imminent danger to the workers’²⁶³ and against the suppliers of a reconditioned motor car whose wheel fell off in the course of being driven the day after it was supplied.²⁶⁴ On the other hand, the maxim does not apply where more than one defendant is indicated as the possible cause of the claimant’s harm,²⁶⁵ for example, where a claimant is injured by a product which has been manufactured and then sold on through a distributor or retailer.²⁶⁶

More difficult has been the precise effect of the application of the maxim. Sometimes it has been said to create a presumption of negligence which a defendant needs to rebut either by explaining how the accident happened in a way consistent with an absence of negligence on his part or by establishing on the balance of probabilities that he was not negligent, or that it shifts the burden to the defendant to show the same things:²⁶⁷ it is not enough for a defendant to show that the accident is inexplicable.²⁶⁸ Use of the language of presumption and requiring (if only sometimes) that a defendant shows a lack of negligence does look as though the persuasive burden of proof on negligence shifts where the maxim applies.²⁶⁹ However, the better and more recent view is that res ipsa loquitur makes no change to the persuasive burden of proof and is, in Steyn LJ’s words, ‘not a doctrine, nor a principle, nor a rule. 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’:²⁷⁰ this means that the burden of proof remains on the claimant to show negligence in all cases and it is misleading to talk of the shifting of this burden.²⁷¹ What the factual situations where res ipsa loquitur has been said to apply have in common is that the evidence as a whole gives support to a proper factual inference of negligence on the part of the defendant.²⁷² In this light, res ipsa loquitur is simply a Latin tag given to a particular group of cases where the evidence of negligence is circumstantial rather than direct—it does not lead to the imposition of liability without proof of negligence.