EXPERT EVIDENCE

Most will be aware that in order to succeed in recovering damages at common law, it is necessary to prove a breach of duty of care on the part of another person. In the workplace, there are occasions when injuries occur as a result of the negligence or breach of duty on the part of employers. If such a breach of duty can be established, depending on the state or territory where it occurs, common law damages are payable. The law has recognised a doctrine known as Res Ipsa Loquitur. This doctrine basically relied upon the incident itself "speaking" or proving negligence simply by its facts. In other words, the matter speaks for itself and there is no need for other evidence. The High Court recently reviewed this principle in the case of Schellenberg v Tunnel Holdings Pty Limited. In that case an employee was struck in the face by a hose that had become detached from a tool which was powered by compressed air. It appears that at the trial expert evidence could not establish that the incident occurred because of the negligence of the employer. The injured person therefore sought to rely upon the doctrine of Res Ipsa Loquitur saying that the incident itself could only have occurred through negligence on the part of the employer. The High Court rejected this argument. It held that once there was evidence showing how the injury had occurred, namely, by the hose becoming detached from its coupling to the tool, the principle of Res Ipsa Loquitur could play no part as it was then a matter of ascertaining whether the detaching had occurred as a result of the negligence of the employer. In other words, such an incident was not one which an ordinary person would say could only occur because of negligence. As Kirby J said, the air-hose could have become detached from the coupling without any negligence on the part of the employer. Peculiarities of the work equipment required expert evidence. The evidence given did not establish any such negligence.

It is suggested that this case again affirms that it is only in unique cases that the doctrine can be relied upon. Where equipment fails and expert evidence is given about the reason for that, there will be no place for the application of the principle.

DISCLAIMER

These personal injury law articles were published with the express permission of Stacks/The Law Firm. Please note that the information was correct at the time of publication, but personal injury law is subject to legislation changes from time to time and thus it is recommended that you contact a Stacks/Goudkamp lawyer should you have any questions relating to any of the topics above.