Barrister: "My Lord, in the corner of Connaught which my client farms, they talk of little else."
My apologies - it is an old anecdote. But many patients, whether from Connaught or elsewhere, have had cause to be grateful for the existence of the doctrine of res ipsa loquitur (the thing speaks for itself), and recently the Court of Appeal has given the doctrine particular consideration in the context of clinical negligence claims.
In Thomas-v-Curley the Court of Appeal determined an appeal from the trial judge's finding that damage to the Respondent's bile duct during a laparoscopic cholecystectomy had been caused negligently. The Defendant appealed on the grounds that the Court had wrongly decided the case on the basis of res ipsa loquitur.
Giving the lead judgment of the Court Lloyd Jones referred to the judgment of Hobhouse LJ in Ratcliffe-v-Pymouth and Torbay HA where he held that
"Res ipsa loquitur is not a principle of law and it does not relate to or raise any presumption. It is merely a guide to help identify when a prima facie case is being made out. Where expert and factual evidence is being called on both sides at trial its usefulness will normally have been long since exhausted. "
Reading the Lloyd Jones LJ's judgment, the impression given is that the Court was particularly anxious to avoid any conclusion that the case had been determined on the basis of res ipsa loquitur. Why so?
In Ratcliffe, the first judgment had been given by Brooke LJ. He reviewed numerous authorities on the issue of res ipsa loquitur and then set out the principles to be applied. They included the following:
"(3) In practice, in contested medical negligence cases the evidence of the plaintiff, which establishes the "res", is likely to be buttressed by expert evidence to the effect that the matter complained does not ordinarily occur in the absence of negligence.
(4) The position may then be reached at the close of the plaintiff's case that the judge would be entitled to infer negligence on the defendant's part unless the defendant adduces evidence which discharges this inference.
(5) This evidence may be to the effect that there is a plausible explanation of what may have happened which does not connote any negligence on the defendant's part. The explanation must be a plausible one and not a theoretically or remotely possible one, but the defendant certainly does not have to prove that his explanation is more likely to be correct than any other. If the plaintiff has no other evidence of negligence to rely on, his claim will then fail.
(6) Alternatively, the defendant's evidence may satisfy the judge on the balance of probabilities that he did exercise proper care. If the untoward outcome is extremely rare, or is impossible to explain in the light of the current state of medical knowledge, the judge will be bound to exercise great care in evaluating the evidence before making such a finding, but if he does so, the prima facie inference of negligence is rebutted and the plaintiff's claim will fail."
That is a very helpful and well established approach to the doctrine of res ipsa loquiur. With respect, the quotation from Hobhouse LJ's judgment does not do justice to the more detailed analysis of the doctrine given in Brooke LJ's judgment. The doctrine of res ipsa loquitur may very well have a role in clinical negligence cases, requiring the defendant to provide an explanation for the damage caused, or otherwise to give evidence which establishes that there was no negligence. So I struggle to understand the conclusion of Lloyd Jones LJ at paragraph 33 of Thomas-v-Curley were he says:
"In the circumstances I am satisfied that the judge's approach to the issue of negligence was entirely appropriate. The respondent had established that in this case, during an uncomplicated operation, injury was caused in an area other than that where the operation took place. That called for an explanation as to how that might have occurred in the absence of negligence. None was forthcoming from the defendant's expert or from any other quarter. That is entirely consistent with the judge's direction to himself that he should assess the weight of the evidence and decide whether negligence on the part of the appellant had been proved. This has nothing to do with the reversal of the burden of proof and nothing to do with res ipsa loquitur." [Emphasis added]
Surely the judgment did have something to do with res ipsa loquitur. The underlined sentences show that the trial judge had reached the position at (4) above in Lord Justice Brooke's analysis of the doctrine. The Defendant/Appellant did not discharge the inference and so negligence was established.
It would be a worrying development if the courts became too reluctant to apply the doctrine of res ipsa loquitur. In many clinical negligence claims the explanation for any injury may very well be within the exclusive knowledge of the defendant. A patient undergoing surgery is usually under anaesthetic. He may have to rely on the medical records to explain what went wrong and if they give no explanation, then he may have to rely on inferences from the injuries themselves. The doctrine of res ipsa loquitur may rarely decide the beginning and end of a clinical negligence claim, but, handled with care, it is a helpful and useful tool when determining liability.