Res ipsa loquitur not a fallback where case not proved

The decision in Horgan v Alexander, trading as the Inn at Ardgour [2019] SC EDIN 9 (Sheriff Weir, ASPIC, 13 February 2019) is a reminder that the maxim res ipsa loquitur has limited application and can only be relied on successfully in specific circumstances. The pursuer sought damages after spraining his ankle when he fell on carpeted stairs in a property owned by the defender. He claimed that his fall had been caused by a tear in the stair carpet.

The pursuer sought to rely on the maxim res ipsa loquitur. He was unsuccessful following a proof and Sheriff Weir agreed with the defender's submission that, as the pursuer had not proved his case on record, to rely on res ipsa loquitur in those circumstances was misconceived. The pursuer had no averments that the defect should have been identified and remedied by the defender in the exercise of reasonable care.

Sheriff Weir highlighted that, for the maxim to apply, a pursuer has to be unaware of the cause of the event giving rise to the accident. In this case, the cause of the accident was not exclusively within the knowledge of the defender. The pursuer had relied on the existence of the tear in the carpet as the cause of his fall. On that basis, he ought to have averred specific breaches and presented supportive evidence, but he had not done so.

The sheriff accepted that a fall had taken place, but was unable to conclude that it had been a result of a tear in the carpet. The case presented by the pursuer at proof was at odds with contemporaneous records. The mechanism of the accident as described by the pursuer was inconsistent with the nature of the defect and the direction of the pursuer's travel as he made his way down the staircase.