Polski Dzial The recently published decision of the All-Scotland Sheriff Personal Injury Court in the case of Tracy Thomson v Iceland Foods Limited [2024] SAC (Civ) 50, helpfully considers the common law doctrine of res ipsa loquitor and its application.
The Latin phrase res ipsa loquitor translates as ‘the thing speaks for itself’. In the context of a personal injury claim, it means that negligence can be implied simply from the fact the accident occurred. In other words, negligence can be proven indirectly. For this maxim to apply, certain requirements must be met.
As quoted in the Thomson judgment, The Law of Delict in Scotland (2022) states:
“For res ipsa loquitor to apply, the pursuer is required to show that:
- The thing which caused damage was under the defender’s management; and
- The accident was of a type that does not ordinarily occur if proper care is taken.
The inference of negligence is then accepted only if the defender can offer no explanation consistent with absence of fault on the defender’s part.”
The circumstances of the accident were not in dispute. Ms Thomson had been shopping at an Iceland store on 20th September 2021. After going through the checkout with her shopping, she made to leave the store. There was a large mat at the front of the entrance/exit doors and Mrs Thomson walked towards this. When she reached the mat, her right foot caught on a raised edge. She then fell forward into a display, dropped the shopping bag in her right hand and hit her left arm on the door, landing face down.
Following the accident, Ms Thomson raised a court action against Iceland Foods Limited, alleging they were in breach of section 2(1) of the Occupier’s Liability (Scotland) Act 1960.
Her case was successful, and she was awarded £9,500 at first instance. Iceland appealed on the basis the Sheriff had incorrectly found that res ipsa loquitor applied.
In bringing the appeal, Iceland argued that the Sheriff should not have inferred negligence as the fact Ms Thomson tripped was not enough in itself to allow him to do so. They argued that, for res ipsa loquitor to apply, it must be shown that the accident would not have occurred if the Defender had taken proper care. They argued that a key element of negligence is reasonable foreseeability. As there was no evidence led on prior accidents or complaints, the length of time the defect had been present or its size, the alleged defect was not a reasonably foreseeable risk.
In response, Ms Thomson argued that the Sheriff’s findings in fact were enough to infer that Iceland were negligent. It was reasonable in the circumstances for her to expect there would not be a tripping hazard and the application of res ipsa loquitor was appropriate in the circumstances. It is important to note that Iceland did not lead their own evidence to dispute Ms Thomson’s version of events. She argued they had the opportunity to lead evidence to show it was not reasonably foreseeable but had not done so.
The Sheriff refused the Defender’s appeal, finding that it was reasonable to infer that the premises were under Iceland’s management and therefore the first element of res ipsa loquitor was satisfied. The evidence led by Ms Thomson was sufficient to show there was a raised edge of the mat and this could potentially pose a risk of injury. If proper care had been taken, the mat would have been level with the floor and so the second element was also satisfied. The Sheriff noted that Iceland alleged in their written pleadings that they had complied with their duties but had failed to lead any evidence to support this and refute the assumption of negligence. Therefore, res ipsa loquitor had correctly been applied and a breach of duty was established.
For assistance with a personal injury claim, please contact Chloe Neil – chloe.neil@dallasmcmillan.co.uk.