Inference of negligence - is it time to jettison the maxim res ipsa loquitur ? : feature

Some accidents occur in circumstances where the evidence of the alleged negligence of the defendant is not easily available to the plaintiff but is, or should be, to the defendant. The maxim of res ipsa loquitur is generally considered to be no more than a convenient label to describe situations where notwithstanding the plaintiff's inability to establish the exact cause of the accident the fact of the accident by itself is sufficient to justify the conclusion that the defendant was probably negligent, and in the absence of an explanation by the defendant to the contrary that such negligence caused the injury to the plaintiff (P van den Heever and P Carstens Res Ipsa Loquitur & Medical Negligence: A Comparative Survey (Cape Town: Juta 2011) at 2). In Horner v Northern Pacific Benefitial Association Hospitals Inc (1963) 382 P.2d 518 at 523 Hale J expressed the following instructive thoughts on the maxim: 'The rule is a good one, and it ought not to be muddled with over-refinement and the casuistry so frequently the by-product of overwriting and overtalking about the same subject'.