Odger's English Common Law

RES IPSA LOQUITOR. 489
should have been careful to select a competent man. But
the case is otherwise where any one holds himself out as
possessing the special skill and training necessary to the
exercise of a particular profession.
Thus, if A. sets up as a medical man and invites practice, e.g., by placing
a brass plate on his door, he will be deemed to warrant that he has under-
gone the training and has the skill and experience requisite in a medical
man ; if he has not these, he may be liable to a patient who has suffe*red
in consequence, even though he treated him with the utmost care and
diligence. A surgeon, for instance, does not undertake that he will perform
a cure, nor does he undertake to use the highest possible degree of
skill ; but he does undertake to bring a fair, reasonable and competent
degree of skill to the treatment of his patient ; and it will be for the jury
to say whether the injury complained of really was occasioned by the want
of such skill in the defendant. Where, on the other hand, a medical man
treats a patient with due care and skill, but in a special or unusual manner
out of curiosity or by way of experiment, he may be liable for the con-
sequences in the same way as if he had been negligent in the use of ordinary
remedies. 1
Negligence may be proved in an infinite variety of ways.
" The judge has to say whether any facts have been estab-
lished by evidence from which negligence may be reasonably
inferred ; the jurors have to say whether from those facts,
when submitted to them, negligence ought to be inferred." 2
The burden of proving negligence lies on the plaintiff, unless
the facts speak for themselves. If the facts of the case show
clearly that there must have been negligence, the plaintiff is
released from the burden of proving it.
Thus, where the plaintiff was walking past the defendant's shop in the
public street, and a barrel of flour fell from the window above the shop and
seriously injured him, it was held that the occurrence itself was sufficient
evidence of negligence, and cast upon the defendant the burden of proving
that the accident was not attributable to any negligence on his part. 3
Res ipsa loquitur.
Any one who employs another to do an unlawful act is
liable for any damage caused by that act. It is no defence
1 Dr. Groenvelt's Case (1697), 1 Lord Raym. 213.
2 Per Lord Cairns, L. C, in Metropolitan By. Co. v. Jackson (1877), 3 App.
Cas. at p. 197 ; and see Dublin, Wichlow and Wexford) By. Co. v. Slattery (1878),
3 App. Cas. 1155 ; Turner v. Coates, [1917] 1 K. B. 670 ; Cole v. De Trafford (A r o. 2),
rim 8] 2 K. U. 523.
3 Byrne v. Boodle (1863), 2 H. & C. 722.