United Kingdom House of Lords Decisions

LORD AVONSIDE'S OPINION.—On 26th June 1964 the pursuer in the present action was working in the course of his employment with the defenders stripping ladles in the defenders' Ravenscraig Works. He was employed on the night shift and at four o'clock on that morning he asserts that he was standing on a steel platform 25 feet above ground level, when suddenly and without warning there was series of violent explosions which were believed to come from the defenders' oxygen plant. The pursuer states that the platform on which he was standing shook violently and that he, in common with other employees of the defenders, was put into a state of fear for his safety and he then asserts that he was either cast from or jumped from the platform to the ground and as a result sustained injuries, for which he now seeks reparation.

On the evidence before me I hold it proved that at about four on that morning there was a violent explosion or series of explosions. It may be that the noise which occurred did not signify an explosion in the technical or chemical sense, but there certainly was an extremely loud and alarming noise. I further hold it proved on the evidence before me that following upon these explosions there was a general panic in the building in which it took place and that this panic infected most of the men who were about or near the neighbourhood of the explosion. This, to my mind, is not at all surprising, when one considers that the source of the explosion or the place at which the explosion took place was near a vessel which contained something in the neighbourhood of 100 tons of molten metal and it requires little thought to see the danger which men in or about the vicinity considered might affect them.

I do not accept on the evidence that the pursuer has proved that he was blown from the platform. His final position in his own statement was a firm one that he had in fact been blown off the platform because of the blast of the explosion. There is no evidence of the incident having caused any blast whatsoever and there is no evidence of damage from the blast, and the actual nature of the happening, which consisted in the escape of oxygen from an oxygen tube which caught fire, does not suggest that the blast would be the result.

The difficulty which this gives the pursuer is that, as I have stated, his alternative case was that, if he was not blown or cast from the platform, he jumped from it. In the witness-box the pursuer vehemently denied suggestions not only by his opponent but also by his own counsel that he might have jumped from the platform. He did not budge from the position he took that he was blown from the platform by the blast. Mr Brand, for the defenders, not unnaturally fixed on this aspect of the case and said that, since the pursuer had failed to demonstrate how it was that he left the platform and came to be injured, his case failed at the outset. I must say that I have considerable sympathy for that attitude, looking to the evidence which was led, but, on reflection, I have come to the conclusion that, attractive though it may be, this is too simple an approach to what happened. Looking to the balance of probability, the nature of the injury which the pursuer sustained—a broken heel—which is consistent with jumping from a height, and to the place where he was found lying on the ground, beside the ladles which were placed there, I think it is probable that he did in fact jump, or, if he did not deliberately jump, that he left the platform in his panic and fell to the ground. There is no doubt in my mind that he did in some way fall from the platform and that that fall took place in the conditions of fear which he found himself in following upon the explosion. I therefore cannot accept the defenders' primary argument that the pursuer does not approach his case with any form of proof.

It is, I think, appropriate at this stage to remark upon the pursuer's evidence as given in the witness-box and upon his demeanour there. His account of the position of the platform is that it was within some 10 feet of the vessel containing the molten metal, and this is quite plainly untrue. The height of the platform, which he asserts was some 25 feet, is overstated. He did not know which platform he was on, or at least at the time of his giving evidence was mistaken in his recollection. In my opinion he grossly exaggerated in the witness-box the events which happened. He asserts that, if he had stayed on the platform, he would have been burned by flames, that stuff was coming from all round, from the roof and from every place. The noise was a noise out of hell. Looking to the other evidence in the case, that account is, to put it mildly, picturesque. The result of hearing this evidence and observing the pursuer in the witness-box has left me with the conviction that he is not a trustworthy witness and he is entitled to little, if any, credit. It may be that this is due to an alleged nervous condition of which I would say more later. However, on that note in regard to the pursuer's credibility, I proceed on the basis, as I have stated, that he has proved that the accident happened because he fell or jumped from the platform to the ground.

The pursuer rests his case on the application of the maxim res ipsa loquitur, and, in view of the paucity of Scots citation which I was given on that point, I think it proper to dwell for a moment or two on what, in my opinion, is the correct approach to the application of that maxim. The classic definition of the conditions in which the maxim is applicable is still that to be found in the passage which has often been cited from the judgment of Erle C.J. in the case of Scott v. The London and St Katherine Docks Co., (1865) 3 H. & C. 596, at p. 601. This passage has been expressly approved by the House of Lords in its application in Scotland. It reads as follows:—

"…where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."

Mr Brand for the defenders argued that the present case was not one in which the maxim had application, and his basic point was that the circumstances of the accident did not point to negligence on the part of the defenders. He based this argument, as I understood it, on a passage which occurs in Charlesworth on Negligence, (4th ed.) para. 114, where the learned author states that one condition of the application of the maxim is that the circumstances point to the negligence in question being that of the defendant rather than that of any other person. In developing his point Mr Brand argued that, since the plant at which the explosion took place was a new one, that pointed to negligence on the part of the manufacturers, or, since the fire which caused the explosion was one of internal origin in a hosepipe, the negligence lay with the British Oxygen Company, who supplied the oxygen in the pipe, and that that oxygen carried a foreign body or particle which had caused friction and initiated the flame. In my opinion, however, both these submissions suggest that either the cause of the accident is known or that conditions have been proved to exist which could adequately account for the happening of the accident and that in either case the defenders were shown to be free from negligence. As will be seen in a moment, in my opinion neither has a cause been proved nor an adequate explanation demonstrated, but in any event the points made by Mr Brand for the defenders are rejoinders to the shifting of onus which arises when res ipsa loquitur. That does not mean that the maxim does not apply. Moreover, I would with respect doubt whether the gloss contained in the passage from Charlesworth which I have quoted is an improvement upon, or an accurate reflection of, the result of the observations of Erle C.J. which I have just quoted. In my view the circumstances of the present action fall squarely within that classic passage and the maxim does apply. I should, however, note that Mr Brand further argued as a last resort that there was no control here on the part of the defenders, because the damage had its origin in the oxygen supplied by the British Oxygen Company and that that showed third party control of the process. Again I think that there are two clear answers to that. The first is that it is not demonstrated that the oxygen carried the source of the ultimate explosion, and, secondly, the fact that power to the plant is supplied by a third party cannot, in my opinion, shift control from a manufacturer who is using the plant in his manufacturing process.

In Scotland, as I understand it, the proper approach to an application of that maxim is not in doubt. In Elliot v. Young's Bus Service, 1945 S. C. 445, Lord Justice-Clerk Cooper said this (at p. 454):

"I do not regard this as a proper case of res ipsa loquitur in the narrower sense within which that overdriven metaphor is at last coming to be confined—Inglis; Easson."

That case was a case in which a motor omnibus had run off the road into an electric standard at the side of the street and the consequences of the accident formed the subject of an investigation. The case of Inglis to which his Lordship referred is to be found in 1941 S. C., at p. 551, and the passage which the Lord Justice-Clerk had in mind, I have no doubt, is what was said by Lord President Normand at p. 559, in the following terms:

"I have in a recent case expressed my opinion on the scope and usefulness of the maxim, and I do not propose to repeat what I then said. I will only say that, in my view, this maxim has a certain utility when an accident occurs at a moment when the thing which causes the injury is outside immediate human control. When that condition is not present, it is better to avoid the expression res ipsa loquitur, and to consider whether the facts and circumstances proved are prima facie evidence of negligence and affect the onus of proof."

In that passage his Lordship was referring to an earlier case reported in the same volume, O'Hara v. Central S.M.T. Co., 1941 S C 363, and I suggest that in this case will be found the proper application of the maxim in Scots law. The Lord President in that case was concerned to discuss at some length what had been said by Lord Dunedin in Ballard v. North British Railway Co., 1923 S. C. (H. L.) 43, and in the course of the discussion said this (at pp. 377–8):

"Now there are cases where an accident happens through some object falling or breaking when no one is present and in actual physical control of the object at the time. In the part of Lord Dunedin's speech on which the respondents rely he mentions Scott v. The London and St Katherine Docks Co., where a bag of flour fell from a warehouse though it was not actually being handled by anyone at the time, and Milne v. Townsend, where a strap of a derrick crane broke, causing the derrick to fall when there was no load on it. In these cases there was no question of the negligence of some person actually working the derrick or handling the bags. And in such cases those who were responsible, as having control of the premises or derrick, in Lord Dunedin's view might escape liability if they could put forward an explanation, short of full legal proof, showing that the accident might have occurred without their negligence. I think that Lord Dunedin did not mean that nothing need be proved, but only that the proof need not establish that the accident was in fact caused in a particular way which excluded negligence. It would be sufficient if it were proved that there were conditions present which might have caused the accident without negligence on their part."

At the top of p. 379 his Lordship continued:

"In my view, therefore, Lord Dunedin's observations should be limited to these cases where the starting point of the action is some accident not immediately brought about by voluntary human action; and they do not suggest that no proof at all is required, but only that, if the conditions are proved which are adequate to account for the accident, the onus is discharged, though there is no proof that these conditions rather than some antecedent mismanagement of the defenders actually caused it."

In my view these passages explain with clarity the proper application of the maxim in our law and, as I have already indicated, the proper application of the maxim is confined to accidents which happened in the absence of immediate human control of the object which figured in the accident.

It is with that background that one turns to the defence which I understand to be advanced in this aspect of the case and that is this, quoting from the defenders' pleading:

"So far as investigations have been able to reveal, it is believed that the said escape of oxygen may have been caused by the ignition of a rubber hose supplying oxygen to the lance by particles in the flow of oxygen."

In support of that purported explanation the defenders rely upon what was said by one of their senior officials, Mr Tait, and what was said by the Safety Officer, Mr Flanagan, who was employed by the British Oxygen Company, the suppliers of the oxygen in question. I need not dwell in detail on the evidence of these two gentlemen, because both, with complete candour, said that they could not tell what had caused the accident. They could speculate on its cause, and one speculation was that the origin of the heat and consequent fire was friction caused by particles in the oxygen stream, but that is no more than speculation. There were other possible causes, and in the end of the day, as I have indicated, the real cause of the accident, or any explanation of the accident, remains a mystery. It is plain from the passages which I have just quoted from Lord President Normand that such an explanation will not do. As his Lordship pointed out, to rebut the application of the maxim does not require proof of cause but it does require proof of conditions adequate to afford an explanation of how the accident might have happened without negligence on the part of the defenders. No such proof is advanced by the defenders in this case and their defence on explanation fails.

Before leaving this point I should add that the pursuer founded in his argument before me on an English case, which from one point of view undoubtedly has some attraction, and that was the case of Moore v. R. Fox & Sons, [1956] 1 Q. B. 596. The attraction from the pursuer's point of view is that this is a case in which a workman in the course of his employment was injured by an unexplained explosion and the Court of Appeal in England held that res ipsa loquitur and that no explanation had been tendered. The Master of the Rolls at the outset of his judgment said this (at p. 607):

"It will be necessary, therefore, for me to consider in some detail the evidence produced before the judge. But I will anticipate at once my conclusions. If, as the judge thought, this was a case of res ipsa loquitur,that is, a case in which this accident having regard to all the circumstances in which it occurred, spoke for itself and led to the inference of negligence, then, with all respect to him, I do not agree with his conclusion that the defendants thereafter discharged that onus by calling four expert witnesses, the result of whose evidence was, after all, that the accident was inexplicable."

If I may be permitted to say so, that is precisely the position here and the statement of the Master of the Rolls would be in entire accord with Scots law. I consider it should be noted that later in his judgment the Master of the Rolls, in passages which I think are obiter,discussed at some length what Lord Dunedin had said in Ballard and gave his views on the application of the maxim. In examining that application the Master of the Rolls founded on two English cases. One dealt with an omnibus which had left the road, the other dealt with a ship which for some reason collided with the draining wall of a channel. I observe that, following Lord President Normand and Lord Justice-Clerk Cooper, neither of these accidents would in Scots law have been regarded as cases where res ipsa loquitur. I therefore think that it should be noted that there may be a difference, and reliance on English authorities is not only unnecessary, in my opinion, but may carry danger.

The next defence put forward by the defenders was to the effect that, whether or not the maxim applied, they have proved that they were not negligent. They have proved that they had carried out all the duties incumbent upon them, and, whatever might be the cause of the accident, it did not arise from their fault. This defence is a familiar one in Scots law, illustrated, for example, in Elliot v. Young's Bus Service, to which I have referred, and in cases long before that. However, the statement upon which the defenders properly relied is contained in Woods v. Duncan, [1946] A. C. 401. In that case Viscount Simonds (at p. 439) said this in dealing with an accusation against an individual:

"I will assume against him, though I doubt whether the assumption is justified that this is a case in which the principle of res ipsa loquitur may be applied. But to apply this principle is to do no more than shift the burden of proof. A prima facie case is assumed to be made out which throws upon him the task of proving that he was not negligent. This does not mean that he must prove how and why the accident happened: it is sufficient if he satisfies the court that he personally was not negligent. It may well be that the court will be more easily satisfied of this fact if a plausible explanation which attributes the accident to some other cause is put forward on his behalf; but this is only a factor in the consideration of the probabilities."

On this part of the case the defenders, as I understand, relied upon the assertion that they have shown that they had taken all reasonable steps by way of inspection and maintenance of the plant in question, and that, having done so, they discharged the duties to which they were liable. This raises rather a curious point, because when at an earlier stage counsel for the pursuer cross-examined one of the defenders' witnesses on the question of inspection, objection was taken by Mr Brand on the ground that no case of this nature was on record and, as I understand Mr Brand, he maintained that position in his speech before me, since I had left the question open. If I accede to Mr Brand's objection, then it appears to me necessary that I must close my eyes to all Mr Brand's evidence on the question of inspection, because he has certainly no case on record to the effect that he had a system of inspection and carried it out; and therefore, if I support his point of view, he has no defence to offer on this head of the case. I come to the conclusion that the most commonsense approach to this point is to allow all this evidence to be considered. In any event I think that the pursuer was entitled to cross on the question of inspection, because the evidence of the defenders was in any case that they did perform all the duties incumbent on them and one of those was that of inspection.

The defenders rely upon the evidence of Mr Tait and Mr Flanagan, whom I have already mentioned, and on the evidence of Mr Brown, who was the plant engineer at the plant at the time of the accident. Two of these men, Tait and Brown, are senior officials of the defenders: Flanagan was an outsider who came on the scene after the accident, and his evidence in regard to inspection is sheer hearsay, he having been given his information by a third senior official of the defenders who did not give evidence in this case. Neither Mr Tait nor Mr Brown, as one would expect, had themselves taken part in inspection of the plant in question. Mr Brown was most directly in contact with this operation, but his knowledge derived from what he saw on occasions when he was on week-end duty and from what he read in the books of report which were submitted to him in the course of his work. No evidence was led from the men whose duty it was to carry out the actual inspection, although this was a squad of five men, the foreman, two craftsmen and two labourers. No records of inspection were produced, although it appears that they are in existence. The method of inspection was a fortnightly one, as a matter of routine, and also inspection was made, it was said, of the oxygen hoses when the oxygen lances were changed. But there is no method, as I understand Mr Brown, of showing that the hose which figured in the accident was inspected on any particular occasion. The same hose conceivably could be inspected each time an inspection was made, and, that being so, there is no evidence of inspection directed precisely to the one concerned in the accident. In these circumstances I am forced to come to the conclusion that there is no evidence before me proving that proper inspections were carried out. It is obviously not enough to lay down a system of inspection; it must be accepted that the defenders were under an obligation to see to it that that inspection is carried out in an effective way. I wish to make it quite clear that I am sure that there was a system of inspection laid down and I am not saying for one moment that this accident was caused by negligence in carrying out an inspection. What unfortunately has happened is that the defenders did not put before me any evidence on which I could hold it proved as a matter of law that inspection was in fact carried out. This defence must fail.

The defenders then turned to the defence which might conveniently be called the defence of supply. On record and in their evidence they point out that the plant which figured in the accident was supplied and installed with the advice and expertise of internationally reputable firms who had a unique knowledge of what was a new process in the world market. I accept immediately that there can be no question but that this is right and that the plant could have been got from no better source nor installed with more skill. Further, the defenders point out that the actual piece of apparatus at which the explosion occurred had only been in use for a matter of some four months before it happened. There had been no trouble whatsoever before the event and there was no reason to anticipate trouble. In these circumstances the basic contention of the defenders, as I understand it, is that it was a sufficient defence for them to demonstrate these facts, that is, that the plant had been supplied to them by a reputable manufacturer and that they had no reason to anticipate that there would be any defect in such plant which would cause the accident.

It will be noted immediately, I think, that this argument proceeds on an assertion that the accident was caused by defect in plant, but, as I have already pointed out, that is in no way proved. But the matter to my mind goes far beyond that. I consider it is plain beyond argument that the defenders could not install plant which was known to them to be dangerously faulty and say that they were protected because that plant had been supplied by reputable suppliers, nor do I think that they could possibly be heard to say that they could operate plant which developed a defect known to them and still shelter under the reputation of the suppliers. From this it follows, in my opinion, that they cannot operate a plant if there be any defect in it which should have been obvious to them on reasonable and proper inspection, and it also follows that they could not rely on the defence of supply and merely fail to inspect the plant which they operated.

Not only are the defenders in this case unable to show that the defect which caused the accident was not open to inspection, supposing that the defect was one in the plant, but also they have not, for reasons which I have already advanced, shown that they carried out a proper system of inspection. Mr Brand at one stage did argue, as I understand him, that the defect in the plant was latent, but not only has he not proved the defect, and so cannot claim that it was latent, but such a defence in an action of this kind is a most important substantive defence and, if resort is to be had to it, it must be pleaded on record. No attempt to make such a case is to be found in the defenders' pleadings. On the point of inspection in this part of the case Mr Brand argued that it was enough for him to show that the plant was new and from reputable suppliers, but, for the reasons which I have given, I am not prepared to accept that that would excuse a person using the plant from the duty of inspection. The duty owed by the master to his servant is not only to supply a proper and safe plant but to maintain that plant in that condition, and maintenance of the plant in that condition must involve a proper system of inspection.

Mr Brand pressed me strongly with the decision in Davine v. New Merton Board Mills Ltd., [1959] A. C. 604. Assuming that the reasoning in that case is entirely applicable to the elaborate and extensive installations with which I am dealing in this case, a matter which I would prefer to see left open to argument, I still consider that nothing of what I have said is inconsistent with that decision of the House of Lords. Mr Brand very properly relied on a passage from the speech of Viscount Simonds at p. 626, where his Lordship approved what was said by Finnemore J. in an assizes case to the following effect:

"‘Employers have to act as reasonable people, they have to take reasonable care; but if they buy their tools from well-known makers, such as the second defendants are, they are entitled to assume that the tools will be proper for the purposes for which both sides intended them to be used, and not require daily, weekly or monthly inspection to see if in fact all is well.’ My Lords, a prolonged examination of the authorities could not have led him to a sounder conclusion."

That passage of his Lordship must be read against the background of the facts in the case of Davie, which are strikingly different from those which I am considering today. The facts in Davie were that a drift from a reputable firm of people who made these tools failed in that a particle of the metal flew off the head into the eye of the plaintiff, but it was found as a matter of fact that the accident was solely due to the excessive hardness of the metal in the head of the drift, that this was due to negligence by the manufacturers, that it was in apparently good condition and there was no negligence in the respondents' system of maintenance and inspection and that no intermediate examination of the tool between the time of manufacture and time of its use was reasonably to be expected. Now, as I have said, these facts are entirely different from the facts in the present case, and I myself cannot read Viscount Simonds in the passage which I have quoted as giving any support to the view that, if plant is got from reliable suppliers, there is no duty on the purchaser to inspect. If such were the intention of his Lordship, as I am sure it was not, it is not in accordance with what was said by Lord Morton, Lord Reid or Lord Keith, as I read their speeches. I note that the question of duty to inspect arose in Sullivan v. Gallagher & Craig, 1959 S. C. 243.

In my opinion, therefore, the defence resting on supply fails.

I now come to the last defence which was put forward by the defenders and that is summed up in the pleadings where they narrate the circumstances of the accident, as they see it, and finish by saying:

"In these circumstances, esto the occurrence resulted from the defenders' negligence (which is denied), the pursuer's accident was not a reasonable (sic) foreseeable consequence thereof."

In his speech to me Mr Brand opened this point by claiming that there was no negligence shown on the part of his clients, but this is a different approach to what is pleaded on record, which quite plainly goes on the assumption that negligence has been shown, and indeed the defence properly only arises, as I understand it, where a defender concedes negligence but says that the accident complained of is not a foreseeable result of anything he has done. It is established beyond doubt that, when one examines the area of foreseeability, one is not limited to anticipation of the exact circumstances of the accident which happened: it is enough if the accident which happened was the kind of occurrence which might reasonably be expected or anticipated to follow upon the negligent act. The cases cited to me were, first, Harvey v. Singer Manufacturing Co., 1960 S C 155, and, second, Hughes v. Lord Advocate, 1963 S C (H L) 31. I do not think that one need labour this point, but I would just quote from Lord Pearce in the latter case, because, if I may say so with respect, he puts the matter with great clarity and brevity at p. 48 of the report. His Lordship said this:

"The defenders are therefore liable for all the foreseeable consequences of their neglect. When an accident is of a different type and kind from anything that a defender could have foreseen, he is not liable for it—see The Wagon Mound, [1961] A.C.388. But to demand too great precision in the test of foreseeability would be unfair to the pursuer since the facets of misadventure are innumerable …"

As I have already indicated, I hold it proved that on the morning in question there was an unexpected and violent explosion which continued for some time. I hold that it was accompanied by some suggestion of fire. Its source was at or about a vessel containing 100 tons of molten metal; that vessel was within some 70 yards of where the pursuer was working and at a height above him. I hold it proved that there was a general panic. Now the defenders must take men as they are, and all men are not brave and wise neither are all men cowardly and foolish. Within these two limits there must be infinite variety. All men would not act with the exemplary courage which was shown by Mr Haggart. Plainly he was the exception amongst those who were present. If the pursuer did jump from the platform, which is the worst for him, in my opinion that was a reaction which, in the circumstances of this explosion, must be held as being within reasonable contemplation. If he had been a man of stronger fibre, possibly his reaction would have been different, but his reaction to the situation was not so absurd as to be beyond foreseeability. On the contrary, in my opinion it was just the reaction which might be anticipated where conditions were such as to have caused a general panic among the men at the plant.

It follows in my view that the defence of foreseeability fails.

[His Lordship then dealt with the question of damages, which he assessed at £1350, and with a point not material to this report, and concluded]—

On the whole matter, therefore, I sustain the second plea in law for the pursuer, repel the first plea in law for the defenders and make the award stated.

The defenders reclaimed, but on 8th March 1968 the Second Division (Lord Walker dissenting) refused the reclaiming motion.

LORD JUSTICE-CLERK (Grant).—The reclaimers here attack the Lord Ordinary's opinion on three main grounds. The first is that the pursuer has failed to prove that he met with his accident in the manner averred. Secondly, they say, the Lord Ordinary was wrong in holding that, on the facts here, res ipsa loquitur applied. Thirdly, they contend that, even if this is a res ipsa loquiturcase, they have discharged the onus thus placed upon them.

The reclaimers' first attack is based on a consideration, on the one hand, of the pursuer's averments as to how he came to sustain his injuries, and, on the other hand, of the situation in regard thereto disclosed by the evidence of his witnesses and himself at the proof. The pursuer's account on record is that, as a result of violent explosions from the reclaimers' air and oxygen plant, the platform on which he was standing shook violently and that he, in common with other employees, was put into a state of fear for his own safety: and that he "was either cast from or jumped from" the platform on which he was working to the ground, sustaining certain injuries as a result. There is no doubt that a violent explosion (or explosions) occurred as a result of an outbreak of fire in a five-inch-diameter hose, about 56 feet long, which conveyed oxygen from the oxygen inlet pipe (to which it was connected at the upper end) to a lance at its lower end, the oxygen being injected by means of the lance into about 100 tons of molten metal in a vessel below. The fire spread along the hose and, apart from a few feet at the lower end, the hose was virtually destroyed.

When the first explosion occurred, the pursuer was working on a platform about 15 feet above ground level and about 75 yards from the site of the explosion. He was well within earshot of the explosion but, because of intervening obstructions, he could not have seen the flames. The explosion was, however, a highly alarming one, and I agree with the Lord Ordinary that a state of panic or near panic was created and that, in the circumstances, this was a natural and foreseeable result of what had occurred.

[His Lordship then considered the defenders' contention that, in view of the pursuer's denial that he had jumped from the platform and the Lord Ordinary's rejection of his evidence that he was thrown from it, the pursuer could not succeed because he had failed to prove either version of the accident put forward on record; concluded that, on consideration of the whole evidence, it was most probable that he had jumped; and continued]—

I turn now to res ipsa loquitur, and I do so on the basis that pursuer's counsel candidly and rightly conceded that if, in this case, the "thing" does not "speak"—and speak in appropriate terms—he fails. Like Lord Shaw in Ballard v. North British Railway Co., 1923 S. C. (H. L.) 43 (at p. 56), I think that it is unfortunate that this brief Latin phrase should have been elevated to the status of a legal maxim. I agree that the test to be applied in ascertaining whether res ipsa applies here is that laid down in the well-known passage from the opinion of Erle C. J. in Scott v. London and St Katherine Docks Co., 3 H. & C. 596, at p. 601. In my opinion, however, it is only in the most exceptional circumstances that a pursuer can hope to pass that test The Lord Ordinary has quoted certain dicta of Lord President Normand in O'Hara v. Central S.M.T. Co., 1941 S C 363, and Inglis v. London, Midland and Scottish Railway Co., 1941 S C 551, and of Lord Justice-Clerk Cooper in Elliot v. Young's Bus Service, 1945 S. C. 445. These passages indicate clearly the extremely narrow ambit within which res ipsa can apply.

In deciding whether it applies in this case the first question, in my opinion, is whether the hose which ignited and its operation were at the material time under the sole management and control of the defenders. To my mind they were. It was for the defenders (through their servants) and for them alone to decide whether and when to start the operation, how long it was to continue, which hose or lance was to be used and whether and when the oxygen supply through the hose was to be turned on or cut off; and, having made these decisions, it was for them alone to carry them out. The defenders argue, however, that even if that be so, the occurrence of the explosion does not point to negligence on their part. On this matter it does not seem to me to be of consequence that this was new plant supplied by a reputable maker or that the oxygen used was supplied by the British Oxygen Company. Plant which is properly operated and properly maintained does not normally explode. If it does, that seems to me to afford reasonable evidence, in the absence of explanation from those who had sole control and management of the plant, that the occurrence arose from their want of care. If the defenders here are able to provide an explanation pointing to fault on the part of the makers of the plant or the suppliers of the oxygen, that may rebut the presumption, but it does not prevent its initial operation. In my opinion res ipsa applies here and the real issue is whether the inference raised thereby has been rebutted by the defenders.

The explanation which the defenders give on record is that "so far as investigations have been able to reveal, it is believed that the said escape of oxygen may have been caused by the ignition of a rubber hose supplying oxygen to the lance by particles in the flow of oxygen." In evidence three possible explanations were put forward to account for the explosion. As regards one of them, I need only say that it was advanced as a mere general theoretical possibility, which had in fact to be ruled out as incompatible with the particular circumstances here. Accordingly I need say no more about it. The other two were the particle explanation given on record, i.e. the ignition of the inner aspect of the hose by particles in the oxygen flow, and ignition caused by a rupture or defect in that inner aspect. The Lord Ordinary has rejected both these explanations as mere speculation. He proceeds, as I understand him, not on the basis of the credibility of Mr Tait and Mr Flanagan, but on the content of their evidence and on the view that the proof adduced does not establish "conditions adequate to afford an explanation of how the accident might have happened without negligence on the part of the defenders." (See O'Hara, 1941 S C 363, per Lord President Normand at pp. 377–379.)

The passages in O'Hara to which I have just referred are relied upon by the pursuer as authority for the proposition that, unless there be proved "conditions" existing at the relevant time in the form of either particles present in the oxygen flow or a rupture or defect in the hose lining, there are no proved facts ("conditions") upon which the opinion evidence of Mr Flanagan and Mr Tait can be based, and that their evidence, for that reason alone, is worthless. I do not think that anything that Lord Normand said was intended to achieve such a narrow and restrictive result. He himself gives an example of the type of case which he had in mind—proof by the defendants in Scott of a neighbouring explosion which might have disturbed the sack, but without proof that the explosion was the cause of the sack's fall. To my mind it was with proof of "conditions" of this sort that he was dealing and not with the amount of factual or real evidence which, in the infinite variety of concatenating circumstances, may be required in any particular case as a minimum foundation for opinion evidence. To take an extreme case, if there were uncontradicted expert evidence from ex facie truthful witnesses of high standing that a particular explosion could only have occurred as a result of the combination of "conditions" A and B, I see no reason why the Court should not be able to accept that evidence as establishing that combination as the cause or probable cause of the explosion, even although no real evidence can be found in the debris that remains (or elsewhere) to show that the two "conditions" were in fact present at the relevant time. It would accordingly be quite wrong, in my opinion, to discard the evidence of Mr Flanagan and Mr Tait, without attempting to weigh it or evaluate it, on the grounds advanced by the pursuer.

I now turn to that evidence. As I have indicated, the Lord Ordinary appears to accept them as credible and candid witnesses and it was the content of their evidence, not their demeanour, that led him to the view which he took. A first reading of their evidence gave me the strong impression, which was confirmed by further consideration, that the evidence was of substantially greater weight and value than the Lord Ordinary gave to it. Neither witness was present at the time of the accident and, by the very nature of things, neither of them (and, equally, nobody else) was in a position to state whether, at the time of the explosion, there were in fact particles in the oxygen flow or a rupture or defect in the inner lining of the hose. Both, however, were able to examine the debris, and they knew the nature of the operation which was being performed and the plant and material used to perform it. Mr Flanagan in particular had extensive experience of the problems of piping oxygen, though mainly in small-bore pipes. It is true that neither could say what was the cause of the explosion. That being so, it is hardly surprising that they should have talked of "speculating" on the cause—in the absence of certainty one must necessarily speculate. We are concerned here, however, not with what was the cause but, at the highest, with what was probably the cause. I find Mr Flanagan's categorical evidence that the most likely cause was the ignition of the inner lining by particles both creditworthy and convincing, and it is borne out by the evidence of Mr Tait. On their evidence, the alternative theory of rupture or latent defect is possible, but less likely. For that reason, and because it is not pleaded by the reclaimers, it is not necessary to consider it further. The third suggestion, which was briefly adumbrated and rapidly rejected, does not fit the facts, and no other possible explanation has been suggested either in evidence or in cross-examination. There are three horses here, one which is well ahead at the finish, the second, which loses by a distance, and the third, which, although coming under starter's orders, never in fact got past the starting gate—and it is not suggested that any other horses were eligible to run. This is a very different case from Moore v. R. Fox & Sons, [1956] 1 Q. B. 596, where the defendants' experts regarded the accident as inexplicable and the plaintiff's expert regarded it as consistent only with failure to maintain. It seems to me that the reclaimers here have shown that the most likely cause of the explosion was the presence of particles of matter in the flow of oxygen._

There is, however, a final hurdle for the reclaimers and it is this which, in my opinion, they have failed to surmount. The question is whether their innocent explanation is in fact innocent. The oxygen was supplied by the British Oxygen Company and it appears that the piping, at any rate until it reached the main distribution centre in the works, was British Oxygen Company piping. There was apparently a filter at or about the main intake there, but we are left in the dark as to who owned or controlled that filter and as to the condition it was in and the maintenance it received. It is clear that there were risks involved when foreign bodies were present in the oxygen stream and that Mr Tait, though not conversant with all the details, was aware that such risks existed. Furthermore, it seems clear that the reclaimers had control of the flow of oxygen from at least the main distribution centre to and through the hose in question.

That being so, one asks the questions, what steps did the reclaimers take to prevent, so far as practicable, the flow of potentially dangerous particles to and through the hose ? And what steps would it have been reasonable and practicable to take ? On these matters the evidence is silent, and, that being so, the reclaimers in my opinion fail. They seem to me to have given a reason but not an excuse. I accept their explanation of how the explosion happened, but I am unable to see how that explanation rebuts the presumption of negligence raised against them. It explains how the explosion probably occurred, but on exculpation, even at the best for the reclaimers, it is silent. The res has the last word as well as the first.

I would refuse the reclaiming motion.

LORD WHEATLEY .—The judgment of the Lord Ordinary was attacked by the defenders and reclaimers on a number of grounds. The facts of the case have been fully set out by the Lord Ordinary and your Lordship, and I find it unnecessary to repeat them. Defenders' counsel submitted that the Lord Ordinary's judgment was unsound in finding (1) that the pursuer had proved that the accident had occurred approximately in the manner set out in his pleadings; (2) that the ignition of oxygen in the hose and the consequential explosions or noises entitled the pursuer in the circumstances to rely on the brocard res ipsa loquitur; (3) that the defenders had failed to rebut the presumption of negligence arising therefrom by failing to prove what was the cause of the ignition and explosions or noises; (4) that, in any event, no matter how the ignition and explosions or noises were caused, the defenders had failed to prove that the occurrence had been without negligence on their part, and so had failed to rebut the presumption; (5) that the defenders had failed in their defence that they were entitled to rely on the manufacturers' having installed a safe plant; and (6) that, if there was negligence on the part of the defenders, the accident to the pursuer was a foreseeable result of that negligence. I shall accordingly deal with the points in that order.

[His Lordship dealt with point (1) and held that the Lord Ordinary was entitled to hold that on balance of probabilities the pursuer either jumped or fell from the platform; that, while "falling" was not strictly in accordance with the pursuer's record, it was in the circumstances reasonably akin to jumping; and that this point should not be regarded as fatal to the pursuer's claim in the admitted absence of prejudice to the defenders. He then continued]—

(2) A very crucial issue in the case is whether the Lord Ordinary was entitled to hold that in the proved circumstances the pursuer was entitled to invoke the presumption of negligence against the defenders flowing from the brocard res ipsa loquitur. The pursuer has perilled his case on being able to do so, and, if he has failed in this, that is the end of his case. Although the phrase res ipsa loquitur does not appear in the report of the case, the classical explanation of it is attributed to Erle C. J. in Scott v. The London and St Katherine Docks Co., 3 H. & C. 596, in a passage at p. 601, where he said:

"There must be reasonable evidence of negligence. But where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."

This has been accepted as being the law of Scotland in a long series of cases, and I need refer only to Ballard v. North British Railway Co., 1923 S. C. (H. L.) 43, and O'Hara v. Central S.M.T. Co., 1941 S C 363, by way of illustrations. There is always the primary responsibility on a pursuer to prove that the accident occurred through the negligence of the defender. In the normal case a pursuer has to condescend on a particular negligence and breach of duty on the part of the defender, but prima facie negligence can be inferred if the pursuer proves (a) that the "thing" causing the accident was under the management of the defender or his servants, and (b) that the accident was such as in the ordinary course of things would not happen if those who had the management had used proper care. In so far as this is founded not on proof of a specific act of negligence but merely on a presumption of negligence unspecified in detail but arising from a prima facie logical inference, the presumption, which is only a presumption of fact dependent on the facts of the particular case, can be rebutted if the defender tenders an explanation which renders the inference invalid. What this involves for a defender was considered in O'Hara v. Central S.M.T. Co.

I pause here to note that both parties were agreed that there was a distinction between a case where the accident was immediately brought about by voluntary human action, as in O'Hara, and the case where it was not so brought about. In the former case full legal proof is required of the defender to rebut the prima facie case of negligence which has been established against him, whereas in the latter case it would be sufficient if it were established that there were conditions present which could have caused the accident without negligence on his part. This would appear to be the effect of the opinion of Lord President Normand in O'Hara, and pursuer's counsel accepted that in this case the defenders could rebut the presumption of negligence against them (if established) on this lesser standard of proof.

The first question to be decided is whether the "thing" was under the management of the defenders or their servants. What was the "thing"? It was the air and oxygen plant, in part of which, namely the hose, the ignition took place with the resultant explosions, in other words an ignited hose which caused explosions. The res which affects the onus of proof must not only tell its own story but the story must be clear and unambiguous and point to the defender and the defender alone as the responsible party—cf. Lord Murray in Carruthers v. Macgregor, 1927 S. C. 816, at p. 823. This was the defenders' plant, operated by their servants, and under their management and control. At this stage, and for the purpose of determining this issue, I do not consider that the fact that the oxygen in the plant was supplied by a third party has any bearing, particularly when there is no suggestion that the oxygen per se was a source of danger, any more than electricity motivating a machine would have had in corresponding circumstances. This point is reinforced by the consideration that the actual cause of the ignition and explosion was not proved, and cannot therefore be shown to have been attributable to something in the oxygen supplied. This was a proof before answer, and in my opinion we must look at the whole evidence, and so surveyed I am satisfied that the Lord Ordinary was justified in holding that the "thing" at the time was within the sole management of the defenders and their servants.

The next question is whether the pursuer has proved on the evidence that the accident was such as in the ordinary course of things would not happen if those who had the management used proper care. There is no specific evidence on this point, and the pursuer's counsel rested their case on the simple proposition that prima facie oxygen in the hose would not have ignited with resultant explosions if proper care had been exercised either in the provision of safe plant or in its maintenance. It is difficult to postulate what evidence might have been led in these circumstances other than a bald assertion that such a thing ought not to have occurred if proper care had been exercised. It may be that the defenders could show that it could have occurred even if all reasonable care had been exercised, but that is a matter to be considered at a later stage and not at this point. I am of the opinion that the Court is entitled to proceed on the basis that this most unusual occurrence, the details of which I need not repeat, was something which prima facie ought not to have occurred if proper care had been taken to provide and maintain safe plant, even if the actual cause has not been established. There was nothing in the evidence to suggest that any human agency was directly involved in causing the ignition and explosions, and the case was argued on that basis. It is reasonable to make the prima facie assumption, therefore, that the ignition and explosions would not have taken place if the plant had been in proper working order and something had not gone wrong with it. Although the actual fault cannot be pin-pointed, the circumstances give rise to the prima faciepresumption that there was fault somewhere on the part of the defenders and/or their servants who had control of the plant. In these circumstances I am satisfied that the conditions required to invoke the brocard have been satisfied. This then leaves it to the defenders to show that conditions existed adequate to afford an explanation of how the accident might have happened without negligence on their part. The pursuer was accordingly entitled to rest on the presumption, and I now turn to consider whether the defenders have rebutted it.

(3) Normally the easiest way for the defenders to do this would be to show what was the cause of the accident, and then to show that this was not caused by any negligence on their part. I agree with the Lord Ordinary that the defenders have failed to prove the cause of the accident. Both Tait and Flanagan, who might be regarded as skilled witnesses adduced by the defenders, were constrained to admit that they could not say what was the cause of the accident, and that any views on this subject which they had tendered were merely speculations. Accordingly this approach must fail.

(4) That, however, does not end the matter, because it would still suffice for the defenders if they could show that there were present conditions sufficient to provide an explanation of how the accident could have happened without negligence on their part. This involves a twofold obligation, first, to show that there were conditions present which could explain the accident, and, secondly, to show that these conditions were present without negligence on their part. When there is no proof as to what caused the ignition and explosions, and all that can be offered in evidence is alternative speculative possibilities, it seems to me to be virtually impossible for the defenders to say that they have shown that there were conditions present which could explain the accident. When, as here, no facts are established on which a theory can be based, I would find it difficult to hold that a theory so unsupported is sufficient for the defenders to discharge the obligation placed upon them. It might be argued that, even in the absence of proof of conditions on which a theory was based, the intrinsic logic of the theory was such as to point clearly to the fact that these conditions must have been present, because no other explanation is feasible. I do not feel called upon to express an opinion on the adequacy of such a defence, because it certainly does not arise in this case. Of the three possible explanations of the accident which were canvassed, one was eliminated and two were left standing as speculative possibilities. One was that particles had passed through the filter or had otherwise found their way into the hose and had caused friction inside the hose, which in turn caused the ignition: the other, that the friction resulted from a torn piece of material in the internal lining. There was, of course, no evidence that either of these factors was in fact present at the time. While the former was said to be the more likely of the two, it was still a speculation, and with these two different speculative explanations in the field I cannot see how it can be said that a theory has been advanced which points clearly to conditions being present which could have caused the accident, which was admittedly not explained. I cannot, with respect, accept that the circumstances of the present case are covered by the illustration figured by Lord Normand in O'Harawhen considering the kind of proof which might be sufficient to rebut the presumption. He suggested that, for instance, in the case of Scott the defendants might have discharged the onus upon them if they had proved that there had been an explosion in the neighbouring premises which might have disturbed the sack, even if they had not proved that the explosion was in fact the cause of the sack's falling from their building. To fit this case into that illustration, the defenders would have required to prove that there were particles in the hose, even if they could not prove that in fact the particles had caused the explosion, although they could have caused it. This in my opinion they have not done._

Even if it had been otherwise, I do not consider that the defenders have shown that the conditions, if they did exist, existed without negligence on their part. It seems to have been assumed that the ignition took place as a result of something inside the hose, but the destruction of the hose by fire precluded any examination which might have revealed an outside cause which might have been observed and averted by the exercise of reasonable care. On the basis that the ignition took place as a result of something which occurred inside the hose and not outside, it could be argued that the evidence demonstrated that no reasonable inspection would have revealed the presence of particles or of a piece of torn internal lining throughout most of this very long hose, and that it was in such an area that the ignition occurred. This is taking the evidence at its most favourable for the defenders, but, so far as the torn lining theory is concerned, this is not the most likely explanation tendered by their experienced witnesses, and, in contradistinction to the "particle" theory, there is no record for it. In any event I do not see how it can be said that it was a proper inference from the evidence as a whole that this theory established the presence of a condition, namely the torn lining, which provided a reasonable explanation of the accident, when the very presence of a competing theory more favoured by these witnesses seems to outrival it. Conversely, the lining theory does not leave the particle theory as the only feasible explanation. The co-existence of the two different explanations does not provide alternatives either of which may be deployed but detracts from the effectiveness of each. I am accordingly of the opinion that the defenders fail at this point.

In any event, looking at what may be described as the more likely explanation and the one for which there is a record, I do not consider that, even on the assumption that the presence of particles in the hose could reasonably be inferred, the defenders have shown, even on the limited standard of proof, that their presence inside the hose could have been there without negligence on their part. On the basis that the particles were carried into the hose in the oxygen supplied by a third party, and did not get in during the changing of a lance or other operations carried out on the hose by the defenders' servants, it has not been established that reasonable care on the part of the defenders could not have prevented particles from getting there. The defenders, on the evidence of Tait, the manager of the plant, must be deemed to have known of the possibility of particles of matter causing ignition if they found their way into the hose. Even accepting that inspection of the hose for the presence of particles was impracticable, and that it was more likely that the particles were carried in the flow of oxygen than that they had been lodged in the hose for some time, that is by no means the end of the matter. There was a filter fitted to the supply pipe, and, even if this had been fitted by the company supplying the oxygen, which seems to have been assumed rather than proved, it was situated within the defenders' premises and the oxygen passing through was being fed up to the plant where it was being used. In these circumstances I cannot accept that there was no duty on the defenders, in the knowledge of the danger referred to, to satisfy themselves that this filter, which was an integral element in the safe working of their plant, and was in constant use, was, so far as reasonably practicable, sufficient to exclude dangerous particles, and, if not, to take such steps as were reasonably practicable to see that there was one which was. If that be so, it was their duty to satisfy themselves that the filter within their premises was maintained in efficient working order, whether this had to be done by themselves or whether they had to call upon the suppliers to do it, or to have it replaced by an efficient one, if this was reasonably practicable, if there was reason to believe that it was not fully effective._

There is no evidence that the defenders applied their minds or actions to any of these matters, and the presence on the defenders' premises of representatives of the companies responsible for the installation of the plant (but not the supply of oxygen) cannot be said to be an exclusion of responsibility on the defenders to discharge their duty to take reasonable care in this regard. It is true that Flanagan, the safety officer of the oxygen suppliers, stated that as a result of this accident his company had decided that the only way to prevent ignition danger from particles was to insert inert plastic linings in the hoses, but he did not explain why the filter, properly maintained, could not exclude all dangerous particles at that point, and he had no knowledge of the condition of the filter. There was no evidence as to the size of the particle, or its nature, or where it had entered the stream of oxygen, nor in the circumstances could there be any such evidence. According to Flanagan, particles of different sizes and natures might get into the stream of oxygen at different points right along the line, and, unless it be accepted, which I am not prepared to do, that the defenders had no legal obligation to do anything about this danger, which was known to them, then I cannot see that they have discharged their duty when they adduced no evidence that they either applied their minds to it, or did anything about it. I therefore hold that it has not been established that the exercise of reasonable care on the part of the defenders could not have prevented the existence of the conditions which on this presumptive argument caused the accident.

The defenders then sought to establish that, on the basis that an internal inspection of the hose was really impossible, they had exercised all reasonable care by having a system of inspection of, inter alia, the outside of the hose regularly carried out. I agree with the Lord Ordinary that, while they proved that they instituted such a system of inspection, they failed to prove by the proper available evidence that it was properly carried out. That is the end of the point, which in any event was misconceived on the basis that this was all that could reasonably be expected of them in the circumstances.

(5) A separate argument was advanced by defenders' counsel to the effect that, since they had bought the plant from reputable manufacturers, who installed it, the defenders were entitled to rely on the plant being sufficient and safe for its purposes. This argument was based on the case of Davie v. New Merton Board Mills Ltd., [1959] A. C. 604, and was deployed before the Lord Ordinary. I content myself with agreeing generally with the reasons advanced by the Lord Ordinary for not accepting the decision and reasoning in that case as being applicable to the circumstances of the present case. In particular I find it difficult to see how they can be said to apply to a case in which the cause of the accident has not been established, and it cannot therefore be shown that the accident was caused by a defect or danger which could not have been discovered by reasonable inspection between the point of installation and the accident.

(6) The final point presented in argument was that, even if there was negligence on the part of the defenders resulting in the ignition and the explosions, it was not reasonably foreseeable that an accident such as that which befell the pursuer would occur. I do not regard this as a sound point. It has to be considered against what has been held to have happened to the pursuer. The issue, therefore, is not whether it was reasonable for the defenders to anticipate that, if the ignition and explosions took place, the pursuer would be blown off a platform some considerable distance away at a different level, but whether it was reasonable to forsee that, if the ignition and explosions took place in the immediate vicinity of 100 tons of molten metal, with results which different workmen in the area might not be able to assess or take time to assess in the excitement of the moment, there might be created a situation in which the workmen in the area might decide to run clear of a possible danger in a manner which, allied to the occurrence itself, might cause a panic not only among those in the immediate vicinity but among others in the area who might be infected by the general excitement. It is clear from the evidence that this is what in fact occurred, and if that was something reasonably to be foreseen, as I think it was, then it was equally foreseeable that workmen caught up in the panic might jump from platforms or fall from platforms in the neighbourhood in their haste to get clear of what they conceived to be the danger area. I am satisfied, therefore, that the Lord Ordinary was justified in holding, under reference to cases like Hughes v. Lord Advocate, 1963 S C (H L) 31, that this was the kind of occurrence which might reasonably have been expected or anticipated to follow on the defenders' negligent act.

I am accordingly of the opinion that the attacks on the Lord Ordinary's judgment fail; that the Lord Ordinary reached the correct result; and that the reclaiming motion should be refused.

LORD WALKER .—I have the misfortune to differ from your Lordships, but I do so only on the critical question whether the maxim res ipsa loquitur is applicable.

This case is at least an unusual one for the application of the maxim. There is here a chain of cause and effect of which I would summarise the links as follows:—(1) the oxygen hose accidentally burst near the converter, which contained a hundred tons of molten metal; (2) the immediate effect of the burst was a spectacular and terrifying display of fire and sound without material damage save to the hose itself; (3) the workmen on a lower level mistakenly, but not unreasonably, thought the molten metal was about to spill among them and so sought safety in precipitate flight; and (4) one of them in hurriedly descending from his platform sustained physical injuries for which he now claims reparation.

The Lord Ordinary held that the maxim did apply because he thought the circumstances of the case fell within the passage which he quotes from Scott v. The London and St Katherine Docks Co., 3 H. & C. 596. Inferentially he must have thought that here was an accident "such as in the ordinary course of things does not happen if those who have the management use proper care." (The italics are mine.) It is not quite clear from his opinion what precisely he regarded as being the accident or the res ipsa, but I think it was the bursting of the hose. In supporting the Lord Ordinary counsel contended that the fire and sound formed the res ipsa, and that such a phenomenon does not occur if care is exercised. However, the fire and sound were merely an effect of the bursting of the hose, and they occurred irrespective of whether the hose burst through negligence or without negligence. So if the hose burst without negligence, it would not be right to blame the defenders for its effect. In my opinion therefore the Latin maxim cannot apply unless the accidental bursting of the hose does, as res ipsa, speak of negligence.

It is, I think, plain that the mere happening of an accident is not sufficient to shift the onus. So much appears inferentially from the passage from Scott's case quoted by the Lord Ordinary. And it appears more explicitly from the next paragraph in the note by Erle C. J., where he records that all the judges assented to the principles laid down in the cases cited for the defendants. One of these principles was, I think, that the mere proof of an accident does not throw upon the defendant the burden of showing the real cause of the injuries. But what the majority found in the notes of evidence to indicate negligence is not disclosed. In Macfarlane v. Thompson, 12 R. 232, a workman had been injured by the unexplained slipping of an iron casing which had been resting on the top of a boiler. The Court (at p. 235) took the view that, as the cause of the accident was unexplained, the employer was not called upon to answer for its consequences, and the Lord Justice-Clerk required that, in order to shift the onus to the employers, there should be proof that some defect in the plant caused the accident, even though the exact nature of the defect was unknown. In Moore v. R. Fox & Sons, [1956] 1 Q. B. 596, the Master of the Rolls, with specific reference to the Latin maxim, put the matter in general terms with which I would respectfully agree. At p. 614 he said:

"It must, as I venture to think, always be a question whether, upon proof of the happening of a particular event, it can with truth be said that the thing speaks for itself. The event or ‘thing’ may, or may not, produce that result. Not every accident has, without more, that effect. If, upon a closer analysis of the happening and its circumstances, it does not in truth appear fairly to follow that the proper inference is one of negligence, then the case is not one of res ipsa loquitur at all."

I turn now to what is known about the circumstances of the bursting of the hose in order to see if they yield an inference of negligence. The hose was a flexible one, 56 feet long and of five-inch bore. It formed part of a specialised plant for the production of basic oxygen steel under an Austrian invention of 1952. The plant was made to the design of the inventors, a firm of international experience and repute. It was manufactured by that firm or by their licensees in England. It was first operated in the United Kingdom in January 1964 and the hose in question had then a recommended lifetime of one year. When it burst in June of the same year, it certainly was not an old one such as might have suffered the defects of age. There was, as the Lord Ordinary says, a system of inspection laid down, and it cannot be said that any negligence in carrying out inspection was a cause of the accident. Nor does there appear to have been anything unusual about the way in which the plant was operated. The probable immediate cause of the accident was ignition occurring internally, but beyond that there is only conjecture. I agree with the Lord Ordinary that the explanation of the accident remains a mystery. But I do not think the circumstances suggest negligence on the part of the defenders. I should add that I do not regard judicial knowledge as assisting a solution. There is some evidence from Mr Flanagan, a safety officer employed by the British Oxygen Company, that their very much smaller oxygen tubes had sometimes suffered internal ignition from obscure causes. In my opinion, the behaviour of oxygen hoses lies outside the sphere of judicial knowledge. Therefore to say, without evidence, that an oxygen hose does not burst in the ordinary course of things, if those who have the management use proper care, would to my mind be a mere guess—a conjecture rather than an inference. The Lord Ordinary appears to have thought that the failure to explain the accident meant that the defenders had failed to discharge an onus which had shifted to them. I, on the contrary, think it means that the onus never shifted from the pursuer. The res ipsa does not speak of negligence and therefore the maxim does not apply. As the respondent's case was perilled on the applicability of the maxim, I would allow the reclaiming motion and assoilzie the reclaimers.

LORD MILLIGAN .—In this case the Lord Ordinary has held that the respondent had established that he had suffered injury as a result of fault on the part of the appellants, and has awarded damages. The appellants have now submitted that the Lord Ordinary was wrong in finding that the respondent's injuries were occasioned by fault on their part. Neither side challenged the Lord Ordinary's assessment of damages. Your Lordships have already referred to the circumstances in which the pursuer and respondent is said to have been injured and I do not find it necessary to repeat what has already been said.

The first ground upon which the judgment of the Lord Ordinary is challenged is that he has held that the respondent has established that he was injured in the way alleged by him on record. [His Lordship considered this point; expressed the opinion, based on a consideration of the whole evidence, that on balance of probability the pursuer jumped from the platform; and continued]—The respondent may not have jumped deliberately, but the fact remains that on the occurrence of the explosion he left the platform suddenly and ended up on the ground below. I am also satisfied that it was the explosion, or, more correctly perhaps, the bang, that caused him to leave the platform precipitately. In my opinion the Lord Ordinary was right in rejecting the appellants' submission that the respondent had not established that he had been injured in the way alleged by him on record.

Having held that the respondent had established that he had been injured in circumstances consistent with his record, the Lord Ordinary went on to find that this was a case in which the maxim res ipsa loquitur applied, and his decision is again challenged by the appellants.

This maxim has for at least 100 years caused considerable difficulty not only in regard to the circumstances in which it falls to be applied but also in regard to the way in which the presumption which underlies it can be redargued. Its complexities and uncertainties earned it the distinction of a long article by T. Ellis Lewis, happily entitled "A Ramble with Res Ipsa Loquitur," in Vol. 11 of the Cambridge Law Journal, at p. 74. Although the phrase res ipsa loquitur appears to have been used by Pollock C.B. in the course of the argument in Byrne v. Boadle, (1863) 2 H. & C. 722, it has generally been accepted both in Scotland and in England that the circumstances in which it is applicable are those referred to by Erle C. J. in Scott v. The London and St Katherine Docks Co., 3 H. & C. 596, although the phrase itself is not to be found in any of the judgments in that case. At p. 601 the learned Chief Justice said:

"There must be reasonable evidence of negligence. But where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."

It is, I think, also clear that the maxim will only apply where the accident has not been immediately brought about by voluntary human action, as was the case in, for example, O'Hara v. Central S.M.T. Co., 1941 S C 363. In the latter type of case there may be a prima facie case of negligence, and the onus of displacing the presumption is greater than it is in a case where res ipsa loquitur applies. It has also been said that, before the maxim can apply, the story which is told must be clear and unambiguous and that it must point clearly towards the defender (see Carruthers v. Macgregor, 1927 S. C. 816, per Lord Murray at p. 823;Mars, 1940 S C 202, per Lord Moncrieff at p. 209).

The appellants submitted that the respondent had not established the existence of a number of the conditions which were essential to the application of the maxim. In the first place, it was said, there was no reasonable evidence of negligence; there was no evidence that the explosion would not have taken place if care had been taken. I cannot accept this contention. An explosion, such as that which occurred in the appellants' works, may occur as the result of a pure accident, but the fact that it did occur provides "reasonable evidence of negligence."

It was further submitted on behalf of the appellants that the "thing" had not been shown to be under the management of the appellants or their servants. In a case where the cause of the incident which results in injury to a pursuer cannot be positively established, and it is possible only to offer an explanation of what might have happened, it is by no means easy to say under whose management the "thing" was. In the present case the "thing" was, in my opinion, the fire and the bang, and it is necessary with a view to deciding who had the control of the elements which occasioned the fire and the bang to consider what these elements were. The appellants' only theory on record is that "the said escape of oxygen may have been caused by the ignition of a rubber hose supplying oxygen to the lance by particles in the flow of oxygen." In evidence another possibility was put forward, involving the breakdown of the lining of the hose, but the appellants have no record for such a theory and in any event it would not be of much avail to them when questions of maintenance came to be considered. It is established that, while the oxygen was supplied to the appellants by the British Oxygen Company from a source outside the appellants' premises, any particle (if there was one) would be inside the appellants' premises before it could have caused the ignition referred to by the appellants. It would, moreover, have passed through the filter referred to by Mr Flanagan, which was fitted to the end of the British Oxygen Company's line within the appellants' premises. In such circumstances I am of opinion that the only reasonable conclusion is that the appellants had the management and control at the vital moment of the only element which it is suggested caused the fire and the bang, and that the appellants' submission that the "thing" was not under their management falls to be rejected.

The next point taken by the appellants was that the res did not speak clearly and unambiguously against the appellants. They had not supplied oxygen in which there may have been a particle. That is no doubt true, but the fire and the bang occurred in their hose and in their premises, and, so far as the respondent is concerned, they are the people towards whom an accusing finger should prima facie be pointed.

In my opinion the Lord Ordinary was right in holding that the maxim res ipsa loquitur applied.

This, however, is by no means the end of the case, as the appellants submit that, if contrary to their primary submission res ipsaapplies, they have discharged the obligation thrust upon them by showing that the accident could have happened without there having been any negligence on their part, and that, as the respondent's case is dependent solely on the application of the maxim, they are entitled to be assoilzied.

The difficulty in this part of the case is to know how much a defender has got to do to overcome the presumption of negligence with which the maxim has saddled him. In Scott Erle C.J. said that a defendant had to give an "explanation," and later authorities have attempted to define what this involves. In O'Hara the Lord President (Lord Normand), after referring to what had been said by Lord Dunedin in Ballard v. North British Railway Co., 1923 S. C. (H. L.) 43, said (at p. 378):

"I think that Lord Dunedin did not mean that nothing need be proved, but only that the proof need not establish that the accident was in fact caused in a particular way which excluded negligence. It would be sufficient if it were proved that there were conditions present which might have caused the accident without negligence on their part."

It is important to note that Lord Normand referred to there being "conditions present." By this I understand him to mean that it is not enough for a defender to put forward a theory, however plausible, unless he is able to establish a basis of fact on which to hang his theory.

The explanation which the appellants offer in the present case is, as they have averred, that there may have been particles in the flow of oxygen. While there is no evidence to negative the possibility of there being particles in the flow of oxygen, or to negative the evidence that, if there were particles, a fire might be started, there is little evidence to suggest that it was reasonably likely that particles would be present in the flow of oxygen, and I accordingly have difficulty in finding any basis of fact on which the appellants can hang their theory. I do not find in the evidence of Mr Tait any great enthusiasm for the appellants' explanation. He said that, although he had not come across any evidence to indicate that foreign bodies were entering the oxygen supply, it was possible that the ignition might have been caused by a foreign body, but he agreed that this was no more than a speculation. Mr Flanagan, who is a Regional Safety Officer in the employment of the British Oxygen Company, said:

"The main causal factor in this type of incident is generally suspended particles in the gas stream creating frictional heating effects within the pipeline within the flexible hose, and these heating effects give rise to a breakdown in the hose line."

He went on to say, however, that he would not have expected anything to be in the hose at such a late point in time, some months after the original installation was put in. He said that, although in a case such as the present where most of the evidence is destroyed, the cause was of necessity in the area of speculation, the particles theory was the most likely. Mr Flanagan also said that he was unable to exclude the possibility that combustion was caused by the internal lining of the tube breaking down, but the appellants, as I have said, have no record for this explanation.

While I am perfectly prepared to hold that it has been proved that theoretically a fire could be caused in a hose as the result of the presence of a particle or particles, I cannot find any evidence to show that there were present conditions which might have brought this about in the present case. The Lord Ordinary has held that the appellants' explanation is mere speculation and I do not feel able to disagree with his view.

Even if it had been possible to accept as adequate the appellants' explanation of how the fire may have been caused, they would still have had to show that there was no negligence on their part. They seek to do this in a number of ways. They say that they were operating brand new plant, which had been purchased from the most reputable suppliers, and that in such circumstances they cannot be held to have been negligent. The difficulty from the appellants' point of view in this contention is that they do not aver that the plant was in any way defective. They do not aver that there was, for example, an inadequate filter. The appellants further submitted that they had taken all reasonable steps to have the plant inspected, and that in the circumstances they had done all that could reasonably be expected of them. The Lord Ordinary was not prepared to accept as sufficient the somewhat sketchy evidence led by the appellants of their system of inspection and how that system was carried out, and again I cannot say that the Lord Ordinary was wrong. The appellants finally maintained that the accident to the respondent was not reasonably foreseeable. In this connection it is to be noted that the appellants' averment is not that the fire and noise were not reasonably foreseeable but that it was not reasonably foreseeable that the respondent would be injured as a result of the fire and noise. I have little difficulty in rejecting this line of defence. It is proved that there was what the Lord Ordinary describes as an "unexpected and violent explosion" and I find it impossible to say that the appellants should not have anticipated that, if there was such an occurrence, their employees might take what almost amounted to panic measures to get out of harm's way. This is what they in effect did and in my opinion this was a very natural result of the fire and noise, and ought to have been foreseen by the appellants.

It follows from what I have said that the reclaiming motion fails.

The defenders appealed to the House of Lords, and the case was heard on 23rd, 27th and 28th January 1969.