Res ipsa loquitur – when does “the thing” itself “speak” on negligence in Scotland?

Ordinarily, the burden, or onus, of proving negligence in Scottish civil litigation is on the pursuer.

This means that the pursuer must establish by evidence, on the balance of probabilities (more likely than not), sufficient facts to support a finding that the defender has failed in a relevant duty to take reasonable care. However, when the maxim res ipsa loquitur applies, the onus of proof shifts from the pursuer to the defender, with it then for the defender to disprove negligence by establishing that reasonable care was, in fact, taken.

Two conditions must both be met for the maxim to apply:

1. The thing that caused the injury or damage must be shown by the pursuer to be under the exclusive management and control of the defender, and
2. The accident must be shown by the pursuer as something that in the ordinary case does not happen if those who have that management and control use proper care.

It might be that a third condition must be met, namely that the circumstances must support the pursuer not being reasonably able to know the exact cause of the accident.

The Scottish civil Sheriff Appeal Court (“SAC”) has recently considered res ipsa loquitur in two separate cases.

Thomson v Iceland Foods Ltd, SAC (civil), 18 December 2024

Findings by the sheriff at first instance, all unchallenged on appeal included that:

• A large mat was located within the defender’s store in front of the entrance / exit doors.
• The pursuer walked towards the mat and the entrance / exit doors, carrying shopping bags in both hands with her head up.
• At the point when the pursuer first reached the mat, her right foot tripped, to her injury, on a part of the edge of the mat that was raised an unknown distance above the floor level. The raised edge of the mat was not easy to see.

As the SAC records, “the sheriff considered that it was understandable that Ms Thomson could not say the distance the mat was raised, or the exact cause of her accident.” This was because she was taken to hospital immediately after the fall.

The sheriff found that res ipsa loquitur applied and that, with no evidence led for the defender, the defender was liable to the pursuer.

The defender appealed to the SAC with reference to both the conditions (1) and (2) summarised above although, during the appeal, they conceded that condition (1) was met. On condition (2), the defender’s appeal was based on the assertion that the accident could have happened without fault on the part of the defender. They further asserted that the onus should have remained on the pursuer to establish that the alleged defect was a reasonably foreseeable tripping hazard with reference to (i) any previous accidents or complaints, (ii) how long the defect had existed, and (iii) the size of the defect, noting also that although the cause of the raised edge of the mat may have been unknown, it was not unknowable.

The SAC refused the appeal, thereby upholding the sheriff’s decisions on res ipsa loquitur and liability. In addition to noting the sheriff finding the pursuer’s lack of knowledge on the detail of the defect and exact cause of the accident as understandable, the SAC give their reasons quite plainly – “there was a large mat close to the entrance doors of the store. The mat was not level with the floor. The mat had a raised edge ... The mat should not ordinarily have a raised edge if proper care were taken. A raised edge of the mat close to the store entrance would give rise to the risk of injury to customers depending on the circumstances. The defect in the mat caused the accident.”

The SAC also note that the defender had put forward a written case on their operation of “proactive and reactive systems of maintenance and inspection” and that they “had the opportunity to lead evidence to prove the defence that they complied with any duty of care incumbent upon them but decided not to do so.”

In addition to noting the scope for a defender to prove in evidence that reasonable care was taken to defeat a res ipsa loquitur argument, two further points should be emphasised with a view to restricting reliance on Thomson:

1. The SAC refer to res ipsa loquitur as “a presumption of fact depending on the facts and circumstances of each case.” It follows that the facts and circumstances of each individual case must be analysed on their own in determining whether the maxim applies, and
2. The SAC note that “cases of tripping on local authority pavements are not comparable with tripping on a mat in a supermarket store.” No reasoning or further elaboration is given on this statement but with local authorities responsible for more expansive areas than private shops, the point appears to be that trips on local authority pavements are not as susceptible to res ipsa loquitur as trips in private shops might be.

McCormack v SportsDirect.com Fitness Ltd, SAC (civil), 29 May 2025

The injury in McCormack was caused by a ragged edge on the outer rim of a weight plate, a few millimetres in size, in a private gym. At first instance, the sheriff found that res ipsa loquitur applied. The sheriff also excluded evidence from the defender on any system of inspection and maintenance because there was no sufficient basis in their written pleadings for such a defence and did not accept evidence led by the defender on the sufficiency of an equipment check on the morning of the accident. So, the sheriff found the defender liable.

On the requirement for exclusive management and control, the sheriff found this met because the defender “controlled access to the premises by it being a membership club and having staff present both at reception and on the gym floor”. On appeal, the SAC held that this analysis missed the point. The question for the sheriff should not have been about management and control of the premises but rather of the weight plate. The SAC further found that it “cannot be said that the appellant had exclusive control of the weight plate” so res ipsa loquitur did not apply and, absent proof of negligence, no liability attached to the defender.

On the assumption, contrary to the SAC's finding, that the defender did have exclusive management and control of the weight plate, the SAC would have found that res ipsa loquitur applied and that, absent proof in rebuttal of negligence, the defender would have been liable. This would, the SAC explain, have been because a “properly maintained weight would not have a chip in it that caused injury.”

Conclusion

Whether res ipsa loquitur applies and, if so, whether liability attaches to the defender are highly case-specific questions. Where there is any prospect of res ipsa loquitur applying, a defender should make sure to lead such evidence as is available in rebuttal of negligence and to have a sufficient basis in their written pleadings for such evidence.

Clyde & Co are specialists in dealing with catastrophic injury claims, and we closely monitor developments around this topic. For more on this subject, you can read all of our previous articles here, and if you have any questions about this topic you can contact Vikki Melville or any of our Scottish Catastrophic Injury and Large Loss team.