Burden of proof and relevance: heavy chairs and faulty fittings

Wednesday 10 November 2004

Marcus Wischik

1 Introduction

In all cases, there are certain evidentiary burdens that must be met. The first, the Evidential Burden, is simply the provision of sufficient evidence to consider the case. The second, the Tactical Burden, is required to disprove the other party's propositions. The final and most important burden is the Legal Burden; evidence on which the case will be decided. This scenario involves all three of these burdens, as will be discussed below.

2 The position of the pursuer

In line with the maxim melior est condition possidentis vel defendentis, the pursuer cannot require the defender to disprove anything simply by raising an action. To show employer liability, Eric Shaw (hereafter ES) will need to prove negligence on the part of MDF. To meet the Legal Burden he will need to show three things: existence of a duty of care, the breach of such a duty of care, and finally that the breach caused the injury.

2.1 Showing negligence

Showing the existence of a duty of care is relatively simple; employment implies such a duty. It would be both unwise and counter-productive for MDF to attempt to disprove this. Showing that the injury suffered by ES was causally linked to MDF's alleged negligence would also be straight-forwards. Difficulty will arise in showing that MDF has breached a duty of care.

In order to establish breach, ES will need to show that the chair was either improperly maintained or badly constructed. This should be distinguished from Nimmo v Alexander Cowan & Son [1] where a statutory provision imposed a duty of making safe a workplace on the employer. ES would, in the absence of a rebuttal or a reply from MDF, probably satisfy the Legal Burden with such an argument.

In order to avoid defeat through failing to lead evidence, MDF has a Tactical Burden to counter such claims.

3 The position of the defender

MDF has a number of possible counter-arguments to fulfil this newly-created tactical burden: industry-wide standard practice, and some contributory fault of the pursuer.

3.1 Standard practice

Firstly, they could argue (in line with Brown v Rolls-Royce[2]) that all reasonable and normal steps were taken in manufacture. ES would then need to show some gross violation of standard practice by the manufacturing staff in order to switch the tactical burden once again. This would require evidence not described in the question.

3.2 Pursuer's fault

MDF could lead evidence to suggest that ES's tendency to swing on the chair is part of the reason for its collapse. This is where the missing and snapped bolts become important. ES will want to show the bolts are of improper standard, or improperly fixed. MDF will want firstly to rebut this claim, and then to show that ES caused the damage to the bolts. ES would compare the situation to A v B[3], suggesting that the swinging is too remote from the locus of the accident to be relevant. MDF, on the other hand, would cite AMEC v Beaton[4], and attempt to establish a 'nexus' of behaviour centred around the chair. This would require more than merely a link in person, place, or motivation, but rather some combination of two or more such factors. It is the repeated swinging on that single chair by that single individual that caused the weakening of the bolts, which then led to the collapse.

4 Res ipsa loquitur

Another line of argument that ES could take would be to follow cases such as Devine v Colvilles[5] and rely on the maxim Res Ipsa Loquitur. Simply put, this maxim requires that the accident be caused by an object within the control or management of the defender, and that the accident was such as would not have happened if the object were managed with proper care. This presumption can be rebutted if other non-negligent causes are at least as probable a cause of the accident[6]. In this case, such an argument would fail on two grounds: the chair was not under the requisite control of MDF, nor are the alternative explanations offered so markedly less-probable. It should be noted that MDF would probably be unable to rely on this doctrine; whilst the chair is probably exclusively within the control of ES, other explanations of the collapse are probable.

5 Conclusion

Leaving aside tactical considerations, both parties need to establish certain facts in order to reach their respective Legal Burdens. ES needs to show negligence on the part of MDF in relation to the chair. MDF would counter this by relying on standard industry practice. ES would then require evidence either that MDF has a warped perspective of industry standards, or that the person responsible for the assembly of the chair was not following them. On the other hand, MDF needs to show damage to the chair caused by the actions of ES. This would be countered by showing that chair-swinging and chair-damaging are too remote from each other to be so-linked.
[1]1967 SC (HL) 79
[2]1960 SC (HL) 22
[3]1895 22R 402
[4]1988 SLT 180
[5]1969 SLT 154
[6] Per Lord Carmont in O'Hara v Central SMT Co. 1940 SC 363 at 393
[2]1960 SC (HL) 22
812 words.
Copyright © Marcus Wischik 2004