Anchor Products Ltd v Hedges [1966] HCA 70

High Court of Australia Taylor, Windeyer and Owen JJ. Anchor Products Ltd v Hedges [1966] HCA 70

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 16 Taylor J.

I agree with the observations of my brother Owen but, as one of the members of the Court which decided Mummery v. Irvings Pty. Ltd. [8] , I wish to add a few words for myself.

1. (1956) 96 C.L.R. 99.

The passage from that case which, in my view, has been misunderstood by the Supreme Court of New South Wales in Priest v. Arcos Enterprises Pty. Ltd. [5] , and properly applied by the learned trial judge from whom this appeal comes, appears towards the conclusion of a substantial judgment in which the operation of the so-called principle of res ipsa loquitur was extensively examined and it is taken from the concluding part of the judgment which was directed to exposing the absurdity which would result if it were held to be the law that, in cases where the principle is applicable, the onus of proof, in the primary sense of that expression, shifts from the plaintiff to the defendant.

1. [1964] N.S.W.R. 648.

But the nature and application of the principle had already been examined. It was pointed out that "once the cause of an accident has been established and the relevant circumstances proved, there is no further room for the operation of the principle" [9] . Then appear passages cited from the speeches of a number of their Lordships in Barkway v. South Wales Transport Co. Ltd. [1] which I do not repeat but which, I cannot forbear to point out, emphasize that "the doctrine is dependent on the absence of explanation" [2] and that, "if the facts are sufficiently known, the question ceases to be one where the facts speak for themselves, and the solution is to be found by determining whether, on the facts as established, negligence is to be inferred or not" [3] . The facts, of course, are "not sufficiently known" and are not established by evidence, whether called by the defendant or the plaintiff, which is not acceptable to the tribunal to whom the question of fact is committed.