In the Court of King's Bench on March 24th, 1920, in the course of hiis judgement in an action for damages brought against a dental surgeon, Mr. Justice Bailhache laid down a principle of great importance and wide application. As it seems to be unsound, both in law and logic, it ought not to pass unchallenged, especially as the fallacy of it is not readily apparent to most people.
Where an extremely rare accident occurs in a very common operation, the onus falls on the defendant of proving that he was not guLilty of negligence -- which will otherwise be assumed. There was not a particle of evidence of any negligence of which anyone present at the operation was aware. The defendant was found to have been negligent because he could not bring any evidence beyond his own statement on oath that lhe had not been negligent. The fact that the accident had occurred was regarded as in itself establishing negligence unless some cause for the accident was established inconsistent with the presumption of negligence.
Language: en
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