The Facts Speak For Themselves

Res Ipsa Loquitor is a legal phrase which literally translated means “the thing itself speaks” but which lawyers more commonly translate as meaning “the facts speak for themselves”.  The formulation is most commonly used in the law of tort, where elements of a duty of care and the breach of that duty can sometimes be inferred from the very nature of an accident, even without direct evidence of how any defendant behaved.

In its logical sense, the doctrine recognises that, in the ordinary way of things, certain things happen only after certain other things occur, and accordingly the former events can be logically inferred from an analysis of the consequences, as the unknown event would be regarded as the logical prerequisite for the occurrence of the latter known or demonstrable event.

Byrne v Boadle (1863) is the English decision which is commonly credited with first applying the doctrine of res ipsa loquitur.

The facts were simple. A barrel of flour fell from a second-storey loft and hit the plaintiff on his head. However, the plaintiff could not provide direct evidence as to whether the person responsible for the barrel had breached his duty of care. On appeal the appellate court concluded that the facts of the accident itself provided sufficient circumstantial evidence to establish the breach of a duty of care. The barrel of flour was in the custody of the defendant, and whilst in his custody it rolled out and landed on the plaintiff’s head. The fact of its falling created a prima facie case of negligence, and it was now up to the defendant to show that he was not negligent.

If we are to provide a similar logical reasoning to the conduct of EirGrid and the 35000 submissions it received by 7 January 2014 regarding the GridLink project, then we notice that EirGrid have still not formally responded to those submissions. This is understandable, as 35000 submissions constitutes a lot of reading by a lot of people, who thereafter need to co-ordinate their thinking in formulating a detailed and comprehensive but consistent response to the many issues raised in the myriad of submissions. That will take a lot of time.

Once they have made this formal and detailed response to the 35000 submissions, thereafter Eirgrid need to be able to show that they have considered the import of these submissions when deciding which corridor they choose to lay the cables. We will for the moment ignore the fact that there was no consultation before the choice of the range and placement of these alternative corridors was made. That is something that An Bord Pleanala and perhaps the courts will need to consider at a later stage.

EirGrid have announced that they will make their final decision regarding their choice of corridor in June of this year.

Logically this means that EirGrid must complete their analysis of the submissions, compile an accurate summary of the concerns and issues raised in those submissions, publish this response, and thereafter demonstrate that they have allowed these concerns and issues to impact on their decision making, and finally demonstrate why they have come to their final decision in light of the issues and concerns raised in those submissions.

Given that there is no indication from EirGrid that they are even close to formulating a detailed response to the submissions, if EirGrid announce their chosen corridor in June, the logical inference is that they did not go through the process described above. It is simply not possible, in the ordinary manner of things, for an organisation (even of the scale of Eirgrid) to perform that exercise properly and thoroughly and arrive at a decision in June.

If they do announce their decision in June – res ipsa loquitor – the decision was made a long time ago and the entire consultation process was a sham.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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