example of the prosecutor's fallacy.
621
However, there has also been some
academic support for the decision.
622
Legal Rules
Introduction
Sometimes a legal rule enshrines a possible deductive inference, thereby
converting it from an inference
based on reason to an inference permitted or
required by law. There are two illustrations here –
the doctrine of res ipsa
loquitur and the missing witness rule.
Res Ipsa Loquitur
Res ipsa loquitur
means literally that the thing speaks for itself. In law the
maxim applies in negligence cases where two things occur. First, there is no
observational evidence of negligence. Second, it is clear from all the
circumstances that the only plausible explanation for the injury to the plaintiff
was the negligence of the defendant. In this case negligence is taken to be
proved by induction,
623
unless the defendant is able to disprove negligence.
624
A classic example was a case where a barrel of flour rolled out of an upper
floor doorway of the defendant’s warehouse and fell on the plaintiff who was
a passer by in the street below.
625
While res ipsa loquitur
is a good illustration of induction at work, it is a
strange doctrine. In any trial of issues of fact, a court uses several means of
proof including observation and induction. Thus a court may use two or more
methods to prove any one fact. This applies, of course, to the tort of
negligence. Given this it seems both, redundant and almost misleading to
introduce the formal doctrine of res ipsa loquitur. Fact finding can function
without it and invoking it may lead to confusion.
Missing Witness Rule
In Australia the missing witness rule is also generally referred to as the rule in
Jones v Dunkel.
626
The rule applies when three things happen. (i) A party fails
to call a witness who could give evidence in relation to their case. (ii) There are
no reasonable circumstances that explain or justify the failure. These
621
Finkelstein, MO & Fairley, WB (1970) "A bayesian approach to
identification evidence" 83 Harvard Law Review
p 498; Kreith, K (1976)
"Mathematics, Social Decisions and the Law", International Journal of Mathematical
Education in Science and Technology vol.7 p 315
622
Tribe (1971)
623
Scott v London and St Katherine’s Docks (1865) 3 H&C 596
624
Swan v Salisbury Construction Co [1966] 1 WLR 204
625
Byrne v Boadle (1863) 2 H&C 722
626
Jones v Dunkel (1959) 101 CLR 198
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