Negligence

The burden of proof in negligence is on the plaintiff and the onus, is as in all other civil matters which is not static, does not shift on to the defendant until the plaintiff proves defendant's negligence.

The established legal position is that the onus of proving negligence is on the plaintiff who alleges it and unless and until that is proved, it does not shift. In other words where a plaintiff pleads and relies on negligence by conduct or action of the defendant, he or she must prove by evidence the conduct or action and the circumstances of its occurrence, giving rise to the breach of the duty of care. It is only after this that the burden shifts to the defendant to adduce evidence to challenge negligence on his part.
And what amounts to negligence is a question of fact not law and each case must be decided in the light of its own facts and circumstances.

Now, the said Latin maxim, res ipsa loquitur, [the thing speaks for itself], whose essential element is that the mere fact of the happening of the accident should tell its own story so as to establish a prima facie case against the defendant, W.V.H. Rogers, Winfield and Jolowicz, Tort, (London: Sweet and Maxwell, 2006) [seventeenth edition], paragraph 5-81, page 261, only operates under certain conditions. They are: (a) proof of the happening of an unexplained occurrence;(b) the occurrence must be one which would not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff; and (C) the circumstances must point to the negligence in question being that of the defendant rather than that of any other person, PSHS Management Board and Anor v. Goshwe (2012) LPELR-9830 (SC), citing Royal Ade Nig Ltd v. NOCM Co. Plc [2004] 8 NWLR (Pt. 874) 206. Oputa, JSC, further explained that: This Latin maxim is applicable to actions for injury by negligence where no proof of such negligence is required beyond the accident itself, which is such as necessarily to involve negligence...see, Batavia (1845) 2 W. Rolf 407; The Valdis (1915) 31 T.L.R. 111. 'Res ipsa loquitur' is no more than a rule of evidence affecting the onus of proof. The essence of the maxim is that an event which in the ordinary course of things, was more likely than not to be caused by negligence was by itself evidence of negligence depending of course on the absence of explanation. The doctrine merely shifts the onus on the defendant. If the facts are sufficiently known or where the defendant gave an explanation, the doctrine will no longer apply: Barkway v. South Wales Transport (1950) 1 All E.R.392.