Action based on the negligent discharge of a duty
In general, a plaintiff need not allege in his declaration / particulars of claim or particulars of claim any matter of fact which the law presumes in his favour.
In some cases, there is, in favour of the plaintiff, a presumption that damage suffered by him/her has been due to the defendant’s negligence. This applies in cases where a thing, the property of the plaintiff, has been damaged when in the defendant’s possession. Thus, if property leased by the plaintiff has been lost or damaged while in the lessee’s possession, there is a presumption that such loss or damage is due to the negligence of the lessee and the onus is on him/her to show that the loss or damage was not due to any negligence on his part.
A similar presumption operates where a claim is brought ex contractu for the return of a leased article or its value. All that the lessor need allege is that he hired the article out, that the lessee was obliged to return it and that he failed to return the article or its value. The lessee must allege and prove that his failure to return it is due to some cause for which he is not to blame.
Similarly, a depositary (bailee) is presumed to be negligent if any property belonging to the depositor (bailor) is damaged or lost while in the bailee’s possession. In such cases, therefore, it is not necessary for the plaintiff to allege negligence in the declaration / particulars of claim but he must allege facts to show that the presumption applies.
For more go to Notes on action (trial) proceedings
