RES IPSA LOQUITUR

PROPOSAL SUBMITTED BY
NAME: RAHUL KUMAR BARNWAL
ROLL NO: 2033
SEMESTER: FIRST
YEAR: 2018-2023
COURSE: B.B.A.LLB (HONS)
PROPOSAL SUBMITTED TO

Mrs. SHUSMITA SINGH

FACULTY OF LAW OF TORTS

LAW OF TORTS

AUGUST 2018

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA-800001

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 ACKNOWLEDGEMENT

Writing a project is one of the most significant academic challenges I have ever faced.
Though this project has been presented by me but there are many people who remained in
veil, who gave their all support and helped me to complete this project. First of all I am very
grateful to my subject teacher Mrs. SHUSMITA SINGH without the kind support of whom
and help the completion of the project would have been a Herculean task for me. She donated
his valuable time from his busy schedule to help me to complete this project and suggested
me from where and how to collect data. I am very thankful to the librarian who provided me
several books on this topic which proved beneficial in completing this project. I acknowledge
my friends who gave their valuable and meticulous advice which was very useful and could
not be ignored in writing the project.

Rahul Barnwal
Roll No. 2033
1st Semester
B.B.A., LL.B (Hons)

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 CERTIFICATE

I, hereby, declare that the work reported in the B.B.A., L.L.B (Hons.) Project
Report titled “Res ipsa Loquitur ” submitted at CHANAKYA NATIONAL
LAW UNIVERSITY, PATNA carried out under the guidance and supervision
of Mrs. SHUSMITHA SINGH and the same has not been submitted
anywhere for any purposes whatsoever.

Rahul Kumar Barnwal

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Table of Contents

TOPIC
PAGE NO.

1. Aims and objective………………………………………………. Page.5

2. Research methodology……………………………………………page.5

3. Introduction………………………………………………….……Page.6

4. Origin of Res ipsa Loquitur………………………………………Page.7

5. Elements od Res ipsa Loquitur………………………………...Page.7-8

6. Res ipsa Loquitur Vs. Prima Facie ……………..……………..… Page.8

7. Essentials and Application of Res Ipsa loquitur…………..….Page.9-10

8. Uses of Maxim in Negligence ……………………………..…... Page.11-13

8. Analysis Of cases In Res ipsa Loquitur………………………Page.14-18

9. Conclusion………………………………………………………...Page.19

10. Bibliography…………….………………………………………Page.20

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 Aims and Objective

This project focus on working of financial service provide following some

landmark decision other authorities intent to clarify what kind of situation make
for a valid standing of Res ispa loquitur in court. , You become the plaintiff, or
injured party, and the car driver is considered to be the tortfeasor or defendant,
the negligence.

Research Methodology

1. Whether doctrinal or Non doctrinal research?

My research is blend of doctrinal.
Doctrinal in the sense that I have collected theoretical material from different
sources such as text books and internet sources.
2. Whether primary or secondary?
Now coming on whether my research is primary or secondary. Our research is a
totally based on secondary material as it is totally based on text books, articles
and internet research ie. Secondary source
3. Analytical or Descriptive?
I have tried to be analytical in writing this project but nevertheless I have
included Cases and theory related to negligence which is applicable to Res ipsa
loquitur from different sources and when considered suitable

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 INTRODUCTION
Res Ipsa Loquitor is a legal term which means ‘the thing speaks for itself.’1 It is a very
popular doctrine in the law of torts; it is circumstantial or indirect evidence which infers
negligence from the very nature of the accident that has taken place and there is the absence
of direct evidence against the defendant. Res Ipsa Loquitor is applied when it can be said that
without the defendant being negligent, the accident would not have happened.
Certain accidents happen in a manner which is unexplained but carries a high probability of
negligence and although there is no direct evidence regarding the defendant’s conduct the
court is permitted to draw an inference of negligence by applying the doctrine of res ipsa
loquitur
1. Res ipsa loquitur means that the facts speak for themselves and is regarded as a method by
which a plaintiff can advance an argument for purposes of establishing a prima facie case to
the effect that in the particular circumstances the mere fact that an accident has occurred
raises a prima facie factual presumption that the defendant was negligent. How cogently such
facts speak for themselves will depend on the particular circumstances of each case
2. In this chapter the origin and development of the doctrine is traced and the general
requirements for the application of the doctrine, the nature –and effect of the application of
the doctrine on the onus of proof and the nature of the defendant’s explanation in rebuttal are
expounded. A detailed exposition of the application of the doctrine to medical negligence
cases in particular, follows thereafter, with reference to case law and legal opinion. The
judgment in Van Wyk v Lewis2 which had the effect that the doctrine cannot find application
to medical negligence cases, is examined in detail and also subjected to critical analysis. This
chapter is concluded with a synopsis of the legal principles which are applied when the
doctrine is invoked generally.

History
1
Available at  http://dictionary.law.com/Default.aspx?selected=1823
2
Van Wyk v Lewis

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The term comes from Latin and is literally translated "the thing itself speaks", but the sense is
well conveyed in the more common translation, "the thing speaks for itself." The earliest
known use of the phrase was by Cicero in his defence speech Pro Milone. The circumstances
of the genesis of the phrase and application by Cicero in Roman legal trials has led to
questions whether it reflects on the quality of res ipsa loquitur as a legal doctrine subsequent
to 52 BC, some 1915 years before the English case 3 and the question whether Charles
Edward Pollock might have taken direct inspiration from Cicero's application of the maxim in
writing his judgment in that case.
Accidents happen all the time and many a time, it is because of someone’s negligence. And in
the law of torts, to prove somebody’s negligence, the burden of proof is on the plaintiff, that
is, someone who is the victim of the tort. It becomes really difficult to prove that the
defendant was at fault and also to gather evidence against his act or omission. Therefore,
keeping this in mind, the principle of Res Ipsa Loquitor came into force under which a
plaintiff can use circumstantial evidence to establish negligence.

Elements of Res Ipsa Liquitor

Before claiming the tort of Res Ipsa Loquitor, a plaintiff must meet a few requirements to
claim compensation

1. The injury is of the kind that does not ordinarily occur without negligence or is
uncommon in the course and nature of said act.
2. The injury is caused by an agency or instrumentality within the exclusive control of
the defendant.
3. The injury-causing accident is not by any voluntary action or contribution on the part
of the plaintiff.
4. The defendant's non-negligent explanation does not completely explain plaintiff’s
injury.
The first element may be satisfied in one of three ways:
(a) The injury itself is sufficient to prove blatant or palpable negligence as a matter of law,
such as amputation of the wrong limb or leaving instruments inside body after surgery.
(b) The general experience and observation of mankind is sufficient to support the conclusion
that the injury would not have resulted without negligence, such as a hysterectomy (removal
of the uterus) performed when the patient consented only to a tubal ligation (clipping of the
fallopian tubes for purposes of sterilization).
(c) Expert testimony creates an inference that negligence caused the injury, such as an expert
general surgeon testifying that he has performed over 1000 appendectomies (removal of the
appendix) and has never caused injury to a patient's liver. He also does not know of any of his
surgeon colleagues having inflicted injury to a patient's liver during an appendectomy. The
testimony would create an inference that injuring the liver in the course of an appendectomy
is negligence.

3
Byrne v Boadle2 Hurl. & Colt. 722, 159 Eng. Rep. 299, 1863

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The second element is discussed further in the section below. The third element requires the
absence of contributory negligence from the plaintiff. The fourth element emphasizes that
defendant may defeat a res ipsa loquitur claim by producing evidence of a non-negligent
scenario that would completely explain plaintiff's injury and negate all possible inferences
that negligence could have occurred.

Development of the principle

The roots of the principle are in common law countries, which are England in the case
of Byrne v. Boadle4. The facts of the case were that in 1863 in England, a barrel of flour fell
from a two-storey building and hit the plaintiff’s head, but the plaintiff could not acquire
direct evidence against defendant to allege negligence on his part. But the court held the
judgment for the plaintiff and opined that the circumstances were different in this case, and
there could be a presumption of negligence.
 

Distinction between Res Ipsa Loquitor and

prima facie
Prima facie evidence just tends to prove if a certain circumstance could or could not have
occurred. It is not conclusive in nature and hence, is true only till it is rebutted and so in any
given case, it just tends to state that for a given situation there is enough evidence to prove
the liability but does not prove the liability of it. But Res Ipsa Loquitor states that facts are
evident of the liability as there cannot be any other probable cause for the same.
Hence, the keynote difference between the key doctrines states that while prima facie aims at
providing the evidence to prove liability, Res Ipsa Loquitor states that it is reasonable that
liability lies with the defendant and hence, no further evidence is required to be furnished.
But both the doctrines are rebuttable in the sense that the defendant may prove the case in
opposite to the stated evidence and hence negate the applicability of the doctrines.
 

ESSENTIALS OF RES IPSA

LOQUITOR
 
4
Byrne v. Boadle

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Inference of negligence
For the element of Res Ipsa Loquitor to be made applicable in any case, the accident should
be such as which could not have happened if ordinary course of things had happened without
negligence. For instance, a barrel of flour cannot randomly fall on someone’s head if the
party is reasonably careful. And also, a Clock tower in the heart of the city will need extra
care and if it falls and causes injury to several people, the defendants will but obviously be
held liable for the same under this principle. In such cases, direct evidence of proving
negligence is not important, but the plaintiff has to establish a prima facie case, either by
direct or circumstantial evidence of defendant’s negligence.

Exclusive control by defendant

The thing that has caused the damage must be under the direct control of the defendant or his
representative. It is not always necessary that all the circumstances are under the defendant’s
control, but if the events leading upto the accidents were under the control of others besides
the defendant, then the mere happening of the accident is insufficient evidence against the
defendant. For instance, if a surgeon at the time of the operation leaves a mop inside the
patient’s abdomen, here the doctor had exclusive control over the patient’s health and so,
therefore, he would be liable under the principle of Res Ipsa Loquitor.
 

Freedom from Contributory Negligence

The third essential for the principle is that the plaintiff or any third party did not cause or
contribute to the injuries suffered by him. If it is found that the plaintiff or third party
contributed to the act that caused damage to the plaintiff, then the principle shall not apply.
Once these elements are established, there is a possibility that courts treat it as a possible
assumption of negligence on the part of the defendant. Normally, following this the jury in
question presumes that the defendant is liable. The jury, however, is not bound to presume
such things. In such cases, the burden of proof is on the defendant that he was not negligent.
Thus this principle is rebuttable and if the defendant can successfully rebut the claim of
negligence, he will win the case. Otherwise, he shall be made liable.

APPLICATION OF RES IPSA

LOQUITUR
Res Ipsa Loquitur is an inappropriate form of circumstantial evidence enabling the
plaintiff in certain cases to establish the defendant’s likely negligence. Hence the doctrine
properly applied does not entail any covert form of strict liability. It just implies that the
court doesn’t know and cannot find out, what actually happened in the individual case.

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Instead, the finding of likely negligence is derived from knowledge of causes of the type
or category of accidents involved.

To find the application of the maxim there is the Res Ipsa Loquitur test where it is
determined whether the defendant has gone beyond preparation and has actually
committed an attempt, based on whether the defendants act itself would have indicated to
an observer what the defendant intended to do.

The application of the maxim means that a plaintiff prima facie establishes negligence
where:

It is not possible for him to prove precisely what was the relevant act or omission which
set in train the events leading to the accident; but on the evidence as it stands at the
relevant time it is more likely than not that the effective cause of this accident was some
act or omission of the defendant or of someone for whom the defendant is responsible,
which act or omission of the defendant or of someone for whom the defendant is
responsible, which act or omission constitutes a failure to take proper care for the
plaintiff’s safety.

It has been said that in medical negligence cases the essential function of Res Ipsa
Loquitur is not so much to prove the claimant’s case as to enable him, when he is not in
possession of all the material facts, to be able to plead an allegation of negligence in an
acceptable form and to force the defendant to respond to it at the peril of having a finding
of negligence made against the defendant if the defendant does not make an adequate
response. The cases on Res Ipsa Loquitur are no more than illustrations of the way in
which the courts infer negligence from circumstantial evidence. 5

The 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. There must be
reasonable evidence of negligence of negligence, but when the thing is shown to be under
the management of the defendant or his servants, and the accident is such as in ordinary
course of things does not happen if those who have the management use proper care, it
affords reasonable evidence, in the absence of explanation by the defendants, that the
accident arose from want of care.6 So, the elements are control An accident of a type
which does not normally occur without the defendant’s fault.

Control is required because the absence of control by the defendant makes it less likely
that the accident arose from his fault.

5
WINFIELD, Winfield on Torts,(Sweet & Maxwell, London, 16th ed. 2002)

6
Erle C.J; Scott v London and St.Katherine Dock Co.(1865) 3 H. & C. 596

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 MEDICAL NEGLIGENCE

 An act or omission by a health care provider which deviates from accepted

standards of practice in the medical community and which causes injury to
the patient.
 Occurs when a physician, hospital, pharmacist, or any other health care
professional fails to perform the expected duties of their respective jobs.
Once a medical professional or medical facility has agreed to treat a
patient, there is already the duty to treat such patient with reasonable skill,
prudence, and customary care based on a standard of medical care.
 Occurs when a medical professional does not comply with the standard of
medical care, whether by performing flawed or irresponsible procedures or
by failing to take the necessary actions to prevent harm. Medical
negligence can result in injury or harm to the patient, but not in all cases.
 It doesn’t necessarily have to result in harm to the patient, which is a
necessary component in medical malpractice claims.
 Medical negligence is a part of medical malpractice.

Doctrine of Efficient Intervening Cause

 In the causal connection between the negligence of the physician and the
injury sustained by the patient, there may be an efficient intervening cause
which is the proximate cause of the injury.

Examples of Medical Negligence:

 misdiagnosis,

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  failure to diagnose, treat or follow up in a timely manner,
 surgical error,
 anesthesia error,
 or medication/prescription error.

TWO pronged EVIDENCE of Medical Negligence

1. Evidence, as to the recognized standards of the medical community in
the particular kind of case, and
2. A showing that the physician departed from this standard in his
treatment.
 It is a matter of expert opinion whether a physician or surgeon has
exercised the requisite degree of skill and care in the treatment of
his patient.
 RES IPSA LOQUITUR justify PRESUMPTION OF
NEGLIGENCE on the in the absence of DIRECT evidence.

Some cases where we Seen the Doctrine of Res Ipsa Loquitor has been
applied:
1.    Objects left in the patient’s body at the time of caesarian section;
2.    Injury to a healthy part of the body;
3.    Removal of a wrong part of the body when another part wad intended;
4.    Infection resulting from unsterilized instruments;
5.    Failure to take radiographs to diagnose a possible fracture;

Instances where the Doctrine of Res Ipsa Loquitor does not apply:
1. Where the Doctrine of Calculated Risk is applicable;
2. When an accepted method of medical treatment involves hazards which
may produce injurious results regardless of the care exercised by the
physician.
3. Bad Result Rule;

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 4. Honest Errors of judgment as to Appropriate Procedure;
5. Mistake in the Diagnosis.

In most medical malpractice suits, there is a necessity for a physician to give his
expert medical opinion to prove whether acts or omissions constitute medical negligence.
This doctrine has been regarded as rule of sympathy to counteract the ‘conspiracy of
silence’

CASE LAWS
 
Scott v. the London and St. Katherine Docks Company7
The facts of this case were that plaintiff was an officer of Customs. He was instructed to go
from the East Quarry to Spirit Quarry by his surveyor. There were warehouses on the Spirit
Quarry. He went to the entrance of one of the warehouses to find Mr. Lilley, the Surveyor.
7
(1865) 159 E.R. 665

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He was told that Mr. Lilley is in another Warehouse. He went to the first door to meet upon
the Quarry. He went into the Warehouse and met a labouring man about two yards within
warehouse. He enquired from the Labourer about Mr. Lilley, and he was informed that he
could find Mr. Lilley in the next doorway. In passing from one doorway to another, six bags
of sugar fell upon him, and he suffered injuries as the servants of the dock company were
lowering the bags of sugar. Except plaintiff, there was nobody else on the spot of the
accident. There was no warning signal and no fence or barrier. The majority of the Court
came to the conclusion that falling of bags of sugar on the plaintiff itself is not reasonable
evidence of negligence and directed the case for a new trial.
Rampeary and Another v. Jai Prakash and Another8
In this case, the injured/plaintiff was a minor girl about nine years who was passing by the
road on its left side along with her mother. Defendant was playing in the middle of the road.
Another defendant was sitting on the rod of the cycle. Suddenly, the cyclist turned his cycle
on his wrong side (to his right side) and collided with the minor as a result of which she
suffered compound fractures in two of her bones in the right leg with other bleeding injuries.
The pleadings of the minor were that she suffered injuries due to negligence on the part of the
cyclist and defendant No.2, and they are liable for damages. Both the defendants denied the
contentions. Trial Court discussed the entire evidence and decreed the suit for the sum of
Rs.567/-. The Ld. First Appellate Court set aside the judgment of Ld. Trial Court and
dismissed the suit by holding that the plaintiff failed to lead satisfactory evidence of
negligence which can be said to be a proximate cause of accident and injury to her.
However, the Ld. First Appellate Court awarded her Rs.300/- towards expenses for her
treatment. The injured/plaintiff approached Hon’ble Patna High Court. Hon’ble Patna High
Court (Second Appellate Court) set aside the judgment of Ld. First Appellate Court and
remanded the case for fresh decision.
State of Punjab v. Modern Cultivators, Ladwa9
The facts of this case were that plaintiff Modern Cultivators suffered losses due to flooding of
its land as a result of a breach in a canal belonging to the State of Punjab. The Trial Court
awarded damages and decreed the suit which was upheld by the First Appellate Court and in
Second Appeal by Hon’ble High Court. However, High Court reduced a number of damages.
Both the parties approached Hon’ble Supreme Court. The Hon’ble Apex Court held the
defendant was negligent by applying the rule of Res Ipsa Loquitor.

Ng Chun Pui v. Lee Chuen Tat 10

The first defendant was driving a coach owned by the second defendant westwards in the
outer lane of dual carriageway in Hong Kong. Suddenly the coach crossed the central
reservation and collided with a public bus traveling in the inner lane of the other carriageway,
8
(2 Camp. 79)
9
1965 AIR 17, 1964 SCR (8) 273

10
Mark Luney and Ken Opliphant,Tort Law Text and Materials.(Oxford University Press, New York, 2000) pp
173-175

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killing one passenger in the bus and injuring the driver and three others on the bus. The
plaintiffs could not prove that the defendants were negligent and had caused the accident.
They however proceeded on the basis of Res Ipsa Loquitur and shifted the onus on the
defendants to prove that they were not negligent. However, they failed to do so. And the
judicial committee of the Privy Council held the defendants liable for the plaintiff’s injuries.
Thus, Res Ipsa Loquitur finds it’s applicability in accident cases.

Ybarra v. Spangard11

The plaintiff consulted the defendant after developing pain in the stomach region. He was
diagnosed with appendicitis and was admitted for operating upon the same. On the day of the
operation the plaintiff was given anesthesia and operated upon. On the following morning,
when the plaintiff got up he felt a sharp pain in his right arm. His complaint was answered to
as ordinary pain symptoms which follow an operation. A few days after discharge paralysis
was set in the right arm making it impossible to move or rotate his arm. Plaintiff sues the
doctor and the nurse involved in the operation along with the hospital for negligence. He was
however not able to ascertain as to whose negligence had caused his injury. The proceeding
was on the basis of Res Ipsa Loquitur that the injury would not have occurred in the absence
of the doctor’s negligence and that they were in total control of the situation. Though there
were many defendants it was held that Every defendant in whose custody the plaintiff was
placed for any period was bound to exercise ordinary care to see that no unnecessary harm
came to him and each would be liable for failure in this regard.

Res Ipsa Loquitur can be applied in medical cases and several tort-feasors where the plaintiff
is not able to ascertain as to whose negligent act had caused his injury.

Roe v. Minister of Health12

In this case the plaintiff was admitted to the hospital for minor operations. The plaintiff was
administered spinal anaesthetics by injections of nupercaine and developed spastic
paraplegia. The anaesthetics were stored in glass ampoules immersed in a solution of phenol,
and the judge found that the injuries were caused by phenol, which could have entered the
ampoules through flaws not detectable by visual examination. The plaintiff contended that
the doctrine of Res Ipsa Loquitur be applied against the hospital as the injury would not have
occurred had the hospital not been negligent. The court held that the doctrine cannot be
applied and the defendant cannot be held liable as the very occurrence of the injury or
damage was not foreseeable. And the cause for the injury was beyond the control of the
defendants. It was said to be a case of unknown tort-feasance.

Thus, in case of offences which are unintended and the commission of the offence itself was
not known, the defendant cannot be held liable as in this case its an unidentified tortfeasor.

11
154 P.2d 687
12
[ 1954]2 All ER 131

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Mint v. Good13

The plaintiff had been injured by the collapse of a wall adjoining the highway. The wall
formed part of two houses let on weekly tenancies and the collapse was due to lack of repair,
in respect of which neither the landlord nor the tenants were under covenant. The plaintiff
proceeded against the landlord on the basis of Res Ipsa Loquitur that the injury would not
have occurred had the defendant been not negligent in maintaining the wall. It was observed
that if a person is hurt on the highway he must first enquire whether the act which hurt him
was incidental to the defendants reasonable use of the highway. If it was then subject to Res
Ipsa Loquitur he must prove carelessness in the actor. If however the damage is due to an act
which the actor had no right to do on the highway at all, the victim can recover for
foreseeable harm without having to prove carelessness. Thus the defendant was held
negligent and liable for damages.

Houghland v. R.R. LOW (luxury of coaches) Ltd.14

The plaintiff's suitcase was deposited with the defendant bus-owner's driver at the beginning
of a journey. The bus broke down and the luggage was transferred by the owner's servants
from the bus's boot to another bus. At the end of the journey the suitcase could not be found.
The plaintiff was awarded damages and the court held that if the luggage had been lost then it
was upto the defendant to prove that he was not negligent, which is nothing but Res Ipsa
Loquitur.

Walsh v. Holst & Co. Ltd 15

The occupier of premises adjoining the highway was carrying out works of reconstruction,
which involved knocking out large areas of the front wall. He employed for that purpose a
contractor who employed a sub-contractor. Since it was reasonably foreseeable that such a
work on the highway could cause injury to a passer-by the workers had taken all care to
ensure that other road users are safe. However, on one particular day when there was only
worker working at the premises one brick escaped the safety netting and hit a pedestrian who
proceeded against the defendants for the injury sustained on the basis of Res Ipsa Loquitur.
However, the defendants were able to establish that they were not negligent as they had taken
all care to ensure that in no way a road user is injured and what had happened was beyond the
ordinary control of the defendants.

Res Ipsa Loquitur does not apply in cases where reasonable care has been taken and what has
happened is beyond the ordinary control of the defendant.

Bennett v. Chemical Construction (GB) Ltd.16

13
[1950] 2 All ER 1159
14
[1962] 2 All ER 159
15
To be read from Tony Weir, A Casebook on Tort.( Sweet & Maxwell, London, 8th edition, 1996) p322
16
[1971] 3 All ER 822

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The plaintiff was injured when a panel, which was standing behind a panel which was being
moved by the defendant's workmen, fell. There were some suggestions that the two panels
had been tied together, but the judge held that it was not possible to determine precisely how
the accident had happened, but that it could not have occurred without negligence on the
defendant's workmen's part. The words "Res Ipsa Loquitur" did not appear in the pleadings or
in the judgment. On appeal, held, that the case was a classic example of Res Ipsa Loquitur,
which was adequately covered in the pleadings by the allegation of negligence.

The knowledge of mode in which the injury/accident is not necessary to apply Res Ipsa
Loquitur. It is the occurrence of the injury that is important.

A.S. Mittal and Anr v. State of U.P. and Ors.17

The defendants had organized an eye camp at Khurja along with the Lions Club. 88 low-risk
cataract operations were undertaken during the period of the camp. It was however,
disastrous as many of those who had been operated upon lost their eye sight due to post
medical treatment. Proceedings against the government initiated for negligence of the
doctors. Damages worth Rs 12500 were paid as interim relief to each of the aggrieved. The
decision was on the basis of Res Ipsa Loquitur as the injury would not have occurred had the
doctors not been negligent in not having followed up with post-operation treatment.
Res Ipsa Loquitur can be applied in matters where all the procedures have not been followed
and is not just limited to the commission of an act.

Achutrao Haribhau Khodwa and Others v. State of Maharashtra and Others18

The deceased, the appellant’s relative was admitted to a government hospital for a
sterilization operation. During the operation however, a mop was left inside the body of the
deceased leading to the pus formation and subsequent death. The appellant approached the
Supreme Court to strike down the High Court order and award damages worth Rs 1,75,000.
The appellant could not have proved the negligence of the doctors and hence the doctrine of
Res Ipsa Loquitur was applied to hold the defendants liable as the court felt that it was a
negligent act of the defendants in leaving the towel which caused the death and that this act
was well within the control of the defendants. Though it is common that certain foreign
bodies are generally left behind in a patients body during an operation, intentionally or
unintentionally and that the body generally fights the foreign bodies it was observed that
leaving a mop was an extremely negligent act. The order of the High Court was set aside.
Res Ipsa Loquitur cannot be applied for cases of negligence of common occurrence but where
the same negligence is of a very high degree causing serious damage then the maxim can be
applied.

17
 (AIR) 1989 SC 1570
18
(AIR) 1996 SC 2377

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M.C.Mehta v. Union of India19

More popularly known as the Olium gas leak case, this is a Public Interest Litigation
regarding the establishment of enterprises involved in hazardous works in thickly populated
areas in the light of the Olium gas leak. The Olium gas leak had occurred in the work
premises of Shriram Mills. Olium is a hazardous gas and this nature of the gas had caused the
death of many people and causing serious injuries to the health of others stying in the close
vicinity. It was not possible to establish negligence of the mill owners and Res Ipsa Loquitur
was applied to shift the burden of proof on the mill owners to show that they were not
negligent. In the PIL it was pleaded that any industry involved in cases of injuries/damage
due to the hazardous activities it undertakes then the onus must be on them prima facie to
establish that they were not negligent. In this case the maxim was made use of to establish
negligence and they were held liable for the damage and injury caused. It was further held
that any company involved in hazardous activities will be held negligent prima facie and it is
upto them to lead the evidence and prove how they are not negligent failing which they will
be held liable.

CONCLUSION

In Res Ipsa Loquitur, the defendant will lead evidence. There is a two step process to
establishing Res Ipsa Loquitur-

1. Whether the accident is the kind that would usually be caused by negligence.

19
(AIR) 1987 SC 965

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2. Whether or not the defendant had exclusive control over the instrumentality that caused the
accident.

If found, Res Ipsa Loquitur creates an inference of negligence.

Res Ipsa Loquitur finds its applicability in a variety of situations. In the United States it is
mostly applied in cases of commercial airplane accidents and road and traffic accidents.

Generally, it is applied in cases of medical negligence where it cannot be ascertained as to

which specific act of the hospital had caused the injury and where the situation is never
outside the control of the hospitals.

Res Ipsa Loquitur is finding increasing applicability in the modern era. It is applied in cases
of industries like the use of the maxim in the M.C.Mehta v. Union of India20 popularly known
as the olium gas leak case and generally all cases where the rights of the public is violated
and they have been aggrieved and it is not possible for them to establish negligence. So the
onus of not proving negligence is shifted to the defendants.

It is applied primarily in all prima facie cases, where at first instance the negligence on part of
the defendant is evident and without which the injury would not have occurred. In such a
case, it is presumed that the defendant is negligent and it is upto him to prove why he is not
negligent.

BIBLIOGRAPHY

BOOKS
 1. Law of torts by R.k Bangia
 2. Torts written by Ratanlal & Dhirajlal

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(AIR) 1987 SC 965

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  3. A selection of legal maxims, classified and illustrated by
Herbert Broom
 WINFIELD, Winfield on Torts,(Sweet & Maxwell, London, 16th ed.
2002)

CASES
 Scott v. the London and St. Katherine Docks Company
 Rampeary and Another v. Jai Prakash and Another’
 State of Punjab v. Modern Cultivators, Ladwa
 Ng Chun Pui v. Lee Chuen Tat 
 Ybarra v. Spangard
 Roe v. Minister of Health
 Mint v. Good
 Houghland v. R.R. LOW (luxury of coaches) Ltd
 Walsh v. Holst & Co. Ltd 
 Bennett v. Chemical Construction (GB) Ltd
 A.S. Mittal and Anr v. State of U.P. and Ors
 Achutrao Haribhau Khodwa and Others v. State of Maharashtra and Others
 M.C.Mehta v. Union of India

WEBSITES
 Available at  http://dictionary.law.com/Default.aspx?selected=1823
 xa.yimg.com/kq/groups/20824009/365912001/.../med_juris_lect.ppt
 http://www.lawphil.net/judjuris/judjuris.html
 https://www.google.com.ph/

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