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Res Ipsa Loquitur literally means Things speak for itself. Prima facie it appears to be a simple and easy maxim to understand and apply.
However it is not as simple as it appears to be. There is a popular joke among students of law, "Res Ipsa Loquitur, sed quid in infernos
dicetne?" ("The thing speaks for itself, but what is it saying?").
Res Ipsa Loquitur is a maxim, the application of which shifts the burden of proof on the defendant. Generally, in a case it is the plaintiff
who has to provide evidence to prove the defendant's negligence. There is however, a change when this maxim is used. The burden of
proof shifts to the defendant. There is a presumption of negligence on part of the defendant and it is upto him to prove his non-liability
and that it was not his act which caused the plaintiff's injury. The defendant leads the evidence.
The project is of much relevance today considering the globalization and the increasing cases of absolute liability where the maxim finds
much application with cases as recent as M.C.Mehta v. Union of India [1] applying this maxim. In this project the researcher has
attempted to elucidate upon the various situations when this maxim finds its applicability like in matters of gross negligence where a
person is affected at large.
According to the Blacks Law Dictionary the maxim is defined as the doctrine providing that, in some circumstances, the mere fact of an
accidents occurrence raises an inference of negligence so as to establish a prima facie (at first sight) case. It is a symbol for the rule that
the fact of the occurrence of an injury taken with the surrounding circumstances may permit an inference or raise a presumption of
negligence, or make out a plaintiff's prima facie case and present a question of fact for defendant to meet wit an explanation. It is merely
a short way of saying that the circumstances attendant on the accident are of such a nature to justify a jury in light of common sense and
past experience in inferring that the accident was probably the result of the defendants negligence, in the absence of explanation or
other evidence which the jury believes.
It is said that it does not apply if the cause of harm is known. However it can be said tat some part of the causal process is known but
what is lacking is its relation or connection with the defendant. When the fact of control is the cause for the harm it must be shown that
the thing in his control has caused the harm. Therefore, the cause of the harm, in a sense must be known before the maxim can apply In
case of an ordinary negligence the onus of proving negligence lies upon the party who alleges it, for ei incumbit probatio qui dicit, non
qui negat .(the burden of proof rests on the person who affirms, not the one who denies). And to establish a case to be left to the jury, he
must prove the negligence charged affirmatively, by adducing reasonable evidence of it. In Res Ipsa Loquitur, however, the burden of
proof shifts onto the defendant. The expression Res Ipsa Loquitur is not a doctrine but a mode of inferential reasoning applies only to
accidents of unknown cause. The Res Ipsa Loquitur mode of inferential reasoning comes into play where an accident of unknown cause
is one that would not normally happen without negligence on the part of the defendant in control of the object or activity which injured
the plaintiff or damaged his property. In such a situation the court is able to infer negligence on the defendant's part unless he offers an
acceptable explanation consistent with his having taken reasonable care.
The principle of Res Ipsa Loquitur was first put forward by J.Baron Pollock in Byrne v. Boadle[2]. Byrne was struck by a barrel of flour
falling from a second-storey window. The court's presumption was that a barrel of flour falling out of a second-storey window is itself Top
sufficient evidence of negligence. While giving the judgement J. Baron Pollock said-
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We are all of opinion that the rule must be absolute to enter the verdict for the plaintiff. The learned counsel was quite right in saying
that there are many accidents from which no presumption of negligence can arise, but I think it would be wrong to lay down as a rule
that in no case can a presumption of negligence arise from the fact of an accident. Suppose in this case the barrel had rolled out of the
warehouse and fallen on the plaintiff, how could he possibly ascertain from what cause it occurred? It is the duty of persons who keep
barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie
evidence of negligence. A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it
must call witnesses from the warehouse to prove negligence seems to me preposterous.
The present case upon the evidence comes to this, a man is passing in front of the premises of a dealer in flour, and there falls down
upon him a barrel of flour. I think it apparent that the barrel was in the custody of the defendant who occupied the premises, and who is
responsible for the acts of his servants who had the control of it; and in my opinion the fact of its falling is prima facie evidence of
negligence, and the plaintiff who was injured by it is not bound to show that it could not fall without negligence, but if there are any facts
inconsistent with negligence it is for the defendant to prove them.
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.[3]
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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.[4] 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.
Ybarra v. Spangard[6]
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.
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.
Mint v. Good[8]
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.
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.
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.
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.
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.
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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 India[15] 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.
End-Notes
[1] AIR 1987 SC 965
[2] 159 Eng.Rep. 299 (1863)
[3] WINFIELD, Winfield on Torts,(Sweet & Maxwell, London, 16th ed. 2002)
[4] Erle C.J; Scott v London and St.Katherine Dock Co.(1865) 3 H. & C. 596
[5] Mark Luney and Ken Opliphant,Tort Law Text and Materials.(Oxford University Press, New York, 2000) pp 173-175
[6] 154 P.2d 687
[7] [1954]2 All ER 131
[8] [1950] 2 All ER 1159
[9] [1962] 2 All ER 159
[10] To be read from Tony Weir, A Casebook on Tort.( Sweet & Maxwell, London, 8th edition, 1996) p322
[11] [1971] 3 All ER 822
[12] (AIR) 1989 SC 1570
[13] (AIR) 1996 SC 2377
[14] (AIR) 1987 SC 965
[15] Ibid
Author can be Reached at Ph no: shailendra.rml@legalserviceindia.com
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Articles of Yesteryears
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