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A Critical Analysis of Res Ipsa Loquitur with reference to Case Laws

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Shailander Raj Goswami Student, II year, Dr. Ram Manohar Lohiya National Law University, Lucknow

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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 sufficient evidence of negligence. While giving the judgement J. Baron Pollock said-

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.

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. 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.[3]

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.

Case Laws And Analysis
Ng Chun Pui v. Lee Chuen Tat [5]
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, 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. 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.

Roe v. Minister of Health[7]
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.

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.

Houghland v. R.R. LOW (luxury of coaches) Ltd.[9]
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[10]
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.[11]
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.[12]
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 Others[13]
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.

M.C.Mehta v. Union of India[14]
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.

# Res Ipsa Loquitor: But what did the thing say?

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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.

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 appled 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 toprove why he is not negligent.
~~~~~~~~~~~~~
[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

# Res Ipsa Loquitor: But what did the thing say?

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Date of Publication: 4/27/2009

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