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Res Ipsa Loquitor: But what did the thing say

Written by: Mishita Jethi
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The maxim Res Ipsa Loquitor is a Latin phrase, which means, The thing speaks for itself. It allows the claimant to succeed in action for negligence even when there is no evidence as to what caused the accident and therefore of whether it was attributable to negligence on the part of the defendant.

The leading British case is Scott v London and St. Katherine Docks Co where the principle was as follows:
There must be reasonable evidence of negligence. But, where the thing is shown to be under the management of the defendant, or his servant, and the accident is such as, in the ordinary course of things, does not happen if those who have the management of the machinery use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.
The precise nature of the maxim has been the subject of considerable debate.

Conditions for the Doctrine to apply
Not every plaintiff can get to the jury by intoning the magic of the Latin phrase. For the Res Ipsa Loquitor doctrine to apply, the circumstances must support an inference of negligence. Most courts hold that the plaintiff can make a case for the jury under Res Ipsa Loquitor by showing that:
1. He was injured by an accident that would not normally happen without negligence and,
2. That the negligence is more likely than not, attributable to the defendant, rather than the plaintiff or a third party.

The requirement that the accident would not have happened without negligence

The first foundation fact is that the accident is of a type that ordinarily does not happen without negligence. Many accidents would not support an inference that negligence was involved. It is doubtful that a court would allow the jury to infer negligence from the fact that the plaintiff trips going down the defendant's stairs, or that the defendant's car skids into plaintiff on a rainy day. There are common explanations for such occurrences, which do not involve negligence. But, many other accidents, by their very nature, do not support an inference of negligence.

For example, most courts would probably conclude that the following accidents would not have occurred without negligence:
# A chunk of glass found in canned spinach
# Oil spill from a tank on a highway
# A patient awakens from podiatry procedure with teeth missing.

In each of these cases, common knowledge suggests that this is probably not an accident in the pure sense of the word, that someone's carelessness is the likely explanation. That is not to say that it is the only conceivable explanation. It is always possible to hypothesize other causes- like an undiscoverable defect in the tank truck case. But the plaintiff's burden of proof in negligence case is not to eliminate all possible alternative causes of his injury. His burden of proof is to show that the more probable cause was negligence of defendant.

The requirement that negligence, if any, is attributable to the defendant

The second foundation fact in this maxim is that the negligence is attributable to the defendant. It is not enough to show that someone's negligence probably caused the harm. The evidence must point to the defendant as the negligent party. Often this is obvious, as where a load of cement drops from the defendant's crane, or a scaffold just erected by the defendant falls. In these examples, the defendant is in control of the source of the accident and responsible for its safe operation. If an accident bespeaks negligence in these cases, it very likely bespeaks the defendant's negligence.

This attribution requirement is more difficult, however, where a product causes injury after leaving the defendant's hands. A frequent example is the explosion of a bottle of soda in the hands of the consumer. Many courts have concluded that beverages bottled under pressure should not explode unless someone was negligent in filling the bottle. But in these cases, the bottle may have been handled by the retailer, distributor etc, after leaving the bottler's hands. Thus it is harder to show that the negligence was of the bottler.

The case often states that the instrumentality that caused the harm should have been ?under the control? of the defendant. This formula is clearly very narrow. For, in the glass shard in the spinach case, the canner was clearly ?not in control? of the can when the plaintiff found the glass shard in the can. Yet it is highly likely that the glass went into the can when it was being canned. Although this control language is often found in cases, most courts have not taken it so literally as to preclude use of Res Ipsa Loquitor in such obvious cases.

The limitation of the rule

Aside from the fact that courts are especially cautious about using Res Ipsa Loquitor in professional malpractice cases, and against defendants whose duty of care is otherwise limited, many cases have added constraining rules in England and Canada as well as in the United States of America. The American cases especially say that this doctrine cannot apply unless:
1. The defendant was in exclusive control of the harm causing instrumentality at some relevant time and
2. The plaintiff shows that s/he was not responsible for, or not an active participant in her own injury.

The Leading Cases

1. Byrne v. Boadle

In Byrne v. Boadle, the plaintiff was a pedestrian who was struck by a barrel of flour as he was walking adjacent to the defendant's shop. Although it was a fair inference that the barrel had come from the defendant's shop, the plaintiff was unable to show that the defendant had been negligent in any particular way. Nevertheless, the court thought the happening spoke for itself and the jury was permitted to find that the defendant was negligent, albeit in unspecified ways.
In Byrne, the plaintiff did not prove, either circumstantially or otherwise, that the barrel had been stored on its side instead of standing up, or that a rope holding the barrel had been frayed or broken or any other particular act that could be counted as negligent because they could be evaluated in terms of their costs, risks or justifications in customary practices. The claim was only that circumstances warranted the belief that the defendant was negligent in a wholly mysterious way.

2. Scott v. London and St. Katherine Docks Co Court of Exchequer Chamber

The plaintiff by his declaration alleged that the defendants were possessed of certain docks, and warehouses therein, that the plaintiff was lawfully therein, that the defendants by their servants were lowering bags of sugar by means of a crane or hoist, and that by the negligence of the defendants? servants a bag of sugar fell upon the plaintiff and injured him. The defendants denied liability. At the trial before Martin B and a special jury, the plaintiff, who was the only witness called, gave evidence relative to the accident. No other evidence being given, the learned judge proposed to nonsuit the plaintiff for want of evidence showing negligence in defendants but on the plaintiff?s resisting that course, with a view to a bill of exception, his Lordship directed the jury to find a verdict for the defendant. A rule was subsequently obtained to set that verdict aside, and for a new trial, on the ground that there was evidence of negligence by the defendants? servants, which rule after argument was made absolute by the Court of Exchequer, on the authority of Bryne v. Boadle, and against that decision the defendants now appealed.

3. Henderson v. Henry E. Jenkins & Sons House of Lords

The hydraulic brakes of a lorry suddenly failed whilst it was descending a hill and it collided with two vehicles and killed the appellant?s husband. The reason for the failure was a hole in the corroded part of the brake pipe. Although part of the pipe could be seen whilst it remained on the lorry, the part which in fact was badly corroded could not have been inspected without the pipe being removed. The evidence showed that it was unusual for there to complete and sudden failure of brakes from corrosion. The respondents pleaded that the brake failure resulted ?from a latent defect which occurred without any fault on the part of them and the existence of which was not discoverable by the exercise of reasonable care by them?. They argued that ordinary practice only required that the visible part of the pipe be regularly inspected and it was established that neither the Ministry of transport nor the manufacturers advised that the pipes be removed for inspection. The appellant?s action for damages against the respondents was dismissed by Nield J. She appealed to the Court of Appeal, against the dismissal of the action against the respondents and, after that appeal had been dismissed, she appealed to the House of Lords, where the appeal was allowed as 3-2. While Lord Reid, Lord Pearson and Lord Donovan delivered a speech in favour of allowing an appeal, Lord Guest and Lord Dilhorne were in favour of dismissing the appeal.

4. Rampeary v. Jai Prakash

A minor girl whilst she was passing along with her mother collided with the defendant who was coming on a cycle from the opposite direction and sustained several injuries. It was alleged that the collision took place because the defendant suddenly turned his cycle on the wrong side of the road and was carrying a person on the rod of the cycle, which was not permissible under the traffic rules. In a suit for damages, it was held that none of the aforesaid elements taken individually might prove negligence as contemplated in law. But the position may differ when each of them is weighed along with the other circumstances on the record, which go to show that he did not take all reasonable care on the part of the defendant, which should have avoided the collision.

Shifting the Onus of Proof: Is the maxim too liberal?
The maxim may not be applied too liberally it must be remembered that what is said in relation to it once cannot indiscriminately be applied to another case. It should not be applied as a legal rule but only as an aid to an inference when it is reasonable to think that there are no further facts to consider.

# Res Ipsa Loquitor is in essence no more than a common sense approach, not limited to technical rules, to the assessment of the effect of evidence in certain circumstances. It 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 it stands, i.e., in the absence of any evidence from the defendant, it is more likely than not that the effective cause of the accident, whatever it may have been, was some act or omission of the defendant or of someone for whom the defendant was responsible, which act or omission constitutes a failure to take proper care for the plaintiff's safety.

The application of res ipsa loquitor is not necessarily excluded merely because there has been a possibility of outside interference with the thing through which the accident happened.

The difference between Direct and Circumstantial evidence

Circumstantial evidence is most commonly used in proving all sorts of tort cases. The plaintiff offers evidence of a pile of freshly cut maple logs in the defendant's courtyard to establish that the defendant cut down his maple tree. Scratches or paint scrapings on the defendant's fender are offered to establish that it was his car that hit the plaintiff's. Evidence of large, unexpected deposits in the bank account of the defendant is offered to establish that he converted plaintiff's funds. In each case, evidence of one fact is offered because it tends to establish another. Such evidence is not an airtight one, but it will often be the best that the plaintiff can do, and may well convince the court that it is ?more probable than not? that the defendant was negligent.

Direct evidence is the evidence that needs no further support. It is complete in its self. A man saw another man being murdered, a person witnessing a robber robbing a lady etc are all direct evidence. They are capable of proving the case own their own.

From Circumstantial Evidence to Res Ipsa Loquitor

If circumstantial evidence is one step away from direct testimony, the classic doctrine of Res Ipsa Loquitor is a further step beyond the traditional use of circumstantial evidence. Dean Prosser offers the following whimsical response to this tautological logic: Res Ipsa Loquitor, Sed Quid In Infernos Dicet  (The thing speaks for itself, but what the hell did it say?). Thus, even though the plaintiff cannot offer a direct or circumstantial evidence to show exactly what caused the barrel to fall , he should be allowed to reach the jury on the issue of negligence by proving the circumstances of the accident itself, because they bespeak negligence even without a more specific showing of the chain of events.

There is nothing particularly mystical about this idea. Res Ipsa Loquitor is not really a separate principle but rather a special form of circumstantial evidence. The underlying rationale is that sometimes facts can be inferred from other facts. In Res Ipsa Loquitor cases, the circumstantial evidence allows the jury, based on evidence about the accident itself, to infer that it must have resulted from some negligent act by the defendant.

Here are some examples of cases in which plaintiff might use res ipsa loquitor to establish negligence:
# A railway company hires a contractor to install a temporary boarding platform for trains, and it collapses shortly after it is put to use. Even if the collapse makes it impossible to produce evidence of the exact cause, a jury might well infer that negligent construction caused the collapse.

# A brick falls from a roof where a chimney is being repaired and hits the plaintiff on his head. Here again the plaintiff may not be able to demonstrate what caused the brick to fall; indeed. The workers may not be able to either. However it is possible to infer that the brick probably fell due to the negligent act of the workers.

# An elevator stops abruptly between floors, throwing the plaintiff to the floor. Again the inference is easy to draw that had it not been due to the fault of the elevator, it would not have stopped abruptly.In each of the cases, there is no showing of exactly how the accident happened, but in fact that it happened at all suggests that someone was probably negligent.

The Defendant: Is he a scapegoat?
The Res Ipsa Loquitor doctrine may warm the hearts of plaintiff's counsel, but it places the defendant in a very difficult position. How is he to refute the plaintiff's proof of negligence, where plaintiff hasn't proved any specific negligent act? Certainly the most comforting way to rebut a Res Ipsa Loquitor case is to prove the actual cause of the accident. For example, proof that the station platform collapsed because the transit authority was tunneling underneath it will completely undermine the Res Ipsa Loquitor inference.

Short of that, the defendant can attack each of the foundation facts necessary to support Res Ipsa Loquiter. He may probe the attribution requirement by showing that other persons mishandled the product, which caused the injury after it left its hands (for example, the retailer in the exploding beverage case). He may undermine the required showing that the type of accident does not ordinarily happen without negligence, by showing other common, non-negligent causes of this type of accident. A chain is only as its weakest link; if the jury is not convinced that each of the foundation facts is established, it should refuse to infer the ultimate fact of negligence.

If the defendant's proof on either of these points is strong enough, the judge may even direct a verdict for him, on the ground that the jury could not reasonably conclude that the proper foundation for the res ipsa loquitor doctrine has been established.

Where the defendant does not have evidence of the exact cause of the accident, he may try to refute the res ipsa loquitor inference by proving that he generally exercised due care. In the case of the glass in the spinach, for example the canner might produce the evidence of the careful quality control measures it takes to avoid objects getting into the cans. The airline in the lost plane example might produce evidence of its careful training, maintenance, and the inspection procedures. This does not conclusively eliminate negligence as the cause, but it could influence the jury's thinking about the probabilities. On the other hand, this can backfire: The more careful the defendant's procedures, the less likely that an accident would happen if they had in fact followed those procedures. Thus, such proof could lead the jury to conclude that, had the procedures been followed, there would not have been an accident at all.

The cases suggest that the plaintiff should be able to rely on res ipsa loquitor because the defendant has better access to evidence of the cause of the accident than the plaintiff does. It is certainly true that the doctrine creates a strong incentive for the defendant to produce evidence within its control, at least if it is exculpatory. However, most courts do not restrict the doctrine to cases in which the defendant has better access to proof. Often the defendant has no better chance of explaining the accident than the plaintiff does. In the disappearing plane case or the glass in the spinach case, for example, the airline or the canner may have no idea what caused the accident, or any way of finding out. Yet the likely explanation of the accident may still be negligence. In such cases, the defendant should not be able to avoid res ipsa loquitor simply by showing that it knows no more about the accident than the plaintiff does.

Other uses of Res Ipsa Loquitor
# Impacted Information
The problem of impacted information arises when one side to a transaction has information of great relevance to the welfare of both parties but has no incentive to share the information with any of the two. Courts on both sides of the Atlantic, have responded to such to such a situation by applying res ipsa loquitor. In Ybarra v. Spangard , the Supreme Court of California had to resolve a dispute between a patient who had undergone an operation and emerged with a mysterious frozen shoulder and the medical team he was suing, all of knew what had happened but were refusing to say anything. The court ruled that res ipsa loquitor could apply collectively, with the result that every member of the medical team would be found liable unless they revealed exactly what had happened. Similarly, in Henderson v. Jenkins , the defendant lorry owners were the only people in a position to know about a crucial piece of information without which it was impossible to say whether or not the defendant had carried out adequate safety inspections.

# Creating Strict Liability
The other use of res ipsa loquitor is to crate strict liability out of the material of the fault regime. In Ward v. Tesco , res ipsa loquitor was said to apply to the case of a shopper who was injured after slipping on the yogurt that had been spilt on the floor of one of the defendant?s shops. The evidence was that the floor was cleaned five to six times a day, and additionally when the staff noticed any spillage. The court wanted Tesco to say exactly how the accident had occurred, something that nobody could do. By holding the defendants liable for not having information that nobody has, the Ward case therefore effectively creates strict liability.

Where can the Doctrine be used?
The maxim has been held to apply, where the trolley arm of a tram was plucked from a standard and struck a passenger on the head ; where a crane toppled over ; where a heavy electrical control panel toppled over ; where a heavy piece of machinery fell off in a factory ; where a trawler was sent to be examined on the defendant's slipway and was put on to a cradle by the defendant's workmen, when it suddenly fell over and was damaged ; where a coupling on a railway train had parted ; where a surgeon left a swab in the body of his patient after an operation.

The maxim also applied where the healthy heart of a four year old child, undergoing surgery on her hip, stopped beating for a period of over half an hour ; where a patient developed gangrene after receiving an injection in the arm.

The maxim, however does not apply where livestock was sent by railway and found damaged at arrival ; where a schoolboy, during the morning break was in the corridor in the school building and was hit in the eye by a golf ball which had entered the corridor by the doorway, after it had been driven by another school boy in the playground ; where a cricket ball was driven by a batsmen out of the ground and injured a pedestrian on a footpath.

How good is it a Defense: A Critique
Arguably, courts that apply res ipsa loquitor play fast and loose with the negligence element of the claim, since they allow the jury to find for the plaintiff without proving any specific negligent acts. In the platform case, for example, if the plaintiff merely offers evidence that the platform fell shortly after the construction, he has not proved any particular negligent act done by the contractor. Similarly, in the brick case, evidence that the brick fell while the defendant's employees were working on the roof does not prove that it was a negligent act that caused it to fall. How then, can we know that there was negligence involved at all.

Well, we don't know that negligence was involved. In res ipsa loquitor case, the jury may not be able to reconstruct the sequence of events, but they may be able to make an educated inference that, whatever it was, it probably involved the defendant's failure to exercise due care in some respect. The inference may not be infallible, it may not be satisfying to the ruthlessly syllogistic mind, but it is accepted by the general legal system to satisfy the ?more probable than not? standard of proof in negligence cases. Courts, as practical institutions, must face the fact that irrefutable proof is seldom available in practical affairs, that the system is imperfect by its nature and must settle for a reasonable balance of probabilities.

The res ipsa loquitor maxim allows juries to make the same inference of negligence that most of us would make from our common experience. The maxim is not a rule of law, it merely describes a state of the evidence from which it is possible to draw an inference of negligence. It is based on common sense, its purpose being to enable justice to be done when the facts bearing on causation and the standard of care exercised are unknown to the claimant but ought to be within the knowledge of the defendant. It will not assist where there is no evidence to support an inference of negligence and a possible non-negligent cause of the injury exists.

At the end of the day, if we apply this maxim only when all reasoning points to a particular fact, and the case is undecided only for want of a few technicalities, then the use of this maxim is justified. If, however, this maxim is applied by courts just to speed the cases and deliver verdicts, then the maxim will stand exploited.

The author can be reached at: mishitajethi@legalserviceindia / Print This Article


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