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Introduction
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.
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Res
Ipsa Loquitor: But what did the thing say?
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The
author can be reached at: mishitajethi@legalserviceindia /
