Res Ipsa Loquitur
is a Latin phrase that means the thing speaks for
. In the law of torts, it is a very popular doctrine. In cases, where the
evidence is itself sufficient to prove the guilt of the defendant, the maxim is
used there. So, the maxim points out any circumstantial evidence or an object
which itself shows that an act has been committed. It shows that if the
defendant was not negligent, the accident would not have happened.
In the law of torts, to prove somebody's negligence, the burden of proof is on
the plaintiff which means the person 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. If the plaintiff is not able to prove
negligence on the part of the defendant, the defendant cannot be made liable.
So, the principle of Res Ipsa Loquitor came into force under which a plaintiff
can use circumstantial evidence to establish negligence.
In the case of Morgan v. Sim
, (1857) 11 Moo P.C. 307, 312, Lord
Wensleydale stated that:
The party seeking to recover compensation for damage must make out that the
party against whom he complains was in the wrong. The burden of proof is clearly
upon him, and he must show that the loss is to be attributed to the negligence
of the opposite party. If, in the end, he leaves the case in even scales, and
does not satisfy the court that it was occasioned by the negligence or default
of the other party, he cannot succeed.
So when the situations around the thing
due to which the damage was caused was under the control of defendant and the
happening would be such as which is out of ordinary control of the business.
In Halsbury's Law of England, the maxim is represented as 'An exception to the
general rule that the burden of proof of the alleged negligence is in the first
instance on the plaintiff occurs wherever the facts already established is such
that the proper and natural inference immediately arising from them is that the
injury complained of was caused by the defendant's negligence, or where the
event charged as negligence 'tells its own story' of negligence on the part of
the defendant, the story so told being clear and unambiguous'.
The maxim Res Ipsa Loquitur is used in cases where the proof or evidence or an
object of an accident directly points out towards the guilt of the defendant and
shows that defendant himself is the cause of such accident. Mere proof of the
accident does not prove the guilt of the defendant and so in such cases, this
maxim cannot be used. It is a rule of evidence and not a rule of law.
The maxim of Res Ipsa Loquitur applies in situations like:
- The cause of the accident was under the management or control of the
- The accident is such as in the ordinary course of things and would not
happen if those who have the management use proper care
In the cases where this maxim is used, the burden of proof shifts from the
plaintiff to the defendant and then the defendant has to disprove the
accusations made upon him.
Background of Res Ipsa Loquitur
This maxim has a Latin origin and when literally translated means:
itself speaks, but it is more commonly known as the thing speaks for itself
As per the known reports, this phrase was used first by Cicero in his defense
speech Pro Milone. In the history of common law, the use of this phrase is first
found in the case of Byrne v. Boadle. 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
the 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.
Elements of Res Ipsa Loquitur
- The event that caused injury to the plaintiff would not have occurred if someone
has not acted negligently.
- The evidence presented rules out all the possibilities of the fault of the
plaintiff or third party.
- There is a duty of care of the defendant towards the plaintiff which he
Essentials of Res Ipsa Loquitur
- Presence 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, like in the case of Byrne v. Boadle, a barrel of flour cannot randomly
fall on someone's head if the party is reasonably careful.
Corporation of Delhi v. Subhagwanti, 1966 due to the collapse of the Clock Tower
situated opposite the Town Hall in the main Bazar of Chandni Chowk, Delhi, a
number of persons died. The Clock Tower belonged to the Municipal Corporation of
Delhi and was exclusively under its control. It was 80 years' old but the normal
life of the structure of the top storey of the building, which had fallen, could
be 40-45 years, having regard to the kind of mortar used.
circumstances, the Supreme Court held that the fall of Clock Tower tells its own
story in raising an inference of negligence on the part of the defendant. Since
the defendants could not prove the absence of negligence on their part, they
were held liable. 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 the defendant's negligence.
- Control by the 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 up to the accidents were under the control of others
besides the defendant, then the mere happening of the accident is insufficient
evidence against the defendant. In Nihal Kaur v. Director, P.G.I., Chandigarh,
1996, scissors were left in the body of a patient during an operation. Then his
condition worsened and he died. Scissors were recovered from the ashes after
cremation. Compensation of Rs. 1,20,000 was awarded to the defendants of the
- 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
principal shall not apply. In the case of Karnataka State Road Transport
Corporation v. Krishnan, 1981, in an accident, the two buses brushed each other
in such a way that the left hands of two passengers traveling in one of these
buses were cut off below the shoulder joint. It was held that the accident
itself speaks volumes about the negligence on the part of drivers of both
vehicles. The doctrine of res ipsa loquitur was applied to the case and, in the
absence of any satisfactory explanation, the defendants were held liable.
Res Ipsa Loquitur in Medical Practice
Res Ipsa Loquitur is used in medical practice when any foreign matter is left
inside the body of the patient after the surgery due to which the patient
suffers harm or death is caused of such patient. Res Ipsa Loquitur is used in
cases when during the medical practice, an act of negligence is committed and
due to which the patient suffers harm. For Res Ipsa Loquitur, to come into
force, it needs to be shown that there is any object or thing which proves the
act of negligence directly.
In A.H. Khodwa v. the State of Maharashtra
, 1996 the
patient had undergone a sterilization operation after childbirth. A mop was left
inside the abdomen of the patient, by the doctor performing the operation. This
resulted in peritonitis, and the patient died after a few days. The presumption
of negligence by the doctor performing the operation was raised and the State
running the hospital was held liable for the same.
In Mrs. Aparna Dutta v. Apollo Hospital Enterprises Ltd.
, 2000, the plaintiff
got herself operated on for the removal of her uterus in the defendant hospital,
as there was diagnosed to be a cyst in the area of one of her ovaries. Due to
the negligence of the hospital surgeon, who performed the operation, an
abdominal pack was left in her abdomen. The same was removed by a second
surgery. Leaving foreign matter in the body during the operation was held to be
a case of res ipsa loquitur. The doctor who performed the operation and the
hospital authorities were held liable to pay compensation of Rs. 5,80,000 to the
plaintiff for their negligence.
So, this way Res Ipsa Loquitur is used in cases where any foreign material is
left inside the body due to negligence and causes harm to patients.
Res Ipsa Loquitur in Road Accidents
This maxim is also applied in cases of Road Accidents where there are several
incidents of negligence committed by drivers or passengers which leads to the
accidents. Res ipsa loquitur is only applied to cases where the injury that
occurred could only have been caused by negligence. There are two conditions
which are to be looked upon to apply Res Ipsa Loquitur to any case of road
accidents. These are as follows:
The type of accident that occurred must be usually a result of negligence
- Accidents can occur in many ways but while applying res ipsa loquitur it is
first seen that in which manner the injury has occurred or the specific manner
of the accident is looked upon. It is to be noted that in such cases it is to be
found out that whether the defendant could have avoided causing injury by
exercising more care. If the injury caused to the patient as a result of the
accident was inevitable which means severe enough to cause the death of the
victim, then res ipsa loquitur may be defeated.
The defendant had sole control over the conditions that led to injury - Res ipsa
loquitur may not be applied if the victim shared some responsibility for the
injury. For example, if a person is taking on a cell phone and is distracted
while walking on the road and suddenly a truck driver takes an illegal turn and
hits the person then the application of res ipsa loquitur may not fit properly.
In these cases, the court may reduce the amount of a victim's damages under
Res Ipsa Loquitur can be applied if the defendant is solely responsible for the
conditions which caused the accident or the defendant is responsible for the
negligence himself. It is to be looked upon that the defendant had the sole
control over the conditions of the accident.
In Karnataka State Road Transport Corporation v. Krishnan, 1981
, in an
accident, the two buses brushed each other in such a way that the left hands of
two passengers traveling in one of these buses were cut off below the shoulder
joint. It was held that the accident itself speaks volumes about the negligence
on the part of drivers of both vehicles. The doctrine of res ipsa loquitur was
applied to the case and, in the absence of any satisfactory explanation, the
defendants were held liable.
In Gangaram v. Kamlabai, 1979
, the front tyre of a taxi burst as a result
of which that taxi left the road, when on its offside and turned somersault. Two
passengers traveling in the taxi got killed in the accident. The high speed of
the car was apparent from the fact that the car had left drag marks nearly 20
feet on the Kutcha road and then it toppled. It was held that the obvious
inference in this case that the tyre, which had burst, was old and unroadworthy,
and the speed of the taxi was excessive, and, therefore, the doctrine of res
ipsa loquitur was applicable to the case. The defendants could not give any
satisfactory explanation to rebut the presumption of negligence and they were
In Agya Kaur v. Pepsu Road Transport Corporation,
1980, a rickshaw going
on the correct side was hit by a bus coming on the wrong side of the road. The
speed of the bus was so high that it, after hitting the rickshaw, also hit an
electric pole on the wrong side. It was held that from these acts, the only
inference which would be drawn was that the driver of the bus was negligent. The
defendant Corporation whose driver had caused the accident was held liable.
Where the maxim does not apply
The maxim res ipsa loquitur applies when the only inference from the facts is
that the accident could not have occurred but for the defendant's negligence.
The maxim does not apply in cases where different inferences are possible or
where the reason for the negligence is unknown. In K. Sobha v. Dr. Mrs. Raj
, 1999, the plaintiff, aged 35 years, who had an 8-year-old
son, approached the defendant, a gynaecologist, to consult regarding the
non-conception of another child. She was advised to test tubing to remove
possible obstruction in the fallopian tube. With the plaintiff's consent, the
needful was done by a simple procedure of blowing air through the apparatus into
the vagina under controlled pressure.
Subsequently, some infection had occurred in the plaintiff's reproductive system
and the same had to be removed. There was no evidence to indicate any negligence
on the part of the defendant which could have caused the infection. The cause of
infection was, however, unknown. So, under these circumstances, it was held that
it was not a case of res ipsa loquitur, as the inference of negligence could not
be drawn from the facts of the case.
In the case of R.S.R.T.C. v. Smt. Sagar Bai, 1999
, there was an accident
which was alleged to have occurred due to the mechanical failure of the bus.
There was no apparent evidence to indicate the negligence of the bus driver. It
was held that the doctrine of res ipsa loquitur could not be applied under the
circumstances of the case and the Rajasthan State Road Transport Corporation
could be held liable only after its negligence was proved.
So, Res Ipsa Loquitur 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 on him to prove why he is not
negligent. The maxim is related to the negligence of a person and generally is
applied to such cases where the act has been caused by the negligence of a
Res Ipsa Loquitur is applicable in cases of road accidents and medical practice
where the harm is caused due to negligence of one or both parties. So, the
application of res ipsa loquitur directly proves the act committed by the
defendant and helps in proving a person liable.