Everything about Res Ipsa Loquitur totally explained
Res ipsa loquitur is a legal term from the
Latin meaning literally, "the thing itself speaks" but is more often translated "the thing speaks for itself". It signifies that further details are unnecessary; the proof of the case is self-evident. The doctrine is applied to
tort claims which, as a matter of
law, don't have to be explained beyond the point where liability is established. It is most useful to
plaintiffs in certain
negligence cases. It was first formulated in the case
Byrne v. Boadle (1863), in
England.
History
Under the old
common law rule, to use
res ipsa loquitur in the context of negligence the plaintiff must prove that:
- The harm wouldn't ordinarily have occurred without someone's negligence
- The "thing" which caused the harm was under the exclusive control of the defendant at the time of the likely negligent act
- There must be an absence of a reasonable explanation as to how the harm occurred.
However, each state applies its own standards to determine negligence under the doctrine of
res ipsa loquitur. For example, in New York, courts have generally held that the doctrine of
res ipsa loquitur applies if, first, the accident wouldn't occur in the absence of negligence; second, the instrumentality causing injury was within the exclusive control of the defendant; and third, the plaintiff's voluntary or involuntary actions didn't contribute to the accident. Often in dispute is the second element of exclusive control. The defendant's exclusivity of control must be such that the likelihood of injury was, more likely than not, the result of the defendant's negligence. The likelihood of other possibilities don't need to be eliminated altogether but they must be so reduced that the greater probability lies with the defendant.
This is usually referred to in the "
scalpel left behind" example of obvious negligence in the case of a
physician, in which a person goes in to a doctor for stomach pains after having his appendix removed. X-rays determine the patient has a metal object the size and shape of a scalpel in his stomach. It requires no further explanation to show the surgeon who removed the appendix was negligent, as there's no legitimate reason for a doctor to leave a scalpel behind in an appendix operation.
The "exclusive control" element has largely given way in modern cases to a less rigid formulation, where the plaintiff must prove that other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence. As a consequence, the third element, that the plaintiff didn't
contribute to his injury, is subsumed by the new formulation. In addition, it's important to note that
contributory negligence is, in modern
case law, reckoned in "comparison" to the injury caused by the other. For example, if the negligence of the other is 95% the cause of the plaintiff's injury, and the plaintiff is 5% responsible, the plaintiff's slight fault won't negate the negligence of the other (This new type of split liability is commonly called
Comparative Fault).
For instance, plaintiff Doe is injured when an elevator he's entered plunges several floors and stops abruptly.
Jane's Corporation built, and is responsible for maintaining, the elevator.
Doe sues Jane, and during the proceedings, Jane claims that Doe's complaint should be dismissed because he's never proved, or for that matter even offered, a theory as to why the elevator functioned incorrectly. Therefore, argues Jane, there's no evidence that they were at fault in the incident.
The court may hold that Doe doesn't have to prove anything beyond the fall itself.
The elevator evidently malfunctioned (it wasn't intended to fall nor is that a proper function of a correctly functioning elevator), and Jane was responsible for the elevator in every respect, so Jane's Corporation is responsible for the fall.
The thing speaks for itself: no further explanation is needed to establish a prima facie case.
Source case
The principle of res ipsa loquitur was first put forward by Baron Pollock in Byrne v. Boadle, 159 Eng.Rep. 299, an 1863 English case. 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:
» 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 don't roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel couldn't 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 isn't bound to show that it couldn't fall without negligence, but if there are any facts inconsistent with negligence it's for the defendant to prove them.
Res ipsa loquitur and prima facie
Res ipsa loquitur is often confused with
prima facie ("on its first appearance", or "by first instance"), the legal expression used when a matter appears to be self-evident from the facts. In
common law jurisdictions,
prima facie denotes evidence that (unless rebutted) would be sufficient to prove a particular proposition or fact.
The difference between the two is that
prima facie is a term meaning the matter seems obvious and self-explanatory.
Res ipsa loquitur is then the legal argument that
because it's so obvious, the plaintiff can stop their explanation there and doesn't have to provide any further in-depth details to prove liability, because it "speaks for itself". Example:
» "There is a
prima facie case that the defendant is liable. They controlled the pump. The pump was left on and flooded the plaintiff's house. The plaintiff was away and had left the house in the control of the defendant.
Res ipsa loquitur.
Res ipsa loquitur by country
Canada
In Canada the doctrine of res ipsa loquitur has been largely overturned by the
Supreme Court. In case of
Fontaine v. British Columbia (Official Administrator) the Court rejected the use of res ipsa loquitur and instead proposed the rule that once the plaintiff has proven that the harm was under exclusive control of the defendant and that they were not contributorally negligent a
tactical burden is placed on the defendant in which the judge has the discretion to infer negligence unless the defendant can produce evidence to the contrary.
Hong Kong
Some
lawyers prefer to avoid the expression
res ipsa loquitur (For example, Hobhouse LJ in
Ratcliffe v
Plymouth & Torbay Health Authority [1998] PIQRP170). However, some other
lawyers (and
judges too) still find the expression a convenient one to refer to (For example, see
Bokhary PJ, a
permanent judge of the
Hong Kong Court of Final Appeal, in
Sanfield Building Contractors Ltd v
Li Kai Cheong [2003] 6 HKCFAR 207).
The expression
res ipsa loquitur isn't a
doctrine but a “mode of inferential reasoning” applies only to accidents of unknown cause. (see
Sanfield Building Contractors Ltd v
Li Kai Cheong [2003] 6 HKCFAR 207 and
Schellenbery v
Tunnel Holdings Pty Ltd (2000) 200 CLR 121)
The
res ipsa loquitur mode of inferential reasoning comes into play where an accident of unknown cause is one that wouldn't 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. (see
Sanfield Building Contractors Ltd v
Li Kai Cheong [2003] 6 HKCFAR 207)
South Africa
In
South Africa (Roman Dutch Law) there's no doctrine of
res ipsa loquitur, although the phrase is used regularly to mean the "facts speak for themselves". Res ipsa loquitur doesn't shift any burden of proof or onus from one party to the other. The phrase is merely a handy phrase used by lawyers.
United States
Most American courts recognize
res ipsa loquitur. The
Restatement (Third) of Torts, § 17 describes a two step process for establishing res ipsa loquitur. The first step is whether the accident is the kind that would usually be caused by negligence, and the second is whether or not the defendant had exclusive control over the instrumentality that caused the accident. If found, res ipsa creates an inference of negligence, although in most cases it doesn't necessarily result in a directed verdict.
A contention of
res ipsa loquitur commonly is made in cases of commercial airplane accidents.
"Res Ipsa Loquitur" is also the slogan of the
The Bulletin newspaper of
Philadelphia.
Hunter S. Thompson is quoted as saying : "Maybe there's no Heaven. Or maybe this is all pure gibberish — a product of the demented imagination of a lazy drunken hillbilly with a heart full of hate who has found a way to live out where the real winds blow — to sleep late, have fun, get wild, drink whisky, and drive fast on empty streets with nothing in mind except falling in love and not getting arrested...
Res ipsa loquitur. Let the good times roll."
Gonzo Papers, Vol. 2: Generation of Swine: Tales of Shame and Degradation in the '80s (1988)
United Kingdom (England and Wales)
In
English tort law, the effect of
res ipsa loquitur is a strong inference in favour of the claimant that negligence has taken place. It doesn't however fully reverse the
burden of proof (
Ng Chun Pui v Li Chuen Tat [1988] RTR 298).
The requirement of control is important in English law. This requirement wasn't satisfied in
Easson v. LNE Ry [1944] 2 KB 421, where a small child fell of a train several miles after it had left the station. It was considered that the door of the train wasn't sufficiently under control of the railway company after the train started moving and could have been opened by somebody for who the company wasn't responsible. This case was distinguished form the earlier case of
Gee v. Metropolitan Ry (1873) LR QB 161 where the plaitiff fell from the train immediately after it left the station, when the door through which he fell could still be considered to be fully controlled by the railway company.
The requirement that the exact cause of the accident must be unknown is illustrated by the case of
Barkway v. South Wales Transport [1950] 1 All ER 392. In this case a bus veered across the road and it was known that the accident was caused by a flat tire. In this case, the plaintiff couldn't be assisted by
res ipsa loquitur and had to go on to prove that the flat tire was caused by the transport company's negligence.
Further Information
Get more info on 'Res Ipsa Loquitur'.
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