Res Ipsa Loquitur

Introduction

The principle of res ipsa loquitur applies in cases of negligence and, literally translated, means “the thing speaks for itself”.

Ordinarily, in civil law, the burden of proof rests with the claimant to prove his/her case. Ordinarily he must prove that, on the balance of probabilities, the defendant is liable for the negligence. The same principle of burden of proof operates in criminal cases too: the Crown must prove beyond all reasonable doubt that the defendant is guilty of the crime charged.

The principle of res ipsa loquitur reverses the burden of proof in cases of negligence. It lifts the burden of proof from the claimant’s shoulders, and places it firmly onto the shoulders of the defendant: now the defendant must prove, on the balance of probabilities, that he is not liable for the negligence.

This has a very significant impact on the case. Ordinarily, if the claimant cannot prove his case then he fails to win compensation. Once res ipsa loquitur is engaged, the court automatically takes the position that the defendant is liable, and the defendant must provide evidence or argumentation to prove that he is not liable. This makes it a lot easier for claimants to win their case, because it rigs the deck in their favour.

Task

TaskWhy do you think that the law ordinarily forces the claimant to prove his case, rather than the other way around?

Tip: Think about the concept of freedom and liberty.

 

 

 

 

 

 

When will res ipsa loquitur apply?

There are three conditions for the engagement of res ipsa loquitur:

  1. The thing that caused the harm was wholly under the control of the defendant.
  2. The accident that caused the damage complained of would not have happened unless someone had been negligent.
  3. There is no other explanation of the injury caused to the claimant.

It is important to remember that all three conditions must be present before the court can utilise the principle of res ipsa loquitur and transfer the burden of proof to the defendant.

The best way to illustrate the three conditions is by a quick examination of some key cases.

Scott v London and St Catherine Docks

In this case, the claimant was walking along the dock when he was hit on the head by a sack of sugar which had fallen from an overhead crane. The sack of sugar caused him some harm, and he decided to sue the crane company for negligence.

Run through the three conditions for negligence: duty of care, breach of duty, and damage. Do you think the claimant had a good case against the crane company?

The courts engaged the principle of res ipsa loquitur and transferred the burden of proof to the defendant crane company. The claimant was no longer required to prove his case. Run through the three conditions for res ipsa loquitur and see if you can figure out why.

First of all, the thing that caused the harm (the sack of sugar) was wholly under the control of the defendant crane company. Nobody else had access to the sack of sugar.

Second, sacks of sugar do not simply fall off cranes. Not, that is, unless someone has been negligent.

Third, there is no other explanation for how the claimant received his injuries.

Since all three requirements of res ipsa loquitur were present in this case, the defendant was required to prove that he was not liable. The burden of proof was transferred.

Gee v Metropolitan Railway
Thomas_Tank_Engine_1In this case, the claimant was injured when he fell out of a door on the defendant’s underground train immediately after leaving the station. The doors were controlled by the driver.

Again, the courts engaged the principle of res ipsa loquitur and transferred the burden of proof to the defendant. The claimant was no longer required to prove his case. Run through the three conditions for res ipsa loquitur and see if you can figure out why.

First of all, the thing that caused the harm (the prematurely opened carriage door) was wholly under the control of the driver. Nobody else had access to the switch.

Second, doors are not conscious beings and do not open of their own accord. Somebody must have negligently pressed the “open” button at the wrong moment.

Third, there is no other explanation for the injury caused to the claimant.

Mahon v Osbourne

15880448_surgeon_394752cIn this case, a surgeon left a swab inside a patient’s body during an operation. The body was sewn up, and the swab remained.

Again, the courts engaged the principle of res ipsa loquitur and transferred the burden of proof to the defendant. The claimant was no longer required to prove his case. Run through the three conditions for res ipsa loquitur and see if you can figure out why.

First of all, the thing that caused the harm was wholly under the control of the surgeon.

Second, medical swabs do not spontaneously appear inside human bodies. The surgeon must have been negligent, otherwise the swab would not be there.

Third, there is no other explanation for the injury caused to the claimant.

AQA Exams Advice

Take a look at a past exam question on res ipsa loquitur: June 2010, Question 13 is a good place to start.

Now take a look at the mark scheme for that question, which looks like this:

Mark Scheme

 

 

 

 

 

 

Note that the mark scheme requires a “case” in support. Not cases, plural, but “case”, singular. The question is worth five marks, which means that you should aim to spend five minutes on your answer. This should leave you with enough time to write about one case, using the facts to illustrate the principle of res ipsa loquitur. So, pick your favourite case from the selection above and learn it!

 

 

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By Thomas Phillips Posted in Tort Law