RES IPSA LOQUITOR
Submitted by:
Anany Vikram Singh
UID-SM0119011
1st semester, BA. LL.B. (Hons)
Faculty-in-charge:
Mayashree Gharpalia
National Law University and Judicial Academy, Assam
November 1, 2019
TABLE OF CONTENTS
1. INTRODUCTION
1.1. Research questions
1.2. Scope and Objectives
1.3. Research Methodology
1.4. Literature review
2. NEGLIGENCE
2.1. Concept of Negligence
2.2. Essentials
3. MEDICAL NEGLIGENCE
3.1. Concept of medical negligence
3.2. Essentials
4. RES IPSA LOQUITOR
4.1. Definition
4.2. Key elements of Res Ipsa Loquitur
4.3. Cases
INTRODUCTION
Res ipsa loquitur is Latin term which means “ the thing speaks for itself”. Under the common
law of negligence, the res ipsa loquitur doctrine indicates that a breach of a party's duty of
care may be inferred from the events that occurred. In other words, the negligence is so
obvious that it can be easily determined that someone had a negligent hand in what happened.
Basic negligence principles require that to prove a case, a party must owe a duty of care and
then the breach of that duty of care should take place. In other words, if one is responsible or
controls something, such as property, that person is responsible for providing a reasonable
amount of care to make sure that the property is safe. When an accident occurs , it could be
that the property owner breached his duty of care.
However, with res ipsa loquitur, the breach is so apparent that there is a presumption of the
breach of duty and the plaintiff does not need to provide extensive evidence, if any, of the
breach. Thus, the negligence speaks for itself.
This rule comes up frequently in medical negligence cases. In terms of medical negligence ,
the res ipsa doctrine refers to cases where the doctor's treatment was so far below the
appropriate standard of care such that negligence is assumed.
1.1. Aim(s)
The aim of the research project is to understand the effect of doctrine of Res Ipsa Loquitor.
1.2. Objective(s)
These are the objectives of Research Project:
To understand the concept of Res Ipsa Loquitor.
To understand negligence and medical negligence
To understand the essentials and defences of negligence
To understand the essentials of Res Ipsa Loquitor.
1.3. Research methodology
Approach to Research
In this project doctrinal research was involved. Doctrinal Research is a research in which
secondary sources are used and materials are collected from libraries, archives, etc. Books,
journals, articles were used while making this project.
CHAPTER: 2
CONCEPTUAL FRAMEWORK ON NEGLIGENCE
Failure to exercise the care toward others which a reasonable or prudent person would do in
the circumstances, or acting which, such a reasonable person would not. Negligence is
accidental as distinguished from intentional torts (assault or trespass, for example) or from
crimes, but a crime can also constitute negligence, such as reckless driving.
Negligence can result in all types of accidents causing physical or property damage, but can
also include business errors and miscalculations, such as a sloppy land survey. In making a
claim for damages based on an allegation of another's negligence, the injured party (plaintiff)
must prove:
a) that the party alleged to be negligent had a duty to the injured party-specifically to the one
injured or to the general public.
b) that the defendant's action was negligent-not what a reasonably prudent person would have
done.
c) that the damages were caused by the negligence. An added factor in the formula for
determining negligence is whether the damages were reasonably foreseeable at the time of
the alleged carelessness.1
If the injury is caused by something owned or controlled by the supposedly negligent party,
but how the accident actually occurred is not known, negligence can be found based on the
doctrine of Res Ipsa Loquitor . Negligence is one of the greatest sources of litigation.
1
http://dictionary.law.com/Default.aspx?selected=1314 (October 31st, 2018)
3.1 Concept of Negligence
Negligence is the breach of duty caused by the omission to do something which is reasonable
man, guided by those considerations which ordinarily regulate the conduct of human affairs
would do, or doing something which a prudent and reasonable man would not do. Actionable
negligence consists in the neglect of the use of ordinary care or skill towards a person to
whom the defendant owes the duty of observing ordinary care and skill, by which neglect the
plaintiff has suffered injury to his person or property. Negligence is the breach of a duty
caused by the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs would do, or doing
something which a prudent and reasonable man would not do.2
3.2 Essentials of Negligence
In certain action for negligence, the plaintiff has to prove the following essentials: -
DUTY OF CARE TO THE PLAINTIFF
It means a legal duty rather than a mere moral, religious or social duty. The plaintiff has to
establish that the defendant owed to him a specific legal duty to care, of which he has made a
breach. There is no general rule of law defining such duty. It depends in each case whether a
duty exists3.
Case: Donoghue V. Stevenson
In Donoghue v. Stevenson4 case, A purchased a bottle of ginger beer from a retailer for the
appellant, a lady friend. Some of the contents were poured in a tumbler and she consumed the
same. When the remaining contents of the bottle were poured into her tumbler, the
decomposed body of floated out with her ginger-beer. The appellant alleged that she seriously
2
Bangia Dr. R.K, LAW OF TORTS, Allahabad Law Agency, 23RD ed., Haryana, 2013, p.256
3
Dr. R.K. Bangia, Law of Torts, Allahabad Law Agency, 23rd ed.2013., Pg. no. 224.
4
(1932), A.C. 562
suffered in her health in consequences of having drunk a part of the contaminated contents.
The bottle was of dark opaque glass and closed with a metal cup, so that the contents could
not be ascertained by inspection. She brought an action against the manufacturer for the
damage.
In the above case, Lord Atkin said, “It is remarkable, how difficult it is to find in the English
authorities’ statements of general applications defining the relations between parties that give
rise to the duty. And after propounded the rule in Donoghue v. Stevenson and the same has
gained acceptance: “You must take reasonable care to avoid acts or omission which you can
reasonably foresee would be likely to injure persons so closely and directly affected by your
act and that you ought reasonably to have them in contemplation as being so affected when
you directing your mind to the acts or omissions.”
Defences pleaded by the defendant –
Firstly, he did not owe any duty of care towards the plaintiff. The House of Lords held that
the manufactured owed her a duty to take care that the bottle did not contain any noxious
matter, and that he would be liable on the breach of the duty. Secondly, the plaintiff was a
stranger to the contract and her actions was, therefore, not maintainable.
BREACH OF DUTY
Breach of duty means non-observance of due care which is required in a particular situation.
There is the standard of care required that of a reasonable man or of an ordinary prudent man.
If the defendant has acted like a reasonable man, there is no negligence.
Case: Blyth V. Birmingham Water Works Co.
A plug installed by the defendants, which had worked satisfactory for 25 years, was damaged
due to an exceptionally severe frost in 1855, as a result of which the water escaped, and the
plaintiff’s premises were flooded. It was held that “the defendant had provided against such
frosts as experience would have led man, acting prudently, to provide against; and they were
not guilty of negligence, because their precautions proved insufficient against the effect of the
extreme severity of the frost of 1855, which penetrated to a greater depth than any which
ordinarily occurs south of the polar regions.”
In the above case Alderson B. said, “Negligence is the omission to do something which a
reasonable man, guided upon those considerations which ordinarily regulate the conduct of
human affairs, would do or doing something which a prudent and reasonable man would not
do.” The law requires the caution which prudent man would observe.
The law requires taking two points into consideration to determine the standard of care
required:
a) The importance of the object to be attained
b) The magnitude of the risk
c) The amount of consideration for which services, etc. are offered
In the case Vaughan v. Menlove,5 defendant placed a stack of hay near cottages owned by
Plaintiff in spite of the warning that the hay would ignite. He disregarded these warnings and
kept the hay in place. The hay did ignite, and damage plaintiff’s cottages and plaintiff
brought suit for negligence. It was held that the defendant was liable as he did not take
reasonable care while placing the stack.
DAMAGE
It is also necessary that the defendant’s breach of duty must cause damage to the plaintiff.
The plaintiff has also to show that the damage thus caused is not too remote a consequence of
the defendant’s negligence. In suits in which damages are claimed, the onus, it is held, on the
plaintiff to prove all items of the damages. In such a case, any fact which enables the Court to
determine the amount of damages, which ought to be awarded, is held to be relevant.
Proof of Negligence: Res Ipsa Loquitur
As a general rule, it is for the plaintiff to prove that the defendant was negligent. The initial
burden of making out at least a prima facia case of negligence as against the defendant lies
heavily on the plaintiff, but once this onus is discharged, it will be for the defendant to prove
that the incident was the result of evitable accident or contributory negligence on the part of
the plaintiff.6 If the plaintiff is not able to prove negligence on the part of the defendant, the
defendant cannot be made liable.
There is a presumption of negligence accordingly to the maxim ‘Res Ipsa Loquitur’ which
means ‘the thing speaks for itself’. When the accident explains only one thing and that is that
the accident could not ordinarily occur unless the defendant had been negligent, the law
5
Baum Daniel Jay and Force Robert, TORT LAW, iuniverse, UK,2nd ed., 2008, p. 301
6
Baum Daniel Jay and Force Robert, TORT LAW, iuniverse, UK,2nd ed., 2008, p.201
raises a presumption of negligence on the part of the defendant. The defendant can, however,
avoid his liability by disproving negligence on his part. For the maxim res ipso loquitur to
apply, it is also necessary that the event causing the accident must have been in the control of
the defendant.
Thus, when the circumstances surroundings the thing which cause the damage are at the
material time exclusively under the control or management of the defendant or his servant
and the happening is such as does not occur in the ordinary course of things without
negligence on defendant’s part, the maxim applies, and the burden of proof is shifted from
plaintiff to the defendant.
CHAPTER: 3
MEDICAL AND PROFESSIONAL NEGLIGENCE
Medical negligence is a combination of two words. The second word solely describes the
meaning, though the meaning of negligence has not been described in a proper way it is an
act recklessly done by a person resulting in foreseeable damages to the other. Negligence is
an offense under tort, IPC, Indian Contracts Act, Consumer Protection Act and many more.
Medical Negligence basically is the misconduct by a medical practitioner or doctor by not
providing enough care resulting in a breach of their duties and harming the patients which are
their consumers.
Professionals are persons professing some special skill or job, who are trained to profess in
that area especially and bear the responsibility of professing with due care. Such
professionals include lawyers, doctors, architects etc. The law nowhere states that a
professional shall be held liable if he fails to perform his skills, it states that a professional
shall take a reasonable amount of care and shall possess knowledge as compared to any
practitioner in the same field. The skills of different professionals surely differ from one
another even if they are practicing in the same field but what is required is that a professional
has knowledge of new advances, discoveries, and developments in his field so as to give
essential care to the consumers of his profession. The failure to comply with this which any
ordinary professional would have done properly amounts to professional negligence liable
under the law.7
Case: Jagdish Ram and ors Vs. State of Himachal Pradesh (2008, ACJ 433)
In this case, the Apex court has laid down that in the law of negligence, professionals such as
lawyers, doctors, architect and others are included in the category of those persons who are
especially skilled and trained in their respective fields. Any task or work which requires a
specialized skill is included in a profession. Any person entering in a profession of any
branch requires a particular level of knowledge of that particular branch to be called as a
professional and he is expected to exercise his work with reasonable care. He assures his
7
Paranjape Dr. N.V, LAW OF TORTS CONSUMER PROTECTION LAW IN INDIA, Central Law Agency, 1st
ed., New Delhi, 2008, p. 305
clients that he shall exercise his work with reasonable care and caution, but he does not give
any guarantee of the outcome. A doctor cannot give full assurance to save someone’s life, a
lawyer does not give assurance of succeeding but the only assurance they can give is that they
will perform their work with reasonable care and will render their reasonable efforts towards
their work to satisfy their client.8
4.1.Essentials of Medical Negligence
DOCTORS DUTY TO ATTEND THE PATIENT WITH CARE- Medicine is such a
profession where a practitioner is supposed to have requisite knowledge and skill needed for
the purpose and has a duty to exercise a reasonable duty of care while dealing with the
patient. The standard of the care depends upon the nature of the profession. A surgeon or
anaesthetist will be determined by the standard of an average practitioner in that field while
in case a higher skill is needed.
If the doctor or a specialist doesn’t attend a patient admitted in an emergency or under his
surveillance and the patient dies or becomes a victim of consequences which could have been
avoided with due care from the doctor, the doctor can be held liable under medical
negligence. This was held in Sishir Rajan Saha Vs. The state of Tripura [AIR 2002 Gau
102] that if a doctor did not pay enough attention to the patients in government hospitals as a
result of which the patient suffers, the doctor can be held liable to pay compensation to the
patient. Moreover, the liability of the doctor cannot be invoked now and then and he can’t be
held liable just because something has gone wrong.
DOCTORS ACTING IN A NEGLIGENT MANNER- It is well accepted that in the cases of
gross medical negligence the principle of Res Ipsa Loquitur is to be applied. The principle
of res ipso loquitur is said to be essentially an evidential principle and the said principle is
intended to assist the claimant. Res Ipsa loquitur means things speaks for itself; while
deciding the liability of the doctor it has to be well established that the negligence pointed out
should be a breach in due care which an ordinary practitioner would have been able to keep.
Latin for the thing speaks for itself, a doctrine of law that one is presumed to be negligent if
he/she/it had exclusive control of whatever caused the injury even though there is no specific
evidence of an act of negligence, and without negligence, the accident would not have
happened. A doctor is not an insurer for the patient, inability to cure the patient would not
amount to negligence but carelessness resulting in an adverse condition of the patient would.
8
https://www.legalbites.in/medical-and-professional-negligence (October 31st, 2018)
In Gian Chand vs. Vinod Kumar Sharma [AIR 2008 HP 97] it was held that shifting of the
patient from one ward to another in spite of requirement of instant treatment to be given to
the patient resulting in damage to the patient’s health then the doctor or administrator of the
hospital shall be held liable for negligence. Also, in Jagdish Ram vs. State of Himachal
Pradesh [2008 ACJ 433] it was held that before performing any surgery the chart revealing
information about the amount of anaesthesia ad allergies of the patient should be mentioned
so that an anaesthetist can provide ample amount of medicines to the patient. The doctor in
above case failed to do so as a result of the overdose of anaesthesia the patient died and the
doctor was held liable for the same.9
9
ibid
RES IPSA LOQUITUR
Res ipsa loquitur is a Latin phrase that means “things speak for itself”.In personal injury law,
the concept of res ipsa loquitur (or just "res ipsa" for short) operates as an evidentiary rule
that allows plaintiffs to establish a rebuttable presumption of negligence on the part of the
defendant through the use of circumstantial evidence.
This means that while plaintiffs typically have to prove that the defendant acted with the
negligent state of mind, through res ipsa loquitur, if the plaintiff puts forth certain
circumstantial facts, it becomes the defendant's burden to prove he or she was not negligent.
Res Ipsa Loquitur and Evidence Law: Background
Accidents happen all the time, and the mere fact that an accident has occurred doesn't
necessarily mean that someone's negligence caused it. In order to prove negligence in a
personal injury lawsuit, a plaintiff must present evidence to demonstrate that the defendant's
negligence resulted in the plaintiff's injury. Sometimes, direct evidence of the defendant's
negligence doesn't exist, but plaintiffs can still use circumstantial evidence in order to
establish negligence.
Circumstantial evidence consists of facts that point to negligence as a logical conclusion
rather than demonstrating it outright. This allows judges and juries to infer negligence based
on the totality of the circumstances and the shared knowledge that arises out of human
experience. Res ipsa is one type of circumstantial evidence that allows a reasonable fact
finder to determine that the defendant's negligence caused an unusual event that
subsequently caused injury to the plaintiff.
This doctrine arose out of a case where the plaintiff suffered injuries from a falling barrel of
flour while walking by a warehouse. At the trial, the plaintiff's attorney argued that the facts
spoke for themselves and demonstrated the warehouse's negligence since no other
explanation could account for the cause of the plaintiff's injuries.
As it has developed since then, res ipsa allows judges and juries to apply common sense to a
situation in order to determine whether or not the defendant acted negligently.
KEY ELEMENTS OF RES IPSA LOQUITOR
A claimant can use res ipsa loquitur if:
The thing that caused the damage was under the control of the defendant.
To use res ipsa loquitur it must be shown that the thing causing damage was under the
control of the defendant.
In Easson v London and North Eastern Railway Co [1944] a child, aged 4 years, fell
through a door in the corridor of a train which was in motion and was injured when he
fell onto the railway track. The Court of Appeal held that the open door was not under
the continuous control of the defendant and could have been opened by another
passenger. Res ipsa loquitur could not be used in this case.
The cause of the accident is unknown.
If the cause of the accident is unknown then res ipsa loquitur cannot be used because
the facts no longer ‘speak for themselves’.
In Barkway v South Wales Transport Co Ltd [1950] the claimant's husband was
killed when a tyre burst on a bus he was riding on and the bus crashed. There was
evidence that the tyre had been damaged by receiving heavy blows on the outside.
The House Of Lords stated that res ipsa loquitur could not be used because the facts
were not sufficiently known and these facts needed to be examined and therefore the
claimant’s had to prove their case. It was held that the defendant’s were liable for
negligence for failing to check the type adequately.
The accident is such that would not normally happen without negligence
To use res ipsa loquitur, it must be shown that the accident would not normally occur
without negligence.
In Cassidy v Ministry of Health [1951] the claimant entered hospital for treatment on
two stiff fingers. Due to inadequate post-operative care he was left with four stiff
fingers and a useless hand. The hospital did not attempt to explain how it could have
happened without negligence. The hospital was held to be negligent.
CASES
Pat STALTER v. COCA-COLA BOTTLING COMPANY OF ARKANSAS and
GEYER SPRINGS FOOD CITY, INC.
Appellant shopper challenged the judgment of the Pulaski Circuit Court, Sixth Division
(Arkansas), which, in her personal injury action against appellees soft drink manufacturer and
grocery store, entered directed verdicts for the soft drink manufacturer and the grocery store.
The shopper was injured when a glass soft drink bottle fell through the bottom of a carton she
picked up and broke. She sued both the soft drink manufacturer and the grocery store. The
trial court granted the soft drink manufacturer's and the grocery store's motions for directed
verdicts. On appeal, the court reversed. The shopper was entitled to take her case to the jury
on the theories of res ipsa loquitur and strict liability. Because the soft drink manufacturer
and the grocery store shared control of the carton and owed duties to maintain the premises
and to use care in discovering obvious defects of the carton to the shopper, the
shopper's res ipsa loquitur theory should have been presented to the jury. The court held that
the shopper had presented substantial proof to raise a jury question as to strict liability.
The directed judgments entered in favor of the soft drink manufacturer and the grocery store
in the shopper's personal injury action were reversed and the case was remanded.
Res Ipsa Loquitur can be applied in medical cases and several tort-feasors where the plaintiff
is not able to ascertain as to whose negligent act had caused his injury.
Roe v. Minister of Health
In this case the plaintiff was admitted to the hospital for minor operations. The plaintiff was
administered spinal anaesthetics by injections of nupercaine and developed spastic
paraplegia.
The anaesthetics were stored in glass ampoules immersed in a solution of phenol, and the
judge
found that the injuries were caused by phenol, which could have entered the ampoules
through
flaws not detectable by visual examination. The plaintiff contended that the doctrine of Res
Ipsa Loquitur be applied against the hospital as the injury would not have occurred had the
hospital not been negligent. The court held that the doctrine cannot be applied and the
defendant cannot be held liable as the very occurrence of the injury or damage was not
foreseeable. And the cause for the injury was beyond the control of the defendants. It was
said to be a case of unknown tort-feasance.
Thus, in case of offences which are unintended and the commission of the offence itself was
not known, the defendant cannot be held liable as in this case its an unidentified tortfeasor.
Mint v. Good
The plaintiff had been injured by the collapse of a wall adjoining the highway. The wall
formed
part of two houses let on weekly tenancies and the collapse was due to lack of repair, in
respect
of which neither the landlord nor the tenants were under covenant. The plaintiff proceeded
against the landlord on the basis of Res Ipsa Loquitur that the injury would not have occurred
had the defendant been not negligent in maintaining the wall. It was observed that if a person
is hurt on the highway he must first enquire whether the act which hurt him was incidental to
the defendants reasonable use of the highway. If it was then subject to Res Ipsa Loquitur he
must prove carelessness in the actor. If however the damage is due to an act which the actor
had no right to do on the highway at all, the victim can recover for foreseeable harm without
having to prove carelessness. Thus the defendant was held negligent and liable for damages.
Houghland v. R.R. LOW (luxury of coaches) Ltd.
The plaintiff’s suitcase was deposited with the defendant bus-owner’s driver at the beginning
of a journey. The bus broke down and the luggage was transferred by the owner’s servants
from the bus’s boot to another bus. At the end of the journey the suitcase could not be found.
The plaintiff was awarded damages and the court held that if the luggage had been lost then it
was upto the defendant to prove that he was not negligent, which is nothing but Res Ipsa
Loquitur.
Walsh v. Holst & Co. Ltd
The occupier of premises adjoining the highway was carrying out works of reconstruction,
which involved knocking out large areas of the front wall. He employed for that purpose a
contractor who employed a sub-contractor. Since it was reasonably foreseeable that such a
work on the highway could cause injury to a passer-by the workers had taken all care to
ensure that other road users are safe. However, on one particular day when there was only
worker working at the premises one brick escaped the safety netting and hit a pedestrian who
proceeded against the defendants for the injury sustained on the basis of Res Ipsa Loquitur.
However, the defendants were able to establish that they were not negligent as they had taken
all care to ensure that in no way a road user is injured and what had happened was beyond the
ordinary control of the defendants.
Res Ipsa Loquitur does not apply in cases where reasonable care has been taken and what has
happened is beyond the ordinary control of the defendant.
Bennett v. Chemical Construction (GB) Ltd.
The plaintiff was injured when a panel, which was standing behind a panel which was being
moved by the defendant’s workmen, fell. There were some suggestions that the two panels
had
been tied together, but the judge held that it was not possible to determine precisely how the
accident had happened, but that it could not have occurred without negligence on the
defendant’s workmen’s part. The words;Res Ipsa Loquitur did not appear in the pleadings or
in the judgment. On appeal, held, that the case was a classic example of Res Ipsa Loquitur,
which was adequately covered in the pleadings by the allegation of negligence.
The knowledge of mode in which the injury/accident is not necessary to apply Res Ipsa
Loquitur.It is the occurrence of the injury that is important.
A.S. Mittal and Anr v. State of U.P. and Ors.
The defendants had organized an eye camp at Khurja along with the Lions Club. 88 low-risk
cataract operations were undertaken during the period of the camp. It was however,
disastrous
as many of those who had been operated upon lost their eye sight due to post medical
treatment.
Proceedings against the government initiated for negligence of the doctors. Damages worth
Rs
12500 were paid as interim relief to each of the aggrieved. The decision was on the basis of
Res Ipsa Loquitur as the injury would not have occurred had the doctors not been negligent in
not having followed up with post-operation treatment.
Res Ipsa Loquitur can be applied in matters where all the procedures have not been followed
and is not just limited to the commission of an act.
Achutrao Haribhau Khodwa and Others v. State of Maharashtra and Others
The deceased, the appellant’s relative was admitted to a government hospital for a
sterilization
operation. During the operation however, a mop was left inside the body of the deceased
leading to the pus formation and subsequent death. The appellant approached the Supreme
Court to strike down the High Court order and award damages worth Rs 1,75,000. The
appellant could not have proved the negligence of the doctors and hence the doctrine of Res
Ipsa Loquitur was applied to hold the defendants liable as the court felt that it was a negligent
act of the defendants in leaving the towel which caused the death and that this act was well
within the control of the defendants. Though it is common that certain foreign bodies are
generally left behind in a patients body during an operation, intentionally or unintentionally
and that the body generally
fights the foreign bodies it was observed that leaving a mop was an extremely negligent act.
The order of the High Court was set aside.
Res Ipsa Loquitur cannot be applied for cases of negligence of common occurrence but where
the same negligence is of a very high degree causing serious damage then the maxim can be
applied.
M.C.Mehta v. Union of India
More popularly known as the Olium gas leak case, this is a Public Interest Litigation
regarding
the establishment of enterprises involved in hazardous works in thickly populated areas in the
light of the Olium gas leak. The Olium gas leak had occurred in the work premises of
Shriram
Mills. Olium is a hazardous gas and this nature of the gas had caused the death of many
people
and causing serious injuries to the health of others stying in the close vicinity. It was not
possible to establish negligence of the mill owners and Res Ipsa Loquitur was applied to shift
the burden of proof on the mill owners to show that they were not negligent. In the PIL it was
pleaded that any industry involved in cases of injuries/damage due to the hazardous activities
it undertakes then the onus must be on them prima facie to establish that they were not
negligent. In this case the maxim was made use of to establish negligence and they were held
liable for the damage and injury caused. It was further held that any company involved in
hazardous activities will be held negligent prima facie and it is upto them to lead the evidence
and prove how they are not negligent failing which they will be held liable.
Conclusion
In Res Ipsa Loquitur, the defendant will lead evidence. There is a two step process to
establishing Res Ipsa Loquitur-
1. Whether the accident is the kind that would usually be caused by negligence.
2. Whether or not the defendant had exclusive control over the instrumentality that caused the
accident.
If found, Res Ipsa Loquitur creates an inference of negligence.
Res Ipsa Loquitur finds its applicability in a variety of situations. In the United States it is
mostly applied in cases of commercial airplane accidents and road and traffic accidents.
Generally, it is applied in cases of medical negligence where it cannot be ascertained as to
which specific act of the hospital had caused the injury and where the situation is never
outside the control of the hospitals.
Res Ipsa Loquitur is finding increasing applicability in the modern era. It is applied in cases
of industries like the use of the maxim in the M.C.Mehta v. Union of India popularly known
as the olium gas leak case and generally all cases where the rights of the public is violated
and they have been aggrieved and it is not possible for them to establish negligence. So the
onus of not proving negligence is shifted to the defendants.
It 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 upto him to prove why he is not
negligent.
