Res ipsa loquitur: Difference between revisions

In the [[common law]] of [[tort]]s, '''''resRes ipsa loquitur''''' (Latin for: "the thing speaks for itself") is a doctrine thatin infers[[common law]] and [[Roman-Dutch law]] jurisdictions under which a court can infer negligence from the very nature of an accident or injury in the absence of direct evidence on how any [[defendant]] behaved. Although modern formulations differ by jurisdiction, [[common law]] originally stated thatin the accident must satisfy the necessary [[Element (criminal law)|elements]]context of [[negligencetort]]: duty, breach of duty, causation, and injurylitigation. In ''res ipsa loquitur'', the elements of [[duty of care]], [[breach of contract|breach]], and causation are inferred from an injury that does not ordinarily occur without negligence.

The term comes from [[List of Latin phrases|Latin]] and is literally translated "the thing itself speaks", but the sense is well conveyed in the more common translation, "the thing speaks for itself".<ref name="translating">{{cite web|url=https://books.google.com/books?id=vhY8AAAAIAAJ&pg=PA571&dq=%22the+thing+itself+speaks%22+%22the+thing+speaks+for+itself%22&as_brr=3&ei=s_eBS7ScBYi0zQSkgP2oCw&cd=2#v=onepage&q=%22the+thing+itself+speaks%22+%22the+thing+speaks+for+itself%22&fpg=falsePA571|title=The Northwestern Reporter|date=30 September 2017|publisher=West Publishing Company|accessdateaccess-date=30 September 2017|via=Google Books}}</ref> The earliest known use of the phrase was by [[Cicero]] in his defencedefense speech ''[[Pro Milone]]''.<ref>{{cite web|url=httphttps://www.perseus.tufts.edu/hopper/text?doc=Cic.+Mil.+53&fromdoc=Perseus:text:1999.02.0011|title=M. Tullius Cicero, For Milo, section 53|website=Perseus.tufts.edu|accessdateaccess-date=30 September 2017}}</ref><ref>{{cite book|title=Medical jurisprudence|page=88|author=Jon R. Waltz|author2=Fred Edward Inbau |publisher=Macmillan|year=1971|ISBNisbn=0-02-424430-9}}</ref> The circumstances of the genesis of the phrase and application by Cicero in Roman legal trials has led to questions whether it reflects on the quality of ''res ipsa loquitur'' as a legal doctrine subsequent to 52 BC, some 1915 years before the [[English law|English]] case ''[[Byrne v Boadle]]'' and the question whether [[Charles Edward Pollock]] might have taken direct inspiration from Cicero's application of the maxim in writing his judgment in that case.<ref>{{cite web|url=http://officialinformationact.blogspot.co.nz/2012/10/the-thing-speaks-for-itself-usually-but.html|title=The thing speaks for itself usually, but it didn't show up, so we brought you this instead.|website=officialinformationact.blogspot.co.nz|accessdateaccess-date=30 September 2017}}</ref>

#The defendant's non-negligent explanation does not completely explain plaintiff’splaintiff's injury.

The common law traditionally required "the instrumentality or agent which caused the accident was under the exclusive control of the defendant.". See e.g., ''Eaton v. Eaton'', 575 A2d 858 (NJ 1990). However, in the United States the second and the third versions of the [[Restatement of Torts]] eliminated the strict requirement because it can be difficult to prove "exclusive control". Accordingly, the element has largely given way in modern American cases to a less rigid formulation: the evidence must eliminate, to a sufficient degree, other responsible causes (including the conduct of the plaintiff and [[third party beneficiary|third parties]]). For example, in [[New York State]], 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 does not need to be eliminated altogether but must be so reduced that the greater probability lies with the defendant.

*John sues Jane,. who Jane claims that his complaint should be dismissed because he has never proved or even offered a theory as to why the elevator functioned incorrectly. Therefore, she argues that there is no evidence that they were at fault.

''Res ipsa loquitur'' often arises in the "[[scalpel]] left behind" variety of case. For example, a person goes to a doctor with abdominal pains after having his appendix removed. X-rays show the patient has a metal object the size and shape of a scalpel in his abdomen. It requires no further explanation to show the surgeon who removed the appendix was negligent, as there is no legitimate reason for a doctor to leave a scalpel in a body at the end of an appendectomy.<ref>{{cite web| url= https://www.solarlaw.co.il/ |title= Medical Malpractice Guide }} Tuesday, 31 December 2019</ref>

The Irish courts have applied the doctrine. In ''Hanrahan v. Merck, Sharp & Dohme (Ireland) Ltd.'' [1988] ILRM 629 the supreme court held that in cases of nuisance the burden of proof could be shifted to the defendant where it would be palpably unfair for the plaintiff to have to prove something beyond their reach. The facts concerned poisoning of farm animals downwind of a chemical plant.<ref>{{cite web|last1=McGrath|first1=Andrew|title=The Hanrahan Judgement: State, Big Pharma and the Future of Incineration|url=http://www.tara-foundation.org/the-Hanrahan-Judgement.php|website=The Tara Foundation|accessdateaccess-date=1 December 2017}}</ref>

In ''Rothwell v. The Motor Insurers Bureau of Ireland'' [2003] 1 IR 268 the supreme court held the burden of proof would shift when the knowledge is exclusive to the defendant, but also where it is "especially within the range" of the defendant’sdefendant's capacity to probe the facts.

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 does not however fully reverse the [[legal burden of proof|burden of proof]] (''Ng Chun Pui v. Li Chuen Tat'', 1988).<ref>{{citation|year=1988|publication-placelocation=RTR|section=298|title=Ng Chun Pui v. Li Chuen Tat}}</ref>

The requirement of control is important in English law. This requirement was not satisfied in ''Easson v. LNE Ry'' [1944] 2 KB 421, where a small child fell off a train several miles after it had left the station. It was considered that the door of the train was not sufficiently under control of the railway company after the train started moving and could have been opened by somebody for whom the company was not responsible. This case was distinguished from the earlier ''Gee v. Metropolitan Ry''<ref>{{citation|year=1873|publication-placelocation=LR QB|section=161|title=Gee v. Metropolitan Ry}}</ref> where the plaintiff 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''.<ref>{{citation|year=1950|publication-placelocation=1 All ER |section=392|title=[[Barkway v. South Wales Transport]]}}</ref> In this case a bus veered across the road and it was known that the accident was caused by a flat tyre. In this case, the plaintiff could not be assisted by ''res ipsa loquitur'' and had to go on to prove that the flat tyre was caused by the transport company's negligence.

In ''Scott'', the court held that sacks of sugar do not fall out of warehouses and crush passers-by without somebody having been negligent along the way, so the plaintiff did not need to show how it happened.

Recent examples in Scotland are ''McDyer v Celtic Football Club''<ref>{{citation|year=2000|title=McDyer v. Celtic Football Club|publication-placelocation=SC|section=379|url=http://www.bailii.org/scot/cases/ScotCS/2000/55.html}}</ref> and ''McQueen v The Glasgow Garden Festival 1988 Ltd''.<ref>{{citation|title=McQueen v The Glasgow Garden Festival 1988 Ltd|year=1995|publication-placelocation=SLT|section=211}}</ref>

#The type of negligence in question falls within the scope of the defendant's duty to the plaintiff.<ref>{{cite web|url=http://injury.findlaw.com/accident-injury-law/res-ipsa-loquitur.html|title=Res Ipsa Loquitur |website=Injury.findlaw.com|accessdateaccess-date=30 September 2017}}</ref>

Most American courts recognize ''res ipsa loquitur''. The [[Restatement of theTorts, LawSecond|Restatement]] (Second) of Torts]], § 328D describes a two-step process for establishing ''res ipsa loquitur''. The first step is whether the accident is the kind usually 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 loquitur'' creates an inference of negligence, although in most cases it does not necessarily result in a directed verdict. The Restatement (Third) of Torts, § 17, adopts a similar test, although it eschews the exclusive control element.

A contention of ''res ipsa loquitur'' commonly is made in cases of commercial airplane accidents. It was part of the commentary in a train collision in [[California]] in 2008: "If two trains are in the same place at the same time, someonesomebody's made a wasterrible negligentmistake."<ref>{{cite web|last1=Bernard|first1=Kirk|title=California Metrolink Train Accident Caused By Engineer's Error|url=http://www.seattleinjuryblog.com/2008/09/california_metrolink_train_acc.html|website=Seattle Injury Blog|accessdatedate=15 September 2008 |access-date=19 February 2015}}</ref>

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