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''Res ipsa loquitur'' (Latin: ''"the thing speaks for itself"'') is a doctrine in the common law and
Roman-Dutch law Roman-Dutch law (Dutch: ''Rooms-Hollands recht'', Afrikaans: ''Romeins-Hollandse reg'') is an uncodified, scholarship-driven, and judge-made legal system based on Roman law as applied in the Netherlands in the 17th and 18th centuries. As such, ...
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 In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one jurisdic ...
behaved in the context of
tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
litigation. Although specific criteria differ by jurisdiction, an action typically must satisfy the following elements of
negligence Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...
: the existence of a
duty of care In tort law, a duty of care is a legal obligation that is imposed on an individual, requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be establish ...
, breach of appropriate standard of care, causation, and injury. In ''res ipsa loquitur'', the existence of the first three elements is inferred from the existence of injury that does not ordinarily occur without negligence.


History

The term comes from
Latin Latin (, or , ) is a classical language belonging to the Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Tiber area (then known as Latium) around present-day Rome, but through the power of the ...
and is literally translated "the thing itself speaks", but the sense is well conveyed in the more common translation, "the thing speaks for itself". The earliest known use of the phrase was by
Cicero Marcus Tullius Cicero ( ; ; 3 January 106 BC – 7 December 43 BC) was a Roman statesman, lawyer, scholar, philosopher, and academic skeptic, who tried to uphold optimate principles during the political crises that led to the esta ...
in his defence speech ''
Pro Milone The "Pro Tito Annio Milone ad iudicem oratio" (Pro Milone) is a speech made by Marcus Tullius Cicero in 52 BC on behalf of his friend Titus Annius Milo. Milo was accused of murdering his political enemy Publius Clodius Pulcher on the Via Appia. Cic ...
''. 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 English usually refers to: * English language * English people English may also refer to: Peoples, culture, and language * ''English'', an adjective for something of, from, or related to England ** English national ide ...
case ''
Byrne v Boadle ''Byrne v Boadle'' (2 Hurl. & Colt. 722, 159 Eng. Rep. 299, 1863) is an English tort law case that first applied the doctrine of ''res ipsa loquitur''. Facts A barrel of flour fell from a second-story loft and hit the plaintiff on his head. Tho ...
'' 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.


Elements

#The injury is of the kind that does not ordinarily occur without negligence or is uncommon in the course and nature of said act. #The injury is caused by an agency or instrumentality within the exclusive control of the defendant. #The injury-causing accident is not by any voluntary action or contribution on the part of the plaintiff. #The defendant's non-negligent explanation does not completely explain plaintiff's injury. The first element may be satisfied in one of three ways: The second element is discussed further in the section below. The third element requires the absence of contributory negligence from the plaintiff. The fourth element emphasizes that defendant may defeat a ''res ipsa loquitur'' claim by producing evidence of a non-negligent scenario that would completely explain plaintiff's injury and negate all possible inferences that negligence could have occurred.


Exclusive control requirement

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 In American jurisprudence, the ''Restatements of the Law'' are a set of treatises on legal subjects that seek to inform judges and lawyers about general principles of common law. There are now four series of ''Restatements'', all published by the ...
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 parties). For example, in
New York State New York, officially the State of New York, is a state in the Northeastern United States. It is often called New York State to distinguish it from its largest city, New York City. With a total area of , New York is the 27th-largest U.S. sta ...
, 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. Here is a fictitious example: *
John Doe John Doe (male) and Jane Doe (female) are multiple-use placeholder names that are used when the true name of a person is unknown or is being intentionally concealed. In the context of law enforcement in the United States, such names are ofte ...
is injured when an
elevator An elevator or lift is a cable-assisted, hydraulic cylinder-assisted, or roller-track assisted machine that vertically transports people or freight between floors, levels, or decks of a building, vessel, or other structure. They are ...
he has entered plunges several floors and stops abruptly. *Jane's Corporation built and is responsible for maintaining the elevator. *John sues Jane, who 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. *The court holds that John does not have to prove anything beyond the fall itself. **The elevator evidently malfunctioned (it was not intended to fall, and that is not a proper function of a correctly-functioning elevator). **Jane was responsible for the elevator in every respect. ** Therefore, Jane's Corporation is responsible for the fall. *The thing speaks for itself: no further explanation is needed to establish the ''
prima facie ''Prima facie'' (; ) is a Latin expression meaning ''at first sight'' or ''based on first impression''. The literal translation would be 'at first face' or 'at first appearance', from the feminine forms of ''primus'' ('first') and ''facies'' (' ...
'' case. In some cases, a closed group of people may be held in breach of a duty of care under the rule of ''res ipsa loquitur''. In '' Ybarra v. Spangard'', a patient undergoing surgery experienced back complications as a result of the surgery, but it could not be determined the specific member of the surgical team who had breached the duty so it was held that they had all breached, as it was certain that at least one of them was the only person who was in exclusive control of the instrumentality of harm. In jurisdictions that employ this less rigid formulation of exclusive control, the element subsumes the element that the plaintiff did not contribute to his injury. In modern
case law Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of a le ...
, contributory negligence is compared to the injury caused by the other. For example, if the negligence of the other is 95% of the cause of the plaintiff's injury, and the plaintiff is 5% responsible, the plaintiff's slight fault cannot negate the negligence of the other. The new type of split liability is commonly called '' comparative negligence''.


Typical in medical malpractice

''Res ipsa loquitur'' often arises in the "
scalpel A scalpel, lancet, or bistoury is a small and extremely sharp bladed instrument used for surgery, anatomical dissection, podiatry and various arts and crafts (either called a hobby knife or an X-acto knife.). Scalpels may be single-use dispos ...
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.


Examples by jurisdictions


Canada

In Canada the doctrine of ''res ipsa loquitur'' has been largely overturned by the
Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
. 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 contributorily 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

Hong Kong is one of the common law jurisdictions that use the doctrine of ''res ipsa loquitur''. Some lawyers prefer to avoid the expression ''res ipsa loquitur'' (for example, Hobhouse LJ in ''Radcliff v. Plymouth''). But other lawyers (and judges too) still find the expression a convenient one (for example, see the judgement of Mr Justice Bokhary, a Permanent Judge of the Court of Final Appeal of Hong Kong, in ''Sanfield Building Contractors Ltd v. Li Kai Cheong''). The expression ''res ipsa loquitur'' is not a
doctrine Doctrine (from la, doctrina, meaning "teaching, instruction") is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the essence of teachings in a given branch of knowledge or in a belief system ...
but a "mode of inferential reasoning" and applies only to accidents of ''unknown cause''. ''Res ipsa loquitur'' comes into play where an accident of unknown cause is one that would not normally happen without
negligence Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...
on the part of the
defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one jurisdic ...
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 Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...
on the
defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one jurisdic ...
's part unless he offers an acceptable explanation consistent with his having taken
reasonable care In tort law, a duty of care is a legal obligation that is imposed on an individual, requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be establis ...
.


Ireland

The Irish courts have applied the doctrine. In ''Hanrahan v. Merck, Sharp & Dohme (Ireland) Ltd.''
988 Year 988 ( CMLXXXVIII) was a leap year starting on Sunday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * Fall – Emperor Basil II, supported by a contingent of 6,000 Varangians ...
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. In ''Rothwell v. The Motor Insurers Bureau of Ireland''
003 003, O03, 0O3, OO3 may refer to: *003, fictional British 00 Agent *003, former emergency telephone number for the Norwegian ambulance service (until 1986) *1990 OO3, the asteroid 6131 Towen * OO3 gauge model railway *''O03 (O2)'' and other related ...
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's capacity to probe the facts.


South Africa

In
South African law South Africa has a 'hybrid' or 'mixed' legal system, formed by the interweaving of a number of distinct legal traditions: a civil law system inherited from the Dutch, a common law system inherited from the British, and a customary law syste ...
(which is modelled on Roman Dutch law), there is no doctrine of ''res ipsa loquitur'', although the phrase is used regularly to mean the "facts speak for themselves". ''Res ipsa loquitur'' does not shift any burden of proof or onus from one party to the other. The phrase is merely a handy phrase used by lawyers.


United Kingdom

The doctrine exists in both
English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, be ...
and
Scots law Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland l ...
.


England and Wales

In
English tort law English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil, rather than criminal law, that usually requi ...
, 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 burden of proof (''Ng Chun Pui v. Li Chuen Tat'', 1988). The requirement of control is important in English law. This requirement was not satisfied in ''Easson v. LNE Ry'' 9442 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'' 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''. 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.


Scotland

The doctrine exists in the Scots law of ''
delict Delict (from Latin ''dēlictum'', past participle of ''dēlinquere'' ‘to be at fault, offend’) is a term in civil and mixed law jurisdictions whose exact meaning varies from jurisdiction to jurisdiction but is always centered on the notion o ...
''. The leading case is that of ''Scott v London & Catherine Dock Co''. This case laid down 3 requirements for the doctrine to apply: #There must be reasonable evidence of negligence #The circumstances must be under the direct control of the defender or his servants #The accident must be of such a type that would not occur without 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 need not to show how it happened. Recent examples in Scotland are ''McDyer v Celtic Football Club'' and ''McQueen v The Glasgow Garden Festival 1988 Ltd''.


United States

Under United States common law, ''res ipsa loquitur'' has the following requirements: #The event does not normally occur unless someone has acted negligently; #The evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and #The type of negligence in question falls within the scope of the defendant's duty to the plaintiff. Most American courts recognize ''res ipsa loquitur''. The 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. The doctrine was not initially welcome in medical malpractice cases. In ''Gray v. Wright'', a seven-inch
hemostat A hemostat (also called a hemostatic clamp, arterial forceps, or pean after Jules-Émile Péan) is a surgical tool used in many surgical procedures to control bleeding. For this reason, it is common in the initial phases of surgery for the init ...
was left in Mrs. Gray during gallbladder surgery in June 1947, and despite her chronic complaints about stomach pain over the years, the device was not found until an X-ray in March 1953, when it was removed. Her $12,000 award was reversed by the Supreme Court of West Virginia because she was outside the statute of limitations when she filed and could not prove that the doctor concealed knowledge of his error. This "guilty knowledge" requirement disappeared over the years, and the "discovery rule" by which statutes of limitation run from the date of discovery of the wrongdoing rather than the date of the occurrence has become the rule in most states. Forty years later, leaving a medical device in a patient was medical malpractice, provable without expert testimony, in almost every jurisdiction.
Virginia Virginia, officially the Commonwealth of Virginia, is a state in the Mid-Atlantic and Southeastern regions of the United States, between the Atlantic Coast and the Appalachian Mountains. The geography and climate of the Commonwealth are ...
has limited the rule. The Virginia Supreme Court stated in 1996: "Almost 60 years ago, this Court, discussing res ipsa loquitur, said: 'In Virginia the doctrine, if not entirely abolished, has been limited and restricted to a very material extent.' ''City of Richmond v. Hood Rubber Products Co.'', 168 Va. 11, 17, 190 S.E. 95, 98 (1937). ... It may be utilized only when the circumstances of the incident, without further proof, are such that, in the ordinary course of events, the incident could not have happened except on the theory of negligence." 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, someone was negligent." In some states, the doctrine of ''res ipsa loquitur'' is also used as a method of proving the
intent Intentions are mental states in which the agent commits themselves to a course of action. Having the plan to visit the zoo tomorrow is an example of an intention. The action plan is the ''content'' of the intention while the commitment is the ''a ...
or ''
mens rea In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...
'' element of the
inchoate crime An inchoate offense, preliminary crime, inchoate crime or incomplete crime is a crime of preparing for or seeking to commit another crime. The most common example of an inchoate offense is "attempt". "Inchoate offense" has been defined as the fol ...
of
attempt An attempt to commit a crime occurs if a criminal has an intent to commit a crime and takes a substantial step toward completing the crime, but for reasons not intended by the criminal, the final resulting crime does not occur.''Criminal Law - ...
. Under the
Model Penal Code The Model Penal Code (MPC) is a model act designed to stimulate and assist U.S. state legislatures to update and standardize the penal law of the United States.MPC (Foreword). The MPC was a project of the American Law Institute (ALI), and was pu ...
, "the behavior in question is thought to corroborate the defendant's criminal purpose", Frank Schmalleger, ''Criminal Law Today: An Introduction with Capstone Cases", p. 115, N. 29, citing
Model Penal Code The Model Penal Code (MPC) is a model act designed to stimulate and assist U.S. state legislatures to update and standardize the penal law of the United States.MPC (Foreword). The MPC was a project of the American Law Institute (ALI), and was pu ...
, § 5.01 (2).
for example:


References

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