Tort - Res ipsa loquitur

Res ipsa loquitur simply means that the thing speaks for itself. In instances where the courts apply the principle, the burden of proof shifts to the defendant. The maxim is normally applied in instances where the cause of the damage, injury or illness is unknown and it is up to defendant to rebut the presumption that he or she had caused the accident, injury or illness.

In Mahon v Osborne (1931) a patient died shortly after a surgery and the post mortem revealed that the surgeon who had conducted the surgery had negligently left a cotton swab in the patient’s body. The court held that there was no need to look any further and that the cotton swab was sufficient prove that the defendant had been negligent and had breached his duty of care i.e. the thing (the cotton swab) speaks for itself (res ipsa loquitur).

The fact that the cotton swab was present in the body of the deceased was sufficient evidence that the defendant was guilty and the court need not look any further to imply or impose liability.

In order for the maxim or the principle to apply three factors must be established:-

i) The defendant must have control or must be able to exert control of the thing that caused the damage. In Mahon v Osborne (1931) the defendant had all the control in the world over the cotton swab and the fact that he did not notice that the cotton swab remained in the body once he had completed the surgery clearly implies that he was negligent or implicates him.

In Gee v Metropolitan Railway (1873) the plaintiff was injured when the train moved as he was about to disembark and as a result he suffered or sustained injury. The train was clearly in the control of the driver and would not have moved without his intervention. The court held that the defendant was liable and the plaintiff was successful.

It is worth comparing the decision in Gee v Metropolitan Railway (1873) with that in Easson v London North Eastern Railway (1944). In the latter case the plaintiff fell out of a carriage door because it was left open. The plaintiff sued and it was established during the trial that the carriage door was left open by one of the passengers. The court held that the defendant was not liable because it could not be established with any degree of certainty that it was his negligence that caused the plaintiff’s injuries. Moreover it was fairly obvious from the facts that the defendant did not have any control over the carriage doors.

ii) The damage or the injury must be the result of the defendant’s carelessness and it must be the type of damage that would not have occurred otherwise i.e. with the exception of the defendant’s negligence there could be no other cause or causes for the damage, illness or injury. In Scott v London and St Katherine Docks (1865) the defendant was injured when 6 bags of sugar landed on his head from where they were perched at the top of the defendants’ warehouse. In addition to the fact that the plaintiff would not have been injured but for the defendants negligence, it could be said with some degree of certainty that the accident, which would otherwise not have happened, could have only occurred as a result of the defendants carelessness. It is worth adding that the type of mishap in this instance (Scott v London and St Katherine Docks (1865)) was something out of the ordinarily and could only be precipitated by the negligent act of the blameworthy party.

iii) thirdly instead of the plaintiff establishing or proving, normally by adducing evidence, that it was the action or inaction of the defendant that had caused the damage, injury or illness, it is now up to the defendant to prove that he did not cause the damage, injury or illness i.e. res ipsa loquitur reverses the burden of proof or instead of the plaintiff proving that the defendant had caused the damage, injury or illness it is now up to the defendant to disprove that he or she had caused the damage, injury or illness.

In Barkway v South Wales Transport (1980) an omnibus (which simple means a bus that is available for all) veered to the pavement and as a result injured the plaintiff. Omnibuses were generally only meant to be driven on the road and the fact that the bus had made its way to the pavement was enough for the court to infer liability. The mishap was most likely due to either the driver’s negligence or some defect in the bus which prompted or compelled the driver to steer away from the normal route. It was now up to the driver or the bus company to disprove that the injury to the plaintiff was not caused by the driver’s negligence.

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