RESEARCH METHODOLOGY1

It is a non-doctrinal research i.e. a research of legal preposition by the way of analyzing of the
existing statutory provision along with the present case laws by applying the reasoning power
of researcher. It is also known as empirical legal research. Even empirical technique is also
called as fact research.

HYPOTHESIS

If the facts of a case are such that it is sufficient to presume that defendant is liable then, the
maxim “Res Ipsa Loquitur” will apply.

If the maxim “Res Ipsa Loquitur” is not applicable for a particular case then, the plaintiff has
to prove that the defendant is liable for his injuries.

The Plaintiff has no need to prove that the defendant is liable for negligence when the maxim
of “Res Ipsa Loquitur” is applying for his case.

LITERATURE REVIEW
This research project is about Principles of Res Ipsa Loquitur under Law of Torts. It is a legal
maxim which means “Thing speak for itself”. This principle is applied to those cases where the
plaintiff need not to prove anything because the accident is itself evidence of harm but the
plaintiff has to prove that he did not contributed to the harm. It is mostly seen in medical cases
where doctor negligently left something in patient’s abdomen during the operation, then the
patient need not to prove that the doctor has done it or not.

1
Systematic analysis
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 INTRODUCTION TO RES IPSA LOQUITUR

Res Ipsa loquitur is a Legal maxim which means “Thing Speaks for Itself”. It is used to refer
to a doctrine of law in which an individual is assumed to have been negligent because he had
exclusive control over the incident that caused the injury or damages.

The principle of Res Ipsa Loquitur was first put forward by J. Baron Pollock2 in Byrne v.
Boadle3. Byrne was struck by a barrel of flour falling from a second-storey window. The court's
presumption was that a barrel of flour falling out of a second-storey window is itself sufficient
evidence of negligence.

Res Ipsa Loquitur is a maxim, the application of which shifts the burden of proof on the
defendant. Generally, in a case it is the plaintiff who has to provide evidence to prove the
defendant's negligence. There is however, a change when this maxim is used. The burden of
proof shifts to the defendant. There is a presumption of negligence on part of the defendant and
it is up to him to prove his non-liability and that it was not his act which caused the plaintiff's
injury. The defendant leads the evidence.

Res Ipsa Loquitur often arises in the case of medical malpractice.

Though, as a general rule, the plaintiff has to discharge the burden of proving negligence on
the part of the defendant, there are, however, certain cases when the plaintiff need not prove
that and the inference of negligence is drawn from the facts. There is a presumption of
negligence accordingly to the maxim ‘Res Ipsa Loquitur’ which means ‘the thing speaks for
itself’.

2
First person to put forward the maxim “res ipsa loquitur”
3
English tort law case
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 ELEMENTS OF RES IPSA LOQUITUR4

Using the principle of res ipsa loquitur in a civil lawsuit requires the plaintiff to prove several
specific elements existed at the time of the incident. These include:

1. The injury or damages sustained could not, under ordinary circumstances, occur
without negligence on the part of the defendant.

Certain circumstances exist which leave little to no doubt as to the defendant’s negligence or
culpability for the harm suffered by the plaintiff. This may be proven in one of three ways:

• The injury or damage itself proves blatant or obvious negligence, such as a surgical
team leaving instruments inside a patient’s body.
• Society’s general experience and observation are adequate to support the claim of
negligence, such as a surgeon performing a hysterectomy on a patient who only
consented to having her tubes tied.
• Expert testimony strongly suggests that the injury could only have been caused by
negligence, such as an experienced surgeon testifying that, having performed many
appendectomies, he has never damaged a patient’s liver, which is not located near
the appendix, nor does he know of any of his colleagues who have caused injury to
a patient’s liver during an appendectomy.

2. The object or occurrence that caused the injury or damages was within the defendant’s
exclusive control.

The requirement that the circumstance, event, or object that caused the plaintiff’s injury
or damages be under the defendant’s exclusive control has been modified over the
years, as proving exclusive control can be quite difficult. The less rigid requirement of
this element of res ipsa loquitur requires that evidence essentially eliminates, to a great
degree, other possible causes or other responsible parties, for the injury or damages.

3. The incident did not occur due to any voluntary action of, or participation by, the
plaintiff.

4
http://www.legalserviceindia.com/articles/Res_Ipsa_Loquitur.htm

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The third element of res ipsa loquitur involves showing that the plaintiff did nothing to
contribute to his own injury or damages.

4. The defendant’s explanation of non-negligence does not adequately explain the

The fourth element of res ipsa loquitur recognizes that a defendant can overcome a res ipsa
loquitur claim by presenting evidence that a non-negligent occurrence fully accounts for
the plaintiff’s injury or damages. In the event the defendant’s explanation in such a situation
does not add up or fully explain the plaintiff’s damages, this defence may fail.

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 USE OF RES IPSA LOQUITUR
The doctrine of res ipsa loquitur may be used as a “rebuttal presumption5” when a defendant
accused of negligently causing injury or damages asserts there is no proof of his involvement
or negligence. When an individual files a civil lawsuit seeking payment for damages caused by
the defendant’s negligence, he must prove to the judge or jury that:

1. The defendant had a duty to perform in a certain manner

2. The defendant breached that duty or performed negligently

3. The defendant’s breach of duty caused the plaintiff’s damages

In the event the defendant denies having acted negligently, the plaintiff may, according to res
ipsa loquitur, rebut the defendant’s claim, pointing out that the incident could not have occurred
unless there was some negligence.

For example: -

John walks her dog, Sadie, several blocks to the dog park every afternoon around 4 p.m. On
Tuesday, as John and Sadie were passing a neighbour’s house, his husky charged out from the
side of the property and attacked Sadie. Another neighbour helped get the husky off Sadie,
though she was seriously injured, and John had been bitten twice.

When John presented her veterinary and medical bills to the dog’s owner, he refused to pay,
saying he doesn’t know whether it was really his dog that attacked the pair, and that his dog is
always locked in the back yard. When John takes her claim to small claims court, suing the
neighbour for medical and vet bills, the neighbour states that he is diligent in keeping his dog
in the back yard, and so someone must have let it out, which is not his fault.

The judge rules in John’s favour, and awards her the full amount of damages, explaining to the
defendant that, even though there is no proof that he personally let the dog out, he is always
responsible for keeping the dog safely confined. According to the doctrine of res ipsa loquitur,
the incident could not have happened without negligence, and so the responsibility belongs to
the defendant.

5
In latin, praesumptio iuris tantum which means an assumption made by a court that is taken to be true
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 EXCLUSIVE CONTROL BY THE DEFENDANT
The plaintiff's injury or damage must have been caused by an instrumentality or condition that
was within the exclusive control of the defendant at the time of injury.

Since there must be exclusive control by the defendant, res ipsa loquitur cannot be used against multiple
defendants in a negligence case where the plaintiff claims he has been injured by the negligence of
another. For example, a pedestrian is injured when he is struck by a car that had just collided with
another vehicle. The pedestrian institutes a negligence action against one driver and seeks to have res
ipsa loquitur applied to his case. An inference of negligence does not arise from the mere fact of the
collision, since neither driver is in exclusive control of the situation. If, however, one driver is cleared
of fault by some specific evidence, the jury is justified in inferring that the injury was the result of the
other driver's negligence.

EFFECT OF RES IPSA LOQUITUR

Res ipsa loquitur is usually used when there is no direct evidence of the defendant's negligence.
The facts presented to the court must meet the three basic requirements. Once the court decides
that the facts of a particular case warrant the application of res ipsa loquitur, it instructs the jury
on the basic principles, but it is the function of the jury to decide the credibility and weight of
the inference to be drawn from the known facts. The jury can conclude that the defendant was
negligent, but the jury is not compelled to do so. Everything depends upon the particular facts
of each case. An inference of negligence might be so clear that no reasonable person could fail
to accept it. If the defendant offers no explanation, the court can direct a verdict for the plaintiff
if the inference is so strong that reasonable jurors could not reach any other conclusion. Where
the jury considers the question of negligence, it can decide that the facts do not logically lead
to an inference of the defendant's negligence, even if the defendant did not offer any evidence
in her defence. If the defendant presents evidence that makes it unlikely that she has acted
negligently, the plaintiff will lose his case unless he can rebut the evidence, since such evidence
destroys the inference of negligence created by res ipsa loquitur.

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 TYPICAL IN MEDICAL MALPRACTICE

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.

Example: - John walks her dog, Sadie, several blocks to the dog park every afternoon around
4 p.m. On Tuesday, as John and Sadie were passing a neighbour’s house, his husky charged
out from the side of the property and attacked Sadie. Another neighbour helped get the husky
off Sadie, though she was seriously injured, and John had been bitten twice.

When John presented her veterinary and medical bills to the dog’s owner, he refused to pay,
saying he doesn’t know whether it was really his dog that attacked the pair, and that his dog is
always locked in the back yard. When John takes her claim to small claims court, suing the
neighbour for the medical and vet bills, the neighbour states that he is diligent in keeping his
dog in the back yard, and so someone must have let it out, which is not his fault.

The judge rules in John’s favour, and awards her the full amount of damages, explaining to the
defendant that, even though there is no proof that he personally let the dog out, he is always
responsible for keeping the dog safely confined. According to the doctrine of res ipsa loquitur,
the incident could not have happened without negligence, and so the responsibility belongs to
the defendant.

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 RES IPSA LOQUITUR V. PRIMA FACIE6

The term res ipsa loquitur is frequently confused with the term prima facie, though there is a
significant difference between the two as used in the legal system. Res ipsa loquitur refers to a
situation in which the facts of a case make it self-evident that the defendant’s negligence caused
the plaintiff’s injury or damages. Prima facie, which means “at first glance,” refers to the fact
that enough evidence exists, if taken at face value, to file charges or pursue a legal action.

It is said that it does not apply if the cause of harm is known. However, it can be said that some
part of the causal process is known but what is lacking is its relation or connection with the
defendant. When the fact of control is the cause for the harm it must be shown that the thing in
his control has caused the harm.

John Doe is injured when an elevator he has entered plunges several floors and stops abruptly.
Jane's Corporation built, and is responsible for maintaining, the elevator.

Doe sues Jane, and during the proceedings, Jane claims that Doe's complaint should be
dismissed because he has never proved, or for that matter even offered, a theory as to why the
elevator functioned incorrectly. Therefore, argues Jane, there is no evidence that they were at
fault.

The court holds that Doe does not have to prove anything beyond the fall itself. The elevator
evidently malfunctioned (it was not intended to fall nor is that a proper function of a correctly
functioning elevator). Jane was responsible for the elevator in every respect. So, Jane's
Corporation is responsible for the fall.

The thing speaks for itself: no further explanation is needed to establish the prima facie case.

6
A legal maxim which means ‘on the face of it’
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 RES IPSA LOQUITUR AND EVIDENCE LAW

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.

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 CASES RELATED TO RES IPSA LOQUITUR

1. M.C. MEHTA V. UNION OF INDIA 1987 SCR (1) 819, AIR 1987 9657

This case is most popularly known as the Oleum gas leak case. This is a PIL (Public Interest
Litigation) filed by M. C. Mehta regarding the establishment of enterprises involved in
hazardous works in thickly populated areas in the light of the Oleum gas leak. The Oleum gas
leak had occurred in the work premises of Shriram Mills. Oleum 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 staying 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 held 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 injuries caused. It
was further held that any company involved in hazardous activities will be held negligent prima
facie and it is up to them to lead the evidence and prove how they are not negligent failing
which they will be held liable

7
"M.C. Mehta And Anr vs Union Of India & Ors on 20 December, 1986". Indian Kanoon
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 2. Byrne v. Boadle 2 H. & C. 722, 159 Eng. Rep. 299 (Exch. 1863)8

In this case Boadle’s (defendant) shop was adjacent to the road on which Byrne (plaintiff) was
walking. Walking along the road he lost his consciousness and badly injured because a barrel
of flour appeared to have fallen, or was dropped from a window above from the defendant’s
shop. Neither Plaintiff nor any of the witnesses testified as to anything done by Boadle that
could have led to the barrel falling.

Byrne brought a suit against Boadle, for negligence. The trial court found no evidence of
Boadle’s negligence, and granted judgement in favour of Boadle. On appeal, Byrne argued that
the presumption is that Boadle’s servants were handling the barrel when it fell and injured him,
and if they were not, Boadle has the burden of proving this. The court allowed the case to
proceed because of the nature of the harm-causing event and defendant’s responsibility to
control the contents of his warehouse.

The accident itself is evidence of negligence. Court’s decision was that a plaintiff seeking to
rely on res ipsa loquitur must connect the defendant to the harm. Initially, courts interpreted
the control element narrowly, requiring the plaintiff to show that the defendant likely had
“exclusive control” over the harm-causing instrumentality. This element has been liberalized
and it is now enough for a plaintiff to get the issue to a jury on res ipsa loquitur if he can provide
evidence showing that the defendant probably was the responsible party even if the defendant
did not have exclusive control. Further, most jurisdictions no longer require the plaintiff to
prove that he did not contribute to his harm.

8
www.casebriefs.com
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 3. Chief Executive Officer CESCO v. Prabhati Sahoo & ors.

In this case there were two brothers: Laxmidhar Sahoo and Chandramani Sahoo – sons of Jhatu
Sahoo and Karunakar Sahoo. Once both the brothers had been to their betel vine to irrigate the
same. While the deceased Chandramani was coming from the field carrying the pump set on
his head, the pump set came in contact with a live conductor as a result of which it was
immediately charged at the spot as the open electric line was hanging at a very low height.
When deceased Chandramani was struggling after coming in contact with electric shock, his
brother Laxmidhar tried to save him. However, both the brothers succumbed being charged
with electric current at the spot. The defendants were negligent in maintaining the proper height
of the live electric wire. As such, the deceased came in contact with the high voltage electric
current and lost their lives. The deceased were doing agricultural and labour work. So, the
plaintiffs claimed compensation.

Defendant said that a three-phase low transmission line was supplied to the lift irrigation point
of one Gopinath Swain who is represented by his son’s defendants. The said line was
disconnected due to non-payment of electrical dues since 23rd March, 1997. Therefore, if the
death was due to electrocution then the same might have been possible due to the pilferage or
theft of electricity by the deceased by hooking process. He also took a stand that the money
suits were not maintainable as they were not negligent in any manner in compliance of the
statutory duties. Hence, the plaintiffs are not liable to get any compensation.

The principle of res ipsa loquitur is the rule of evidence whereby the negligence of the alleged
wrong doer may be inferred from the fact that the incident happened. The fact itself is sufficient
to reveal what has happened. The character of the incident and the circumstances attending it
can reasonably be believed that in absence of negligence the incident would not have occurred.
Therefore, this Court considering the materials on record comes to a conclusion that due to
rashness and negligence of the defendants, the incident took place and the finding of the trial
court is confirmed.

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 4. Achutrao Haribhau Khodwa and others v. State of Maharashtra and
Others9

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 plaintiff went in High Court for
compensation but High Court’s decision was that the defendant s are not liable. Then 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 patient’s 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.

9
https://advance.lexis.com/search/?pdmfid
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 5. Scott v. the London and St. Katherine Docks Company
The facts of this case were that plaintiff was an officer of Customs. He was instructed to go
from the East Quarry to Spirit Quarry by his surveyor. There were warehouses on the Spirit
Quarry. He went to the entrance of one of the warehouses to find Mr. Lilley, the Surveyor. He
was told that Mr. Lilley is in another Warehouse. He went to the first door to meet upon the
Quarry. He went into the Warehouse and met a labouring man about two yards within
warehouse. He enquired from the Labourer about Mr. Lilley, and he was informed that he could
find Mr. Lilley in the next doorway. In passing from one doorway to another, six bags of sugar
fell upon him, and he suffered injuries as the servants of the dock company were lowering the
bags of sugar. Except plaintiff, there was nobody else on the spot of the accident. There was
no warning signal and no fence or barrier. The majority of the Court came to the conclusion
that falling of bags of sugar on the plaintiff itself is not reasonable evidence of negligence and
directed the case for a new trial.

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 CONCLUSION
In Res Ipsa loquitur the plaintiff need not to show evidences.
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. 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 oleum 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.

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 BIBLOGRAPHY
This research project of Law of Torts has been done with the help of different sources. Those
sources are mentioned below

BOOKS: -

R. K. Bangia – Law of Torts, EDITION 2017 reprint 2019

Ratanlal and Dhirajlal – The Law of Torts, updated 26th edition, justice G. P. singh

INTERNET: -

http://www.legalserviceindia.com/articles/Res_Ipsa_Loquitur.htm

https://www.casebriefs.com/blog/law/torts/torts-study-buddy/examples-and
explanations/part-ii-the-concept-of-negligence/a-phrase-in-latin-res-ipsa-loquitur/

https://indiankanoon.org/search/?formInput=res+ipsa+loquitur

https://advance.lexis.com/search/?pdmfid=1523890&crid=a9e3dbf1-f553-4047-93e1-
90399a5a9053&pdsearchterms=res+ipsa+loquitur&pdicsfeatureid=1523894&pdstartin=hlct
%3A1%3A1&pdtypeofsearch=searchboxclick&pdsearchtype=SearchBox&pdqttype=or&pdp
sf=his%3A1%3A1&pdquerytemplateid=&ecomp=_7sf9kk&earg=pdpsf&prid=058f6518-
36ec-4f8a-88f2-e40958568175

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