TORT 030 Proof of Negligence and Res Ipsa Loquitur — Law of Torts Notes for Judiciary

Proof of Negligence: The Burden, and Res Ipsa Loquitur

The burden of proving negligence lies on the plaintiff, on all four ingredients and on the balance of probabilities. He must show not merely that an accident happened but that it happened through a failure to take reasonable care, and the mere fact of injury proves nothing at all. That burden is often impossible to discharge where the facts are peculiarly within the defendant's knowledge, and res ipsa loquitur, the thing speaks for itself, is the answer the law has developed. Where the thing causing the harm was under the defendant's control, the accident is one that does not ordinarily happen without negligence, and there is no evidence of the actual cause, the facts themselves raise an inference of negligence.

The ordinary burden, the three conditions of res ipsa, and what the maxim does and does not do

1. The Ordinary Burden

It lies on the plaintiff, on duty, breach, causation and damage alike.
The standard is the balance of probabilities, the ordinary civil standard.
The mere happening of an accident is not evidence of negligence. Accidents happen without anybody being at fault, and the plaintiff must go further.
He must identify the act or omission complained of, and show that it fell below the standard of the reasonable man.
Where the evidence is evenly balanced he fails, because the burden is his.
Pleading matters. Negligence must be pleaded with particulars, and a plaintiff who pleads specific acts of negligence is ordinarily confined to them.

2. Res Ipsa Loquitur: The Three Conditions

1. The thing causing the harm was under the exclusive management or control of the defendant or of those for whom he is responsible.

2. The accident is such as does not in the ordinary course of things happen if those who have the management use proper care. This is the heart of the maxim.

3. There is no evidence as to the actual cause of the accident. Where the facts are fully known, the maxim has no application: the court decides on the evidence whether there was negligence, and does not need an inference.

4. All three must be satisfied, and the burden of establishing them is on the plaintiff.

📖 Byrne v. Boadle (1863) 2 H & C 722

Facts The plaintiff was walking past the defendant's flour warehouse when a barrel of flour fell from an upper window and struck him. He could not say how or why it fell.

Held The defendant was liable. The plaintiff was not bound to prove how the barrel came to fall.

Ratio Pollock CB said that a barrel could not roll out of a warehouse without negligence, and that to say the plaintiff must call witnesses to prove it was preposterous. The fact of the accident itself is evidence of negligence where the thing is under the defendant's management and the accident is one which does not ordinarily happen if proper care is used. This is the origin of the maxim.

3. The Leading Indian Case

📖 Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750

Facts A clock tower in the heart of Chandni Chowk, belonging to and under the exclusive control of the Corporation, collapsed and killed a number of people. The structure was about eighty years old, and the normal life of the kind of mortar used was between forty and forty five years. The mortar had deteriorated, and the top portion had not been periodically inspected.

Held The Corporation was liable.

Ratio The structure was under the exclusive control and management of the Corporation, and a building of that kind does not ordinarily collapse if reasonable care is taken by those responsible for its maintenance. The doctrine of res ipsa loquitur applied, and the burden lay on the Corporation to show that the collapse was not due to any want of care on its part. It failed to discharge that burden: a periodical and careful examination would have revealed the condition of the mortar.

4. What the Maxim Does and Does Not Do

	The position
It raises an inference of negligence	The facts proved permit, and in a strong case invite, the conclusion that the defendant was negligent
It shifts the evidential burden	The defendant must now produce an explanation, or evidence of the care he took, or he will lose
It does not reverse the legal burden	The legal burden of proving negligence remains on the plaintiff throughout
It is a rule of evidence, not of liability	It does not create a duty, and it does not make liability strict
It is not a presumption of law	The court is not bound to draw the inference; it is permitted to
The defendant answers it	By showing how the accident happened without negligence on his part, or by showing that he took reasonable care

A plausible explanation consistent with the absence of negligence displaces the inference, and the plaintiff is then back where he started.
The defendant need not prove how the accident actually happened, though doing so is the most effective answer.
The maxim applies with particular force where the facts are within the defendant's exclusive knowledge, which is the practical reason for its existence.

5. Where the Maxim Applies

The situation	Why the facts speak for themselves
A barrel falling from a warehouse	Barrels do not fall out of well managed warehouses: Byrne v. Boadle
A building or structure collapsing	Buildings do not collapse if properly maintained: Municipal Corporation of Delhi v. Subhagwanti
A vehicle mounting the pavement	Vehicles do not ordinarily leave the road if properly driven
A surgical instrument left inside a patient	This does not happen where reasonable care is taken in the operating theatre
Two vehicles of the same defendant colliding	One or both must have been driven carelessly
Food containing a foreign body in a sealed container	The manufacturer had exclusive control of the process

6. Where It Does Not Apply

⚠ Three situations in which res ipsa gives no help

The maxim does not apply where the facts are fully known. Once the evidence shows how the accident happened, the court decides on that evidence whether there was negligence, and there is nothing for an inference to do. It does not apply where the thing was not under the defendant's exclusive control, which is why it usually fails where several independent parties had access to the thing or the premises. And it does not apply where the accident is one that does ordinarily happen without negligence: a patient suffering a known complication of a properly performed operation, or a tyre bursting, or a person slipping on a floor that may have been made wet a moment earlier by another customer. The plaintiff who invokes the maxim must therefore establish the three conditions, and they are not lightly assumed.

7. Causation and Damage Still Have to Be Proved

Res ipsa loquitur goes to breach only. It says nothing about causation, and nothing about damage.
Causation must still be established, by the but for test or one of its supplements, and Barnett v. Chelsea and Kensington Hospital shows that a clear breach founds no liability where it made no difference.
Remoteness must still be satisfied, by the Wagon Mound test of reasonable foreseeability of the kind of damage.
And damage is an essential element. Negligence is never actionable per se, so a plaintiff who proves an egregious breach and no damage recovers nothing.

8. The Position Stated Shortly

1. The burden of proving negligence lies on the plaintiff, on all four ingredients and on the balance of probabilities.

2. The mere happening of an accident is not evidence of negligence.

3. Res ipsa loquitur applies where the thing causing the harm was under the defendant's exclusive control, the accident is one that does not ordinarily happen without negligence, and there is no evidence of the actual cause.

4. Byrne v. Boadle is the origin: a barrel of flour falling from a warehouse window.

5. Municipal Corporation of Delhi v. Subhagwanti applied it to the collapse of an eighty year old clock tower under the Corporation's exclusive control.

6. The maxim raises an inference of negligence and shifts the evidential burden to the defendant.

7. It does not reverse the legal burden, which remains on the plaintiff throughout.

8. The defendant answers it by showing how the accident happened without negligence, or that he took reasonable care.

9. It has no application where the facts are fully known, where control was not exclusive, or where the accident is one that does happen without negligence.

10. It goes to breach only: causation, remoteness and damage must still be proved in the ordinary way.