TORT 127 Negligence and Res Ipsa Loquitur — Law of Torts Notes for Judiciary

Negligence and Res Ipsa Loquitur: A Cause of Action, and a Rule of Evidence Within It

Res ipsa loquitur is not a separate tort, not a separate kind of liability, and not a doctrine of strict liability. It is a rule about proof, available inside an ordinary action in negligence, which permits a court to infer carelessness from the occurrence itself where the plaintiff cannot show what went wrong. It exists because the material facts in many accidents lie inside the defendant's premises or inside his organisation, and a rule requiring the plaintiff to specify the act of carelessness would leave him remediless in exactly those cases where his ignorance is the defendant's doing.

1. The Comparison

	Negligence	Res ipsa loquitur
What it is	A cause of action	A rule of evidence operating within that cause of action
What it requires	Duty, breach, causation, damage	Control, an accident of a kind that bespeaks carelessness, and an absence of explanation
The specific act complained of	Must be identified and particularised	Need not be identified, and ordinarily cannot be
Effect on the burden	The burden of proving breach is on the plaintiff	An evidential burden passes to the defendant to explain
The legal burden	On the plaintiff	Remains on the plaintiff throughout
Pleading	Particulars of negligence must be given	Should be pleaded, and is pleaded in the alternative to specific acts
Its effect if made out	Liability, if the other ingredients are satisfied	An inference of negligence which the defendant may displace

2. The Three Conditions

The condition	What it means
1. The thing causing the damage was under the defendant's control	Exclusive management or control at the material time. Where control was shared or the object had passed out of his hands, the inference does not arise
2. The accident is of a kind that does not ordinarily happen if proper care is used	The occurrence itself speaks of carelessness: barrels do not fall from warehouse windows, swabs are not left in abdomens, and trains on the same line do not collide, if due care is taken
3. There is no evidence of the actual cause	If the facts are fully known, the maxim has no work to do, and the court decides on the evidence whether there was negligence

📖 Scott v. London and St. Katherine Docks Co., (1865) 3 H and C 596

Facts The plaintiff, a customs officer, was passing in front of a warehouse door when six bags of sugar fell upon him from a crane above. He could not say what had gone wrong or who had been operating the hoist.

Held A new trial was ordered, the case being one in which negligence might properly be inferred.

Ratio Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. The statement of Erle C.J. is the classical formulation of the maxim.

Byrne v. Boadle, (1863) 2 H and C 722 is the earlier and more famous illustration: a barrel of flour rolled out of a first floor window of the defendant's warehouse and fell on a passer by. The court held that a barrel could not roll out of a warehouse without some negligence, and that the plaintiff was not bound to show what it was.

3. What the Maxim Does Not Do

It does not shift the legal burden of proof. The burden of establishing negligence remains on the plaintiff throughout. What passes to the defendant is an evidential burden, and if he offers nothing the court may, but need not, draw the inference.
It does not create strict liability. A defendant who offers a reasonable explanation consistent with the exercise of due care displaces the inference and wins, and he need not prove what in fact happened.
It does not apply where the cause is known. Once the evidence discloses how the accident occurred, the court decides on that evidence and the maxim is superfluous.
It is not a presumption of law, and the expression "presumption" in the older cases should be read as meaning a permissible inference of fact.
It does not dispense with duty, causation or damage, all of which must still be established in the ordinary way.

4. The Indian Authorities

📖 Shyam Sunder v. State of Rajasthan, (1974) 1 SCC 690

Facts A truck belonging to the State, engaged in famine relief work, caught fire shortly after starting. An employee travelling in it jumped out to save himself and struck his head against a stone, and died. The cause of the fire was not established, though there was material suggesting a defect in the engine.

Held The State was liable. The plea of sovereign immunity failed and negligence was inferred.

Ratio The maxim applies where the cause of the accident is unknown and the accident is such as in the ordinary course of things does not happen without negligence, the thing being under the defendant's control. It is not a rule of law but a rule of evidence, an aid in the assessment of evidence, permitting the court to draw an inference which it is not bound to draw. It does not apply where the cause is known.

Pushpabai Purshottam Udeshi v. M/s. Ranjit Ginning and Pressing Co., (1977) 2 SCC 745 applies it in a motor accident: a car leaving the road and striking a tree in clear conditions calls for an explanation, and where none is offered negligence is inferred.
Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634 applies it in a hospital: a mop left in the peritoneal cavity after a sterilisation operation, followed by peritonitis and death, is an occurrence which speaks for itself.
Syad Akbar v. State of Karnataka, (1980) 1 SCC 30 confines its use in criminal trials, where the burden never shifts and an inference must be the only one reasonably possible: TORT 126.

5. Where It Is Most Often Invoked

Objects falling from buildings, cranes and vehicles.
Vehicles leaving the carriageway, mounting a footpath, or colliding on a clear road in daylight.
Surgical and hospital cases: a foreign object left in the body, an operation on the wrong site, a burn from equipment, an injury to an anaesthetised patient: TORT 042.
Escapes of electricity, gas and water, though there the plaintiff will usually prefer strict or absolute liability, which requires no inference at all: TORT 115.
Collapses of structures, lifts, scaffolding and machinery.
Custodial injuries, where the facts are peculiarly within the knowledge of the authorities and the victim is in no position to prove them: TORT 107.

6. How It Is Pleaded and Met

The plaintiff pleads the specific acts of negligence he can identify, and pleads the maxim in the alternative. Pleading only the maxim is risky, because if the evidence discloses the cause the inference is unavailable and there is nothing else on the record.
Pleading specific negligence does not by itself exclude the maxim, though a plaintiff who undertakes to prove a specific act and fails may find the court unwilling to fall back on an inference he has himself displaced.
The defendant meets it in one of three ways: by showing that the thing was not under his control; by showing that accidents of that kind do happen without carelessness; or by offering a positive explanation consistent with due care.
The explanation need not be proved to be the true one. It is enough that it is reasonable and consistent with the absence of negligence, since the legal burden is on the plaintiff.
A defendant who offers no explanation at all is in the worst position, because the court is then entitled to infer that none exists.

⚠ Why the maxim is better understood as an answer to an evidentiary asymmetry

The Latin tag encourages the idea that certain accidents have a voice of their own, and much of the difficulty students have with the maxim comes from taking that metaphor seriously and then asking how strongly the thing speaks and what the defendant must do to contradict it. The underlying idea is more practical. In an ordinary accident both parties can see what happened: the collision took place in the street and there were witnesses. In a class of cases the evidence is entirely on one side, because the machinery, the operating theatre, the warehouse or the lock up belongs to the defendant and the plaintiff was unconscious, outside, or dead. A rule requiring him to particularise the carelessness would not be a neutral rule of proof; it would be a rule that the defendant wins whenever he is the only person who knows what happened. The maxim corrects that, and it does so in the mildest way available, by allowing rather than requiring an inference and by leaving the legal burden where it was. Understood in that way, the questions it raises answer themselves: it does not apply when the facts are known, because there is then no asymmetry to correct; it yields to a reasonable explanation, because the explanation removes the asymmetry; and it is strongest against a defendant who offers nothing, because his silence is the asymmetry in its purest form.

7. The Position Stated Shortly

1. Res ipsa loquitur is a rule of evidence within the tort of negligence, and not a separate tort or a form of strict liability.

2. The three conditions are control by the defendant, an accident of a kind that does not ordinarily happen without carelessness, and an absence of evidence of the actual cause.

3. Scott v. London and St. Katherine Docks contains the classical formulation, and Byrne v. Boadle the earliest illustration.

4. The legal burden of proof remains on the plaintiff; only an evidential burden passes to the defendant.

5. A defendant who offers a reasonable explanation consistent with due care displaces the inference, and need not prove it is the true one.

6. It does not apply where the cause of the accident is known, since the court then decides on the evidence.

7. Shyam Sunder v. State of Rajasthan holds it to be a rule of evidence and not of law, and an aid which the court is not bound to accept.

8. Achutrao Haribhau Khodwa applies it to a mop left in the abdomen, and Pushpabai to a car leaving the road.

9. Syad Akbar confines its use in criminal trials, where the burden never shifts.

10. The plaintiff pleads specific negligence and the maxim in the alternative, since a plaint resting on the maxim alone fails once the cause emerges.