Res Ispa loquitor by Gaurangi@lexcliq

Res Ipsa Loquitur literally means Things speak for itself. Prima facie it appears to be a simple and easy maxim to understand and apply. However it is not as simple as it appears to be. There is a popular joke among students of law, “Res Ipsa Loquitur, sed quid in infernos dicetne?” (“The thing speaks for itself, but what is it saying?”).

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 upto him to prove his non-liability and that it was not his act which caused the plaintiff’s injury. The defendant leads the evidence.

The project is of much relevance today considering the globalization and the increasing cases of absolute liability where the maxim finds much application with cases as recent as M.C.Mehta v. Union of India [1] applying this maxim. In this project the researcher has attempted to elucidate upon the various situations when this maxim finds its applicability like in matters of gross negligence where a person is affected at large.


According to the Blacks Law Dictionary the maxim is defined as the doctrine providing that, in some circumstances, the mere fact of an accidents occurrence raises an inference of negligence so as to establish a prima facie (at first sight) case. It is a symbol for the rule that the fact of the occurrence of an injury taken with the surrounding circumstances may permit an inference or raise a presumption of negligence, or make out a plaintiff’s prima facie case and present a question of fact for defendant to meet wit an explanation. It is merely a short way of saying that the circumstances attendant on the accident are of such a nature to justify a jury in light of common sense and past experience in inferring that the accident was probably the result of the defendants negligence, in the absence of explanation or other evidence which the jury believes.

APPLICATION OF Res Ipsa Loquitur
Res Ipsa Loquitur is an inappropriate form of circumstantial evidence enabling the plaintiff in certain cases to establish the defendant’s likely negligence. Hence the doctrine properly applied does not entail any covert form of strict liability. It just implies that the court doesn’t know and cannot find out, what actually happened in the individual case. Instead, the finding of likely negligence is derived from knowledge of causes of the type or category of accidents involved.

To find the application of the maxim there is the Res Ipsa Loquitur test where it is determined whether the defendant has gone beyond preparation and has actually committed an attempt, based on whether the defendants act itself would have indicated to an observer what the defendant intended to do.

The application of the maxim means that a plaintiff prima facie establishes negligence where:
It is not possible for him to prove precisely what was the relevant act or omission which set in train the events leading to the accident; but on the evidence as it stands at the relevant time it is more likely than not that the effective cause of this accident was some act or omission of the defendant or of someone for whom the defendant is responsible, which act or omission of the defendant or of someone for whom the defendant is responsible, which act or omission constitutes a failure to take proper care for the plaintiff’s safety.

It has been said that in medical negligence cases the essential function of Res Ipsa Loquitur is not so much to prove the claimant’s case as to enable him, when he is not in possession of all the material facts, to be able to plead an allegation of negligence in an acceptable form and to force the defendant to respond to it at the peril of having a finding of negligence made against the defendant if the defendant does not make an adequate response. The cases on Res Ipsa Loquitur are no more than illustrations of the way in which the courts infer negligence from circumstantial evidence.[3]

The essential element is that the mere fact of the happening of the accident should tell its own story so as to establish a prima facie case against the defendant. There must be reasonable evidence of negligence of negligence, but when the thing is shown to be under the management of the defendant or his servants, and the accident is such as in 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 defendants, that the accident arose from want of care.[4] So, the elements are control An accident of a type which does not normally occur without the defendant’s fault.

Control is required because the absence of control by the defendant makes it less likely that the accident arose from his fault.

Case law

Achutrao Haribhau Khodwa and Others v. State of Maharashtra and Others[13]
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 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 patients 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.

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. In the United States it is mostly applied in cases of commercial airplane accidents and road and traffic accidents.

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[15] popularly known as the olium 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.

It is applied primarily in all prima facie cases, where at first instance the negligence on part of the defendant is evident and without which the injury would not have occurred. In such a case, it is presumed that the defendant is negligent and it is upto him to prove why he is not negligent.

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