Broken/Res ipsa loquitur

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'The thing speaks for itself'. To succeed in an action for negligence, the claimant must show on the balance of probabilities that the defendant's breach of a duty of care was causative of his (the claimant's) loss or injury. However, the claimant may in some cases effectively transfer the burden of proof to the defendant by showing that the loss or injury suffered is compatible only with the defendant's negligence. A claim of res ipsa loquitur will usually not succeed, or indeed be necessary, if there is any actual evidence pertaining to how the loss or injury was sustained.

Whether or not the defendant in a given negligence case has failed to conduct himself in accordance with the standard of 'a reasonable person' is a question of fact, and it falls to the claimant to prove this fact. However, where it is unlikely that a certain event could have taken place without the defendant's negligence (e.g. where a surgeon has left a scalpel in the patient's body), and it can therefore be said that 'the thing speaks for itself', the burden is on the defendant to show that the fact that caused the damage cannot be attributed to his negligence. Here, the plaintiff may claim 'res ipsa loquitur' as a way of shifting the evidential burden to the defendant. To do so requires that the following three criteria be satisfied: (i) the incident occurred in an inexplicable fashion; (ii) the incident would not have occurred in the ordinary course of events if not for defendant's negligence; (iii) the defendant had control of the object causing injury.

Although it is generally thought that a successful claim of this type reverses the burden of proof from the claimant to the defendant, it should be noted that a more sceptical view is that res ipsa loquitur is nothing more than a shorthand way of conceding that 'no one knows exactly what happened, but there is a prima facie case for finding negligence'.