Tort - The Doctrine Of Res Ipsa Loquitur

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Res Ipsa Loquitur - Introduction

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The phrase originated from a comment by Pollock CB in Byrne v. Boadle (1863).

It means “the thing speaks for itself”.

It is a form of circumstantial evidence which permits the occurrence of an incident to be used as evidence of the Def’s negligence; where it is used, it gives rise to a rebuttable presumption of negligence.

The two principle issues are:

i. When does the doctrine apply?
ii. What are the evidential effects?

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When does Res Ipsa Loquitur Apply

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The doctrine has generally been applied where a Pl can show an injury and the cause of it, but not the negligence – which is then inferred from the causal connection between instrument and injury. Examples: Byrne v. Boadle (1863): a barrel of flour fell from a window and struck the Pl; Collen v. Scaffolding Ltd. (1959) where the collapse of scaffolding injured a workman.

The control requirement is generally interpreted broadly, and has even been considered fulfilled where a Def formerly had control and there had been no interference with it in the interim (e.g. manufacturers of defective products).

The requirement that the injury would not usually happen if due care were taken by the Def involves the application of common sense. Adverse outcomes to medical procedures are problematic: in routine operations with no inherent risks, res ipsa loquitur may be applied, however an adverse outcome will not always satisfy the requirement because medical science is not so advanced that reasonable care will always lead to an improvement in a patient’s condition.

Hanrahan v. Merck, Sharpe & Dhome (1988) added two new criteria to the doctrine, which are used generally in shifting the burden of proof: (a) the Def must be in a superior position to provide proof, and (b) it must be unjust to require the Pl to prove the issue in question. After Hanrahan, it was unclear whether these were addition or alternative to the old test.

Rothwell v. MIBI (2003) made it clear that they are additional. Despite this clarification, the case is weak law. The Pl skidded on spilt fuel, the SC, applying Hanrahan, rejected the Pl’s claim on the basis that the source of the oil slick was not within the exclusive knowledge of the Def; nor did the Def have the capacity to prove what happened.

Quill questions whether the doctrine was relevant at all here – the event could have been explained by negligent or innocent behaviour, thus criterion (c) in the Scott test could not be passed (it couldn’t be shown whether the event would not occur if due care was taken).

Quill also argues that Hanrahan’s conflation of two evidential rules (viz., res ipsa loquitur and the shift of burden of proof in circumstances of evidential unfairness to the Pl) is unfair, as Pls who fail to fulfil certain requirements of either rule can now avail of neither in proving their case.

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Scott v. London & St Katherine Docks (1865)

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The doctrine applies when

(a) the instrument causing the injury was known,

(b) the Def was responsible for the control of the instrument, and

(c) the injury would not usually happen unless there was negligence in the management of the instrument.

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Hanrahan v. Merck, Sharpe & Dhome (1988)

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The doctrine applies when damaged is caused to the Pl in circumstances in which such damage would not usually be caused without negligence on the part of the Def. (Similar to the Scott test, but minus knowledge of the instrument on the part of the Def).

The SC added two new criteria to the doctrine, which are used generally in shifting the burden of proof: (a) the Def must be in a superior position to provide proof, and (b) it must be unjust to require the Pl to prove the issue in question. After Hanrahan, it was unclear whether these were addition or alternative to the old test.

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Lindsay v. Mid-Western Health Board (1993)

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A child had her appendix removed and never regained consciousness; there was uncertainty as to what caused this to happen, but the doctrine was applied anyway.

This decision casts doubt on the need to know the instrument of the injury, and could be a significant extension of the law.

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Rothwell v. MIBI (2003)

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The SC made it clear that the two further criteria enunciated in Hanrahan (1988) are additional.

Despite this clarification, the case is weak law. The Pl skidded on spilt fuel, causing a collision with another car; he claimed against the MIBI for personal injuries caused by an unidenfiable driver.

The SC, applying Hanrahan, rejected the Pl’s claim on the basis that the source of the oil slick was not within the exclusive knowledge of the Def; nor did the Def have the capacity to prove what happened.

NB: Quill questions whether the doctrine was relevant at all here – the event could have been explained by negligent or innocent behaviour, thus criterion (c) in the Scott test could not be passed (it couldn’t be shown whether the event would not occur if due care was taken).

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Byrne v. Boadle (1863)

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A barrel of flour fell from a window and struck the Pl - doctrine applied.

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Collen v. Scaffolding Ltd. (1959)

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The collapse of scaffolding injured a workman - doctrine applied.

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What are the evidential effects? Weak Version

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If Pl provides evidence of causal negligence; inference possible. Judge can decide as he wishes. BoP on Pl. If, however, the Pl provides overwhelming evidence, which make an inference inevitable, contrary evidence from Def is necessary if he is to disprove claim. However, BoP still on Pl.

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What are the evidential effects?
Medium Version

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Pl establishes prima facie case using doctrine – Def has to answer – but BoP sill on Pl. (How?)

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What are the evidential effects? Strong Version

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Pl introduces evidence using doctrine – BoP shifts to Def.

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Evidential effects - summary

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The US and Canada now favour Weak Version;

England is traditionally in favour of the Strong Version but is veering toward the Medium Version;

Ireland is – especially after Rothwell – in favour of the Strong Version.

Quill argues for the case-by-case fairness of the Weak Version (establishing whether an inference is justified on the facts).

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O'Reilly v Lavelle [1990] 2 IR 372

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Where cattle trespass on the roadway a plaintiff is
entitled to rely on the doctrine. Johnson J stated:

Cattle properly managed should not wander on the road and therefore the burden of proof in this case shifts to the defendant to show that he took reasonable care of his animals. I believe that there is no matter more appropriate for the application of the doctrine of res ipsa loquitur than cattle wandering on the highway.

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O'Brien v Derwin & Another [2009]1EHC 2

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The plaintiff was driving one night when loose horses on the road struck his car injuring him badly. The horses were unclaimed but it was suspected that they came from a nearby field owned by the defendants. The plaintiff was required to prove that one or other of the defendants, or both of them, had responsibility for these horses, in that they kept them under their control on their lands, and that they were negligent in allowing them to stray on the public highway. Having examined the evidence the court was satisfied that
they came from the defendants' field and that the fencing surrounding the field was inadequate to contain the horses. Based on the type of horse that was involved in the accident, the fact that the defendants owned the nearby land, the fact that the fencing was in a state of disrepair
and the fact the defendants held horses there, the Court was satisfied on the balance of
probabilities that the horses involved in the accident were those of the defendants who had negligently allowed them to escape onto the highway thereby causing damage to the plaintiff.