Part of Duhaime's Tort & Personal Injury Law Centre.
Latin for the thing speaks for itself.
Generally, in tort, the mere fact of an accident is not proof of negligence. But in some cases, negligence is presumed on the defendant since the object causing injury was in or under his or her control. This is the res ipsa loquitur doctrine.
Res ipsa loquitur is a rebuttable presumption rebutted by showing that the event was an inevitable accident and had nothing to do with the defendant’s responsibility of control or supervision.
Examples of res ipsa loquitur, not all of which can be assumed to apply today or in all jurisdictions, but which illustrate the doctrine:
- getting hit by a rock which flies off a passing dump truck;
- a ship in motion collides with an anchored ship;
- damages occasioned by the collision of two trains of a same railway;
- hit or ijured in an attack by a known-to-be vicious domestic dog;
- hit from cargo falling from a crane; or
- hit by bricks falling from a private bridge.
These events imputes negligence (res ipsa loquitur) and can only be defeated if the defendant can show that the event was a total and inevitable accident.
Judicial consideration of the doctrine has, and continues to this day to be, varied.
In the US Suprme Court, 1912, San Juan Light & Transit Co. v. Requena (224 US 89):
"When a thing which causes injury, without fault of the injured person, is shown to be under the exclusive control of the defendant, and the injury is such as, in the ordinary course of things, does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant's want of care."
In 1947, Jesionowski v. Boston & MRR (329 US 452) purported to:
"... cut through the mass of verbiage built up around the doctrine of res ipsa loquitur, that (it) means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require; that they make a case to be decided by the jury, not that they forestall the verdict."
In 1998, Canada's Supreme Court (Justice Major), in Fontaine v ICBC (oddly indexed as "Fontaine v BC"), said that we cannot even continue to call it a "doctrine"; that it is "expired" and has only "limited use".
But other Canadian courts have been more receptive.
In a 1997 Alberta case which does not appear to have been published on the Internet (Naicken v City of Edmonton), Justice Langston of the Court of QB adopted these words at paras 28-32 (edited extract):
"The doctrine of res ipsa loquitur has its foundation in the concept that the defendant should not be able to thwart a legitimate claim by the plaintiff by means of his silence or his unilateral control over those matters which would otherwise provide evidence. Today the doctrine is generally accepted as having three elements....
"(1) when the thing that inflicted the damage was under the sole management and control of the defendant, or someone for whom he is responsible or whom he has a right to control;
"(2) the occurrence is such that it would not have happened without negligence. If these two conditions are satisfied it follows, on a balance of probability, that the defendant, or the person for whom he is responsible, must have been negligent. There is, however, a further negative condition;
"(3) there must be no evidence as to why or how the occurrence took place. If there is, then appeal to res ipsa loquitur is inappropriate, for the question of the defendant's negligence must be determined on that evidence.
"The elements (1) and (2) harken back to the historical roots of this doctrine.
"The remaining element relating to the drawing of an inference as to negligence, is in essence a common sense application of circumstantial evidence."
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