AUTHOR: NISHTHA MAHAJAN, UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERSITY, CHANDIGARH
RES IPSA LOQUITUR
Res Ipsa Loquitur is a Latin phrase whose precise meaning is “the thing speaks for itself”. It is a doctrine in Anglo-American common law and Roman-Dutch law that states that in any tort or civil lawsuit, the court can elucidate negligence from the very nature of injury without any direct evidence against the defendant.
As a well-established rule, the plaintiff needs to prove that the defendant was negligent. The burden of proof is on the plaintiff to exhibit the fact that the defendant was negligent. Once this obligation is discharged, the defendant has to impart evidence that the incident resulted from an inevitable accident or contributory negligence on the plaintiff’s forgo. Thus if the plaintiff is impuissant in giving proof of negligence, the defendant can’t be made liable.
In explicit cases a plaintiff need not prove negligence, a legal thesis is applied wherein facts and circumstances of the case permit the court to interpret that negligence has occurred. This is theory is of res ipsa loquitur.
EVIDENCE LAW AND RES IPSA LOQUITUR :
There are two types of evidence on whose basis one can be held liable for negligence.
Direct evidence subsidizes the truth or crucial facts of an issue, i.e., without an intervening inference. Circumstantial evidence, by contrast, refers to evidence that relies on interference from the facts or nature of the case.
Thus, the maxim ‘res ipsa loquitur’ comes in a role where ‘the thing speaks for itself’ i.e. from circumstantial evidence the negligence is manifested.
Accidents happen all time but mere proof that an accident has occurred, the cause of which is not known, is not evidence of negligence. To demonstrate negligence either the plaintiff has the choice of direct evidence and if it does not exist he can recourse to circumstantial evidence.
Circumstantial evidence consists of any collateral fact from which the main fact can be surmised or from facts of the case the jury can presume by applying knowledge and experience that there is an occurrence of negligence.
In cases where accidents themselves reveal an unambiguous voice, that it is negligence the maxim of res ipsa loquitur may be said to appeal.
ORIGIN OF RES IPSA LOQUITUR:
The doctrine of res ipsa loquitur was first applied in the famous English case Byrne v Boadle [2 Hurl. & Colt. 722, 159 Eng. Rep. 299, 1863]. The facts of the cases were, that a man was walking on the sidewalk outside a flour warehouse and abruptly a barrel of flour fell upon him. His head got hit badly. Two witnesses saw the accident but none of them knew how the barrel fell from the window.
Thus it was held that in such cases no direct evidence is required as to circumstances clearly showing the breach of duty of the defendant towards the plaintiff. It was presumed that barrels do not usually fall out from windows unless there is a breach of duty of care.
Baron Pollock said that it would be wrong to lay down that no presumption of negligence can arise from facts of an accident. Firstly the person walking could not ascertain that a barrel would fall from the warehouse and secondly he mentioned that the servants were in control of the master i.e. defendant who is responsible for his servant’s act. Thus the plaintiff is not bound to establish that it could not happen without negligence but if there are facts inconsistent with negligence it is for the defendant to prove them.
ELEMENTS OF RES IPSA LOQUITUR :
There are three must-haves of this maxim for the plaintiff to fulfil before the jury infers the defendant’s negligence :
The event doesn’t ordinarily occur unless someone has acted negligently.
The evidence rules out the prospect that the actions and contributions of the plaintiff or third party caused an injury.
The defendant was in exclusive control of the state of affairs.
Thus if these are fulfilled the burden of proof shifts towards the defendant.
The applicability of elements is as follows :
COLLAPSE OF BUILT STRUCTURE:
In Municipal Corporation Of Delhi v Subhagwanti the Clock Tower in Chandni Chowk, Delhi collapsed causing the death of several persons. The Clock belonged to the Municipal Corporation Of Delhi, exclusively under its control. The building was about 80 years old but the normal life of the structure of the top storey building is about 45 years.
Thus the Supreme court held that it was not due to any natural calamity that the building collapsed stating it is no inevitable accident. The Clock Tower tells its own story in raising an inference of negligence that there is a breach of duty and this could not occur if the defendant party hadn’t been negligent. The defendants were made liable as they had no proof of the absence of negligence.
FOREIGN MATTER LEFT INSIDE AFTER SURGERY:
In A.H. Khodwa v State Of Maharashtra, the patient had gone under sterilization operation after childbirth. A mop was left inside the abdomen of the patient which led to disease. The patient died after a few days. It was held that duty of care was not taken while performing the surgery, nor did the plaintiff’s actions caused the death and the State running the hospital was in control. Hence making the State liable.
REBUTTAL OF RES IPSA LOQUITUR:
As the rule of res ipsa loquitur shifts, the burden of proof on the defendant i.e. defendant disapproves. If the defendant can prove that :
That with reasonable care also the injury could not be prevented.
That it was the plaintiff’s negligence contributing to injury.
That he did not owe a duty of care under law towards the plaintiff.
Then he can escape liability.
In the case of Nagamani v Corporation Of Madras, an iron pot on a pavement belonging to Madras Corporation fell for an unknown reason. This caused head injury to the person and thereby death. Res ipsa loquitur was applied but the Corporation rebutted that the steel column was erected only 30 years ago whereas the normal life is 50 years. In addition, the post was securely fixed and occasional inspection is held, the last one being one month ago which showed no signs of such collapsing. Thus even after a reasonable care accident took place, the defendant was not held liable.
Earlier in torts only compensation was provided for physical injuries. Nervous shock is a psychiatric trauma where the shock is to nerve and brain structures of the body. In English Law, a nervous shock is an injury imposed upon a person by intentional or negligent means. It is not an injury caused by a stick, bullet or sword but merely through what he has seen or heard. It is psychiatric vandalization for which compensation can be claimed even without physical harm being caused. It causes a psychiatric illness that may constitute morbid depression, post-traumatic stress, personality disorder, etc. due to breach of duty or negligence. Even if a person himself has a nervous breakdown due to threats to oneself he can suffer from nervous shock. This is due to a reasonable fear of personal injury.
ORIGIN OF NERVOUS SHOCK :
In 1888, the Judicial Committee of the Privy Council in Victorian Railway Commissioner v Coultas did not consider injury caused by shock without any direct contact. An action could not be sustained unless there was a physical impact, they said. Not after long this decision was reversed by State, they found injury caused by nervous shock is recognized without any physical injury being caused.
In 1897, in Wilkinson v Downton, the plaintiff got seriously ill on being told falsely a bad practical joke, by the defendant that her husband had broken both legs in an accident. Thus the defendant was held liable when the plaintiff suffered nervous shock.
Thus now well-recognized action can take place for shock sustained through the medium of eye or ear without any direct contact.
ESSENTIALS OF NERVOUS SHOCK :
There should be a recognized mental illness caused due to nervous shock after the happening of the incident.
Physical injury is not necessary.
Reports should be examined by a medical expert or there should be an expert witness.
The claimant must have a sufficiently proximate relationship with the victim i.e. more the closer the relationship with the victim more the psychiatric harm.
It should be reasonably foreseeable that psychiatric harm can be caused to the claimant due defendant’s wrongful act.
His proximity to the accident was sufficiently close in time and space.
TYPES OF VICTIMS :
Based on the reasonability test victims are divided into two categories :
PRIMARY VICTIM: The injured plaintiff who was involved or who instantly is the participant is known as the primary victim. These are those who are directly engaged and are within range foreseeable of injury. These involve rescuers, involuntary participation and people who get shocked for the fear of their injury.
SECONDARY VICTIM: The one who suffers psychiatric injury even though not directly related to the accident. The law has a control mechanism to limit the potential claimants.
Thus the defendant is only liable for a nervous shock when it leads to some psychiatric damage.
CASE LAWS :
In Dulieu v White and Sons, the defendant’s servant negligently drove a horse van into a public house. A pregnant woman was standing behind the bar although not physically injured suffered a nervous shock and as a result, she got seriously ill and gave birth to a premature child. The defendants were held liable. An action for nervous shock was recognized but a very great limitation was held that the shock must be such as “arising from a reasonable fear of immediate personal injury to oneself”. Thus a person may suffer nervous shock even though he is not within the area of physical injury and there seems no justification for debarring him from bringing an action.
In Bourhill v Young, the plaintiff, a fishwife who was getting out of a tram car heard of an accident but could not see as she was 50 ft away from the scene. In the accident, a negligent motorcyclist was killed. After the body of the motorcyclist was removed the fishwife happened to go to the scene of the accident and saw blood on the road. As a result, she suffered nervous shock and gave birth to a stillborn child. Thus it was held that the deceased could not expect to foresee any injury to the plaintiff and he did not owe any duty of care to her, his representatives could not be made liable.
RES IPSA LOQUITUR
Res ipsa loquitur is a form of circumstantial evidence empowering the plaintiff in certain cases to determine the defendant’s likely negligence. It just implies that the court doesn’t know and cannot find out what actually happened in the case. Instead, the hunting of likely negligence is derived from knowledge of causes of the type or category of accidents involved. The essential element is that the mere fact of the accident should tell its history as to establish a prima facie case against the defendant. It finds its materiality in a variety of situations but most importantly in medical negligence and road/aeroplane accidents.
The law relating to nervous shock has a long history of acknowledgement. The nervous shock itself is not enough to make it an actionable tort, some injuries or illnesses must take place as a result of emotional disturbance, fear or sorrow. To assert compensation, the duty of care should exist, a natural link between the breach and shock, shock where must not be a remote consequence. It is difficult to establish who should be allowed compensation but the distinction between primary and secondary victims has made it clearer. In India, though there is no such legislation regarding nervous shock, cases are decided based on the reasonability of a prudent man.