Burden of proving the

Breach of duty
The burden of proof lies on the shoulder of the party making the claim,
which is the plaintiff.
Section 101 of the Evidence Act 1950 places the burden of proof on the
plaintiff.
The standard of proof is on a balance of probabilities;
This means that the plaintiff evidence must prove that it is more probable
than not, that the accident occurred due to lack of care on the part of the
defendant.
If the plaintiff fails to reach this standard, then his action will fail.
The plaintiff must also prove specific acts or omission of the defendant,
that are alleged to be negligent.
Res Ipsa Loquitor
Res ipsa loquitur is a legal term from the Latin meaning literally, "the
thing itself speaks" but is more often translated "the thing speaks for
itself".
It signifies that further details are unnecessary; the proof of the case
is self-evident.
The doctrine is applied to tort claims which, as a matter of law, do not
have to be explained beyond the point where liability is established.
It is most useful to plaintiffs in certain negligence cases.

It was first formulated in the case Byrne v. Boadle (1863), in England.
When the plaintiff raises the maxim res ipsa loquitor, he is asserting
that based on the evidence tendered, he has proven prima facie, that
the defendant is negligent.
The main purpose of the maxim is to avoid injustice to the plaintiff
as otherwise the plaintiff would be required to prove the details of
the cause of the accident.
ELEMENTS UNDER RES IPSA
LIQUITOR
3 elements must be satisfied;

Inference of Negligence
Exclusive Control by the Defendant
Freedom from Contributory Negligence
Inference of Negligence

The plaintiff's injury must be of a type that does not ordinarily occur
unless someone has been negligent.
allows res ipsa to be applied to a wide variety of situations
Example:
falling of elevators, the presence of a dead mouse in a bottle of soda,
or a streetcar careening through a restaurant.
Commercial air travel became so safe in the late twentieth century
that planes engaged in regularly scheduled commercial flights
generally do not crash unless someone has been negligent
This inference of negligence does not mean that all other possible
causes of the injurious event must be eliminated.
A plaintiff using res ipsa to enable her case to go to the jury must
prove that the defendant's negligence is the most probable cause of
her injuries.
Where the inference of negligence depends upon facts beyond the
common knowledge of jurors, court refer to EXPERT TESTIMONY.
It is necessary to furnish this information.
Such testimony is usually presented in cases of professional
negligence, such as MEDICAL MALPRACTICE. An expert witness can
testify directly in regard to the inferred fact itself, such as when the
expert testifies that the plaintiff's injury would not have occurred if
the doctor had not been negligent.
Exclusive Control by the Defendant
The plaintiff's injury or damage must have been caused by an instrumentality or
condition that was within the exclusive control of the defendant
Some courts interpret this requirement to mean that exclusive control or
management must have existed at the time of the injury.
Example:
In one case, a customer sat down in a chair in a store while waiting for a
salesperson. The chair collapsed and the customer was injured. The court denied
recovery to the customer in her negligence action against the store because it
found that the chair was not within the exclusive control of the store but rather was
under the exclusive control of the customer at the time of injury
This application of the rule has been regarded as inflexible by many courts, since
it severely restricts the type of case to which res ipsa can be applied.
The requirement of exclusive control by the defendant is not applied
in cases involving VICARIOUS LIABILITY or shared responsibility for
the same instrumentality or condition.
In one case, a person was injured when an elevator in which she was
riding fell very rapidly. She brought a negligence action against both the
owner of the building and the company that manufactured the elevator
and had the maintenance service contract for the building. The
requirement of exclusive control by a defendant of the instrumentality
causing injury does not mean that only a single entity has control.
Where two or more defendants are acting jointly, the doctrine of res
ipsa can be applied to establish their negligence.
In one case, while an anesthetized patient was undergoing an
operation for appendicitis, he suffered a traumatic injury to his
shoulder.
Res ipsa was applied against all of the doctors and hospital
employees connected with the operation, although not all of them
were negligent. The court based its decision on the special
responsibility for the plaintiff's safety undertaken by everyone
concerned.
Freedom from Contributory Negligence
The event in question must not have been attributable to any cause
for which the plaintiff is responsible
The plaintiff must not have done anything that significantly
contributed to the accident that caused the injury.
HOW AND WHEN IS THE MAXIM
APPLICABLE?
Case: Scott v London and St Katherine Docks Co [1865] 3 H &C 596
Held:
What is most important when want to use the doctrine of Res ipsa
Liquitor, is that the damage or injury that has occurred must give rise
to the presumption that the defendant has been negligent. If more
than one version of the accident is probable the maxim is
inapplicable, this requirement is usually further divided into three
requirements.



1. The thing that causes the damage must be under the control of
the
defendant or his servant.
The defendant must be in control of the thing that causes the
damage. The defendant need not have complete control over all the
circumstances leading to the plaintiff injury.
It is sufficient if he has a mere right to control, what more if he has
actual control over the events leading to the injury.
Case: Gee v Metropolitan Ry [1873] LR 8 QB
Held:
The plaintiff fell out of a train when the door that he was leaning
against suddenly openend just after the tarin had moved. The court
hel the defendant liable in negligence.


Case: Easson v LNE Ry Co [1944] KB 421
Held:
The plaintiff, a child aged four years old, fell off a train when the doors
suddenly open seven miles after the train had left its last stop. The
defendant was found not to have full control over the accident for the
application of res ipsa liquitor. It was unreasonable to expect the train
to be under the control of the defendant for the whole journey. The
negligence in the instant case might have been caused by either the
defendant or any of the passenger on the train.

In cases where one of two or more persons is in control and an
employer is the party sued for the negligence of one of his
employees, but the particular employee is not identifiable, res ipsa
liquitor still applies for purposes of establishing the employers
vicarious liability.


2. The damage is of a kind that would not ordinarily happen
if the defendant had taken adequate precaution.
All the facts of the case will be taken into account and the facts will be
judged through the ordinary experience of man.
Case: Byrne v Boadle [1863] 2 H & C 722

3. The cause of the accident is not
known
Once the cause of the accident is known and may be explained, the
thing ceases to speak for itself and the maxim becomes inapplicable,
as there is no longer a question of drawing an inference.
Case: Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392




EFFECT USING RES IPSA LIQUITOR


The effect of the maxim is that the plaintiff has successfully proven
that prima facie, the defendant has been negligent. The onus then
shift to the defendant to rebut the inference. He may do so by giving
evidence or explanation as to how the accident occurred and without
his negligence.
If the defendant fails to rebut the interference of negligence, this will
entitle, though not require, a finding for the plaintiff.