‘Res Ipsa Loquitur’ – The Fact Speaks for Itself

INTRODUCTION

The Latin phrase ‘Res Ipsa Loquitur’ means ‘the fact speaks for itself”. It is a maxim often invoked by a plaintiff in negligence cases where it is almost impossible for the plaintiff to prove the negligence on the part of the defendant for the plaintiff has no precise and accurate knowledge of the acts or omissions by the defendant. Examples of such circumstances are falling of bricks from the scaffold which caused injuries to the road users, collapsed house which led to the death of others, surgical tool left in the patient’s body during the surgery etc.

Once a plaintiff invokes the maxim of ‘Res Ipsa Loquitur’, it gives rise to a presumption that the defendant was negligent and had caused the plaintiff to suffer loss and damages. The evidential burden of proof will then be shifted to the defendant to disprove the alleged negligence which had caused the plaintiff’s loss and damages.

The maxim stemmed from the classic English case of?Scott v London and St. Katherine Docks Co?[1861-1873] All ER Rep. 248 (“St. Katherine Docks”). In this case, a custom officer who was in charge of superintending the weighing of goods, was attending to his duty at the defendant’s warehouse. While passing through the warehouse from one doorway to another, he was suddenly and violently hit to the ground by some bags of sugar that fell on him from an upper window of the defendant’s warehouse. The plaintiff suffered serious and permanent injuries as a result. It was in this case that the three-prong test of the maxim of?res ipsa loquitur was set out. In order to invoke the maxim, a plaintiff has to satisfy that: –

(1) The inflicted damage was under the management and control of the defendant or of someone for whom he is responsible or whom he has a right of control;

(2) The occurrence is such that it would not have happened without negligence; and

(3) There must be no evidence as to how or why the occurrence took place.

Once a plaintiff fulfils the above three-prong test, the evidential burden of proof then shifts to the defendant to show that the incident in question occurred without negligence.

The application of?res ipsa loquitur?is explained by our Federal Court in?MA CLYDE v WONG AH MEI & ANOR?[1970] 2 MLJ 183: –

“… the principal requirement for the maxim to apply is that the?mere fact of the accident having happened should tell its own story and raise the inference of negligence so as to establish a prima facie case against the defendant. The story must be clear and unambiguous; if it may tell one of half a dozen stories the maxim is inapplicable.?In other words, where it applies, the maxim entitles the plaintiff to rely as evidence of negligence upon the mere happening of the accident. He need not allege or prove any specific act or omission of the defendant if the result, which he does prove, of some unspecified act or omission makes it more probable than not that the damage was caused by the negligence of the defendant.”

Over the years, our Malaysian courts have allowed claims based on the maxim of ‘Res Ipsa Loquitur’.

i)?Lembaga Kemajuan Tanah Persekutuan v Mariam [1984] 1 MLJ 283

In this case, Felda engaged a contractor to weed and maintain a land scheme in Pahang. Unknown to them, the contractor sub-contracted the work. The workers of the sub-contractor lived in a Kongsi-house built by either the contractor or the sub-contractor on the land scheme. The house collapsed, causing death to an employee of the sub-contractor. The deceased’s dependents sued the contractor, sub-contractor and Felda. Felda denied liability, contending that as it did not know the contractor had subcontracted the work, the subcontract was unauthorized. Hence, the subcontractor’s employee i.e. the deceased, must in the circumstances of the case be a trespasser and as such Felda owed him no duty of care at all.

It was held by the Federal Court that even though Felda did not build the Kongsi-house, it however did allow for it to be erected and used by the weeding labourers, whose work benefitted Felda. The Court also found that Felda had control and supervision of the scheme as well as the well-being of the labourers, but Felda did nothing to ensure that the Kongsi-house was safe for them to live in, except for allowing it to exist and be used. For unknown reasons, the Kongsi-house collapsed. No proper explanation was forthcoming from Felda. The Court held that?Res Ipsa Loquitur?applies in this case in that the Kongsi-house must have been unsafe for human occupation and Felda is, therefore, liable of negligence.

ii)?David Chelliah @ Kovilpillai Chelliah David v Monorail Malaysia Technology Sdn Bhd & Ors [2009] 4 MLJ 253

In this case, the plaintiff was standing at a road divider directly below an elevated KL Monorail track when a safety wheel weighing 13.4kg from a KL Monorail train which was passing overhead on a test run came off and fell on the plaintiff. He suffered serious head and bodily injuries as a result.

The High Court held that, applying the principles of?res ipsa loquitur, it would be safe to assert that a safety wheel of a Monorail train does not, in the ordinary course of things, fall off and hit persons on the ground below. The safety wheel on the train was under the sole control of the first defendant who was the designer and manufacturer of KL Monorail train and second defendant who was responsible for the installation, commission and operation. The first and second defendants had failed to provide a reasonable explanation as to how the safety wheel had come off the train. They only alluded to a possibility that there had been tampering by unknown persons. However, no evidence of tampering was disclosed.

The Court found that the first and second defendants had fallen far short of discharging the onus. Negligence had been proven on the part of the first and second defendants. They were therefore liable to the plaintiff equally for damages and costs.

Separately, it is also observed that the maxim of?res ipsa loquitur?is accepted and applied by the Singapore Court.

In?Grace Electrical Engineering Pte Ltd v Te Deum Engineering Pte Ltd?[2017] SGCA 65 concerning a negligent claim due to a fire outbreak, the maxim was raised and applied in the said case.

A fire broke out on Grace Electrical (defendant)’s premises and spread to Te Deum (plaintiff)’s premises. The defendant had used its premises as (i) factory to work with cables and equipment; and (ii) unauthorised dormitory to house its foreign workers. The defendant allowed its workers to cook in the premises without obtaining approval required under the Fire Safety Act (FSA). The workers were cooking less than 3 hours before the fire started. None of the experts could identify the exact cause of the fire, but posited that the cause of the fire was possibly electrical in nature. The expert reports also stated that the fire likely started at an area that included the unauthorised accommodation area. The plaintiff then sued the defendant for the loss and damages to the plaintiff’s premises due to the fire. The High Court ruled that all the 3 requirements which are required for the application of?res ipsa loquitur?have been satisfied, and thus, the maxim is applicable. The defendant’s appeal to the Court of Appeal was dismissed.

Firstly, it was held by the Court that the defendant had possession and control of the premises as some of the defendant’s workers were in occupation of the premises where the fire occurred.?Second, whilst it may be unclear whether the specific breaches of the FSA directly caused the fire, the breaches led to the defendant’s unauthorised use of its premises as an accommodation area where the electrical appliances were located. Furthermore, but for the defendant’s breaches of the FSA, the workers would not have been cooking on the premises. Since the defendant breached the FSA multiple times, this was evidence that the defendant had, by its conduct, increased the risk of fire on its premises, bringing the breaches of the FSA as a cause of fire into the ‘realm of probabilities’. The defendant’s breaches of the FSA formed the backdrop of the Court of Appeal’s finding that the defendant had more likely than not breached its duty to the plaintiff because the breaches undeniably increased the risk of fire occurring on the defendant’s premises.?Third, the defendant has not been able to identify a cause of the fire which is consistent with reasonable care or which does not connote negligence on its part. The defendant relies on the expert reports which identified the possibility of other physical causes of the fire without expressing any view as to whether there was any negligence with regard to those causes. The Court of Appeal ruled that just because there are other possible causes does not mean that the third requirement of?res ipsa loquitur?is not satisfied. Based on the aforesaid, the Court of Appeal ruled that the maxim of?res ipsa loquitur?was applicable in this case and the affirmed the High Court’s findings that the defendant was liable for negligence.

To summarize, the maxim of?res ipsa loquitur?is an evidential rule to enable justice to be done when the facts bearing on causation and on the care exercised by the defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant. It is vital to note that this maxim is not synonymous with negligence. It merely infers negligence. But before this powerful maxim can be triggered, certain conditions must first be fulfilled.

About the Author

Jessica Yi Sing Wong ?is an Associate at HLP specialising in Dispute Resolution.

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