Res Ipsa Loquitur (Proof of Negligence)

Though, as a general rule, the plaintiff has to discharge the burden of proving negligence on the part of the defendant, there are, however, certain cases when the plaintiff need not prove that and the inference of negligence is drawn from the facts. There is a presumption of negligence according to the Latin maxim ‘res ipsa loquitur’ which means the thing speaks for itself. In such a case, it is sufficient for the plaintiff to prove accident and nothing more. The defendant can, however, avoid his liability by disproving negligence on his part (rebuttal of the presumption of negligence).

(1) The maxim is not a rule of law. It is a rule of evidence benefiting the plaintiff by not requiring him to prove negligence (because the true cause of accident may lie solely within the defendant’s knowledge). It is a commonsense approach, not limited by technical rules.

(2) The maxim applies when- (i) the injurious agency was under the management or control of the defendant, and (ii) the accident is such as in the ordinary course of things, does not happen if those who have the management use proper care.

(3) The rule in Rylands v Fletcher is not an illustration of the mere principle of res ipso loquitur. The liability arising out of the principle can be repelled by proof that the defendant was not negligent, whereas under the Rylands rule it is no defence to say that defendant took every possible precaution to prevent the escape of the injurious thing.

(4) The principle of res ipsa loquitur has no application where the circumstances in which the accident has taken place indicate that there must have been negligence but do not indicate as to who was negligent or when the accident is capable of two explanations. Also, the maxim does not apply when the facts are sufficiently known.

In Agya Kaur v Pepsu R.T.C. (AIR 1980 P & H 183), a rickshaw going on the correct side was hit by a bus coming on the wrong side of the road. The speed of the bus was so high that it, after hitting the rickshaw, also hit the electric pole on the wrong side. Held that from these facts the only inference, which could be drawn, was that the driver of bus was negligent. Where an advertisement banner attached to a frame overhanging the road fell by a wind velocity of less than 27 miles per hour, the defendant is clearly negligent, and the maxim is applicable to the case (Manindra Nath Mukherjee v Mathura Das AIR 1946 Cal 175).

If a brick falls from a building and injures a passer-by on the highway, or the goods while in the possession of a bailee are lost, or a stone is found in a bun, or a bus going on the road overturns, or death of a person is caused by live broken electric wire in a street, or portico of a newly constructed hospital building falls down and results in the death of a person, a presumption of negligence is raised.

In Municipal Corpn., Delhi v Subhagwanti (AIR 1966 SC 1750), due to the collapse of the Clock Tower situated opposite to Town Hall in the main bazar of Chandni Chowk, Delhi, a number of persons died. The Clock Tower belonged to the Municipal Corporation of Delhi and was exclusively under its control. The Supreme Court explained the legal position as: “There is a special obligation on the owner of the adjoining premises for the safety of the structures which he keeps beside the highway. If these structures fall into disrepair so as to be of potential danger to the passer-by or to be a nuisance, the owner is liable to anyone using the highway that is injured by reason of the disrepair. In such a case it is no defence for the owner to prove that he neither knew nor ought to have known of the danger. In other words, the owner is legally responsible irrespective of whether the danger is caused by a patent or latent (hidden) defect.”

In a recent case- Rajkot Municipal Corpn. v Manjulben Jayantilal Nakum (1997) 9 SCC 552, the deceased while walking on the footpath of a public road was struck by a roadside tree suddenly felling on him in a still weather condition resulting in his death. The damages were claimed from the municipal corporation. The Supreme Court held: “When the defendant was not in know of the discoverable defect or danger and it caused the damage by accident like sudden fall of tree, it would be difficult to visualise that the defendant had knowledge of the danger and omitted to perform the duty of care to prevent its fault. Further, the conditions in India have not developed to such an extent that corporation can keep constant vigil by testing the healthy condition of the trees in public places. roadsides, highways frequented by passers-by.” Thus, it was held that the corporation is not liable for damages.