"Нәрсе өзі айтады"

Legal term Latin for "the thing speaks for itself"

Res ipsa loquitur (Latin: "the thing speaks for itself") is a doctrine in common law and Roman Dutch law jurisdictions under which a court can infer negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant behaved in the context of tort litigation. Although specific criteria differ by jurisdiction, an action typically must satisfy the following elements of negligence: the existence of a duty of care, breach of appropriate standard of care, causation, and injury. In res ipsa loquitur, the existence of the first three elements is inferred from the existence of injury that does not ordinarily occur without negligence.

The term comes from Latin and is literally translated "the thing itself speaks", but the sense is well conveyed in the more common translation, "the thing speaks for itself". The earliest known use of the phrase was by Cicero in his defense speech Pro Milone. The circumstances of the genesis of the phrase and application by Cicero in Roman legal trials has led to questions whether it reflects on the quality of res ipsa loquitur as a legal doctrine subsequent to 52 BC, some 1915 years before the English case Byrne v Boadle and the question whether Charles Edward Pollock might have taken direct inspiration from Cicero's application of the maxim in writing his judgment in that case.

Res ipsa loquitur often arises in the "scalpel left behind" variety of case. For example, a person goes to a doctor with abdominal pains after having his appendix removed. X rays show the patient has a metal object the size and shape of a scalpel in his abdomen. It requires no further explanation to show the surgeon who removed the appendix was negligent, as there is no legitimate reason for a doctor to leave a scalpel in a body at the end of an appendectomy.

In Canada the doctrine of res ipsa loquitur has been largely overturned by the Supreme Court. In case of Fontaine v. British Columbia (Official Administrator) the Court rejected the use of res ipsa loquitur and instead proposed the rule that once the plaintiff has proven that the harm was under exclusive control of the defendant and that they were not contributorily negligent a tactical burden is placed on the defendant in which the judge has the discretion to infer negligence unless the defendant can produce evidence to the contrary.

Hong Kong is one of the common law jurisdictions that use the doctrine of res ipsa loquitur. Some lawyers prefer to avoid the expression res ipsa loquitur (for example, Hobhouse LJ in Radcliff v. Plymouth). But other lawyers (and judges too) still find the expression a convenient one (for example, see the judgement of Mr Justice Bokhary, a Permanent Judge of the Court of Final Appeal of Hong Kong, in Sanfield Building Contractors Ltd v. Li Kai Cheong). The expression res ipsa loquitur is not a doctrine but a "mode of inferential reasoning" and applies only to accidents of unknown cause. Res ipsa loquitur comes into play where an accident of unknown cause is one that would not normally happen without negligence on the part of the defendant in control of the object or activity which injured the plaintiff or damaged his property. In such a situation the court is able to infer negligence on the defendant's part unless he offers an acceptable explanation consistent with his having taken reasonable care. In Rothwell v. The Motor Insurers Bureau of Ireland [2003] 1 IR 268 the supreme court held the burden of proof would shift when the knowledge is exclusive to the defendant, but also where it is "especially within the range" of the defendant's capacity to probe the facts.

In South African law (which is modelled on Roman Dutch law), there is no doctrine of res ipsa loquitur, although the phrase is used regularly to mean the "facts speak for themselves". Res ipsa loquitur does not shift any burden of proof or onus from one party to the other. The phrase is merely a handy phrase used by lawyers.

The doctrine exists in both English law and Scots law.

In English tort law, the effect of res ipsa loquitur is a strong inference in favour of the claimant that negligence has taken place. It does not however fully reverse the burden of proof (Ng Chun Pui v. Li Chuen Tat, 1988). The requirement of control is important in English law. This requirement was not satisfied in Easson v. LNE Ry [1944] 2 KB 421, where a small child fell off a train several miles after it had left the station. It was considered that the door of the train was not sufficiently under control of the railway company after the train started moving and could have been opened by somebody for whom the company was not responsible. This case was distinguished from the earlier Gee v. Metropolitan Ry where the plaintiff fell from the train immediately after it left the station, when the door through which he fell could still be considered to be fully controlled by the railway company. The requirement that the exact cause of the accident must be unknown is illustrated by the case of Barkway v. South Wales Transport. In this case a bus veered across the road and it was known that the accident was caused by a flat tyre. In this case, the plaintiff could not be assisted by res ipsa loquitur and had to go on to prove that the flat tyre was caused by the transport company's negligence.