Res Ipsa Loquitur in Legal Terms

noviembre 28, 2022por admin

In South African law (modelled on Romano-Dutch law), there is no doctrine of res ipsa loquitur, although the term is regularly used to refer to «facts speak for themselves». Res ipsa loquitur does not transfer the burden of proof or the burden of proof from one party to the other. The term is just a practical term used by lawyers. Res ipsa loquitur often appears in the «scalpel left behind» variant. For example, a person with abdominal pain consults a doctor after their appendix is removed. X-rays show that the patient has a metal object the size and shape of a scalpel in his abdomen. No further explanation is needed to demonstrate that 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. [6] In English tort law, the effect of res ipsa loquitur is a firm conclusion in favour of the plaintiff that there has been negligence. However, it does not completely reverse the burden of proof (Ng Chun Pui v. Li Chuen Tat, 1988). [12] The difficulty in resipsa cases is usually to show exclusive control of the defendant. In another case, a woman was walking on the sidewalk next to a hotel when she was hit on the head by a chair that fell from a hotel window. She filed a Resipsa lawsuit against the hotel.

Although the collision with a falling chair is the type of accident that does not usually occur without negligence, and although the woman`s actions did not contribute to the injury, her claim for injury was dismissed. Indeed, the hotel did not have exclusive control over the furniture of its rooms, as it gave its guests partial control. Res ipsa loquitur does not apply in all cases of negligence. The doctrine applies only in situations where two factors are met. First, the accidentality must be such that the injury would not have occurred but for the negligence of the defendant. Second, the defendant must have management and control of the instrument that caused the offence. Haddock v. Arnspiger, 793 p.W.2d 948 (Tex.

1990). The second factor exists only in situations where the infringing instrument has not been affected by either the injured claimant or a third party. Bank, 185 pp.3d 43, 48 (Tex. App.—San Antonio, 2005). In Trejo v. Laredo National Bank, an automatic sliding door closed on the plaintiff`s hand when the plaintiff used the defendant`s automatic drive-thru machine. The San Antonio Court of Appeals ruled that res ipsa loquitor was not applicable. The applicant has not established that the defendant exclusively managed and controlled the ATM because a member of the public or the applicant herself could have manipulated the ATM. Bank, 185 pp.3d 43, 48 (Tex. App.—San Antonio, 2005). For more information about res ipsa loquitur, see this note from Yale Law Review and this note from St.

John`s Law Review. This article will elaborate on the meaning of res ipsa loquitur, the defense of res ipsa, and how negligence plays a role in this legal doctrine. According to this res ipsa model, the plaintiff must meet three requirements before a jury can find that the defendant`s negligence caused the damage in question: Note: For res ipsa loquitur to apply, the accident in question must not be the result of a voluntary act or contribution of the plaintiff. The doctrine traditionally requires that a defendant have exclusive control over the cause of injury, but now it is often applied when multiple defendants control a common or sometimes successive defendant (such as by the manufacturer and retailer of a defective product). In addition to the control requirement, which is sometimes replaced, there is the requirement that the defendant assume both responsibility for the instrument and liability to the plaintiff. For res ipsa loquitur to succeed in an action for medical malpractice, the fact that the accident is an accident that does not normally occur without the exercise of due diligence must be generally known to the layman. The accident alone should provide reasonable evidence of negligence, for example when a foreign body is left in a surgical patient. The term comes from Latin and is literally translated as «the thing itself speaks», but the meaning is well conveyed in the more common translation «the thing speaks for itself». [1] The first known use of the term comes from Cicero in his pro Milone defense speech. [2] [3] The circumstances of the genesis of the theorem and its application by Cicero in Roman judicial proceedings have led to the question of whether it reflects the quality of res ipsa loquitur as a legal doctrine after 52 BC. A.D., some 1915 years before the English case of Byrne v Boadel, and whether Charles Edward Pollock was directly inspired by Cicero`s application of the maxim in writing his judgment in that case.

[4] For an example of a dish using res ipsa loquitur, see Byrne v Boadle. Hong Kong is one of the common law jurisdictions that use the doctrine of res ipsa loquitur. The definition of res ipsa loquitur states that negligence can be presumed without proof. There could be no other explanation than negligence on the part of the defendant. In other words, although there is no direct evidence of negligence, the damage suffered by the victim can only be explained by negligence. (Rayz ip-sah loh-quit-her) n. Latin for «the thing speaks for itself», a legal doctrine according to which a person is considered negligent if he had exclusive control over what caused the injury, although there is no specific evidence of negligence, and without negligence the accident would not have occurred. Examples: a) A load of bricks on the roof of a building built by Highrise Construction Co. crashes and injures Paul Pedestrian underneath, and Highrise is responsible for the injury to Pedestrian even though no one saw the load fall. b) During anesthesia, Isabel Patient`s nerve in her arm is damaged, even though it was not part of the surgery, and she does not know which of a dozen doctors in the room caused the damage.

Under res ipsa loquitur, all persons involved in the operation are liable for negligence. Jurists often shorten doctrine to «res ips» and find it a practical shortcut for complex doctrine. «Res ipsa loquitur.» Merriam-Webster.com Legal Dictionary, Merriam-Webster, www.merriam-webster.com/legal/res%20ipsa%20loquitur. Retrieved 27 September 2022. Some lawyers prefer to avoid the term res ipsa loquitur (e.g., Hobhouse LJ in Radcliff v. Plymouth). [8] But other lawyers (and judges too) still find the expression appropriate (see, for example, the judgment of Justice Bokhary, Permanent Judge of the Supreme Court of Appeal of Hong Kong, in Sanfield Building Contractors Ltd v.