RES IPSA LOQUITUR

(EVIDENTIAL RULE IN PROVING NEGLIGENCE)

Dr. Sonny Zulhuda

LAW 1510
 Outline
• Definition of the Maxim
• Origins & Rationale
• Effect: Inference of Breach
• Elements to Establish the Maxim
• Case studies
 “Res Ipsa Loquitur”
• Literally means: “The thing speaks for itself”
– The “thing” = the “fact(s)”

• It is a not a rule/principle of substantive law, but

rather a rule of evidence affecting the onus of proof…
premised on common sense, fair play and justice.
– per Harmindar Singh JC, in David Chelliah v Monorail
Malaysia [2009]

• To be raised by Plaintiff in negligence and nuisance

cases.
 Origins of the Rule…
Scott v London and St Katherine Docks Co (1865) 3 H&C 596

• P (a customs officer) was injured by some sugar bags

falling on him in the defendant's warehouse.
• Erle CJ:
sugar
– There must be some reasonable evidence of
negligence.
– But where the thing is shown to be:
– under the management of the defendant or his
servants, and
– the accident is such as in the ordinary course
of things does not happen if those who have
the management use proper care,
– it affords reasonable evidence, in the absence
of explanation by the defendants, that the
accident arose from want of care.
 Rationale of the Rule…
David Chelliah v Monorail Malaysia [2009] 4 MLJ 253

• The basic rule that it is for the plaintiff to

prove negligence and not for the
defendant to disprove it, may cause
hardship to the plaintiff if it is impossible
for him to know what precise acts or
omission led to this damage…

• and this is most obviously so where the

cause of the damage is peculiarly within
the means of knowledge of the
defendant who caused it.

– Also cited in MA Clyde v Wong Au Mei

[1970] 2 MLJ 183
 Effects of the Rule…
Lloyd v West Midlands Gas Board [1971] 2 All ER 1240

Megaw LJ described the rule as a common sense approach to the effect

of the evidence in certain circumstances.
It means that a plaintiff prima facie establishes negligence where:
1. it is not possible for him to prove precisely what was the relevant
act or omission which set in the events leading to the accident, but
2. on the evidence as it stands at the relevant time it is more likely
than not that the effective cause of the accident was some act or
omission of the defendant or of someone for whom the defendant
was responsible, which act or omission constitutes a failure to take
proper care for the plaintiff's safety.

• Cited by Malaysian courts in: Teoh Guat Looi v Ng Hong Guan

[1998] 4 AMR 3815; and David Chelliah v Monorail Malaysia
[2009] 4 MLJ 253.
 3 Elements under RIL
The thing was under the control of the D

• Lembaga Kemajuan Tanah Persekutuan v Mariam [1984] 1

MLJ 283

In the ordinary course of business, it does not

usually happen unless with negligence
• Pacific Tin Consolidated Corp v Hoon Wee Thim

Absence (or lack) of explanation from Defendant

• David Chelliah vs Monorail Malaysia Technology Sdn Bhd

[2009] 4 MLJ 253
 Lembaga Kemajuan Tanah Persekutuan v Mariam
[1984] 1 MLJ 283
• The appellants (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 of an

employee of the sub-contractor. The
deceased’s dependants sued the
contractor, sub-contractor and Felda.
Felda denied liability, contending that
since they owed no duty of care since
there was no contractual liability.
 Lembaga Kemajuan Tanah Persekutuan v Mariam
[1984] 1 MLJ 283

• Salleh Abbas:
– “Can Felda now turn around and say it was not liable to the injured
occupant because it did not build the kongsi-house? In our view, it
cannot. Although Felda did not build it, it allowed to be erected and
used by the weeding labourers, whose work benefited Felda, and
although it had control and supervision of the scheme and well-being
of the labourers, Felda did nothing to ensure that the kongsi-house
was safe for them to live in. It only allowed it to exist and be used.

– In our view, this is not enough. It most go further and see that they are
complied with.”

• Court held that the Kongsi-house for unknown reason collapsed,

and no proper explanation was forthcoming from Felda. Therefore,
RIL was applied in that the kongsi-house was unsafe and Felda was
found liable.
Pacific Tin Consolidated Corp v Hoon Wee Thim

• App maintained on their lands large ponds for tin dredge-mining operations.
They separated each ponds with bunds (embankment street). The ponds
were above ground level. Water flow from one pond to another by means of
spillways. The land was located in an inclined valley.

• A large breach in the bund between two large ponds, which together held
nearly 500mil gallons of water, caused a violent outflow to the lower lands.
This caused extensive damage to life and property to the adjacent lands.

• Plaintiff (Respondent) sued App for the damage.

Pacific Tin Consolidated Corp v Hoon Wee Thim

• Federal Court held the appellant

liable in negligence.

• Ong Hock Thye: The maxim RIL

applied.

• It seem self evident that, when one

portion gave away, while another
stood up to a strain that affected the
whole bund equally, they were not
equally stable, unless the collapse
could be traced to some external
cause operating on one but not the
other.
David Chelliah @ Kovilpillai Chelliah David v
Monorail Malaysia Technology Sdn Bhd & Ors
[2009] 4 MLJ 253
David Chelliah v Monorail Malaysia Technology Sdn Bhd
& Ors [2009]
• Prior to the opening of the KL Monorail, on 16
August 2002, an accident occurred during a
test run involving a 13.4 kg safety wheel falling
off a train and hitting the head of a pedestrian
walking under the monorail overpass at Jalan
Sultan Ismail.

• The victim, Mr David Cheliah, a journalist,

suffered injuries that required hospitalisation.

• He filed a RM5million negligence suit against

the monorail companies involved in the
design, installation and operation of the trains,
as well as the Director-General of Railways.
David Chelliah v Monorail Malaysia Technology Sdn Bhd
& Ors [2009]

BURDEN OF PROOF?

• In any action for negligence, the burden is on the plaintiff

to prove certain specific acts or omissions on the part of
the defendant to show some negligent conduct.

• Sometimes a prima facie inference of negligence may be

drawn from the circumstances of the case by recourse to
the maxim known as res ipsa loquitur.

• Loosely translated, this Latin phrase means 'the event

speaks for itself'. It is essentially a rule of evidence
premised on common sense, fair play and justice.
David Chelliah v Monorail Malaysia Technology Sdn Bhd
& Ors [2009]

BASED ON THE FACTS OF THE CASE:

• A safety wheel of a monorail train does not, in the ordinary course

of things, fall off and hit persons on the ground below. It will also be
fair to say that the safety wheel on the train was under the sole
control of the defendants or their servants.

• Although P could point to the safety wheel coming off the monorail
train, he is unable to state precisely why the wheel had come off…
therefore clear to me that the plaintiff had made out a prima facie
case of negligence on the part of the first and second defendants.

• It was therefore incumbent on the part of the first and second

defendants to provide credible evidence to show that the incident
occurred without negligence.
David Chelliah v Monorail Malaysia Technology Sdn Bhd
& Ors [2009]

R.I.L  Inference of Negligence

(What should Defendant do?)

• An inference of negligence can be rebutted by introducing

evidence.

• Although the burden of proof remains throughout on the plaintiff,

where a prima facie case of negligence has been made out, the
defendant bears the burden of introducing evidence to explain and
show how the incident occurred without negligence on his or her
part.

• Failure to do so will establish liability on the part of the defendants

David Chelliah v Monorail Malaysia Technology Sdn Bhd
& Ors [2009]

• it was held in Moore v R Fox & Sons

[1956] 1 QB 596 that the onus of
proof is not discharged by merely
showing that the accident was
inexplicable.

• To discharge the onus they had to go

further and either show that they
had not been negligent, or give an
explanation of the cause of the
accident which did not connote
negligence by them.
David Chelliah v Monorail Malaysia Technology Sdn Bhd
& Ors [2009]
• In the present case, 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… (and) significantly, it could not
have been the only possible cause.

• It might also have been the case that the bolts

were not sufficiently tightened by the
employees of the defendants… In my view,
the first and second defendants have fallen
far short of discharging the onus. 1st and 2nd
defendants were found liable.