Tort Law: Res ipsa loquitur in Kenya

In the common law of torts, res ipsa loquitur(Latin for "the thing speaks for itself") is a doctrine that infers negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendantbehaved. Although modern formulations differ by jurisdiction, common law originally stated that the accident must satisfy the necessaryelements of negligence: duty, breach of duty, causation, and injury. In res ipsa loquitur, the elements of duty of care, breach, and causation are inferred from an injury that does not ordinarily occur without negligence.

ELEMENTS

1.The injury is of the kind that does not ordinarily occur without negligence or is uncommon in the course and nature of said act.
2.The injury is caused by an agency or instrumentality within the exclusive control of the defendant.
3.The injury-causing accident is not by any voluntary action or contribution on the part of the plaintiff.
4.The defendant's non-negligent explanation does not completely explain plaintiff’s injury.

The first element may be satisfied in one of three ways:

a) The injury itself is sufficient to prove blatant or palpable negligence as a matter of law, such as amputation of the wrong limb or leaving instruments inside body after surgery.

(b) The general experience and observation of mankind is sufficient to support the conclusion that the injury would not have resulted without negligence, such as a hysterectomy (removal of the uterus) performed when the patient consented only to a tubal ligation (clipping of the fallopian tubes for purposes of sterilization).

(c) Expert testimony creates an inference that negligence caused the injury, such as an expert general surgeon testifying that he has performed over 1000 appendectomies (removal of the appendix) and has never caused injury to a patient's liver. He also does not know of any of his surgeon colleagues having inflicted injury to a patient's liver during an appendectomy. The testimony would create an inference that injuring the liver in the course of an appendectomy is negligence.

The second element is discussed further in the section below. The third element requires the absence of contributory negligence from the plaintiff. The fourth element emphasizes that defendant may defeat a res ipsa loquiturclaim by producing evidence of a non-negligent scenario that would completely explain plaintiff's injury and negate all possible inferences that negligence could have occurred.

Contrast to prima facie

Res ipsa loquitur is often confused with prima facie ("at first sight"), the common law doctrine that a party must show some minimum amount of evidence before a trial is worthwhile.

The difference between the two is that prima facie is a term meaning there is enough evidence for there to be a case to answer. Res ipsa loquitur means that because the facts are so obvious, a party need not explain any more. For example: "There is a prima facie case that the defendant is liable. They controlled the pump. The pump was left on and flooded theplaintiff's house. The plaintiff was away and had left the house in the control of the defendant. Res ipsa loquitur."