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."
Tort Law: Res ipsa loquitur in Kenya
Kenya Tort Law Cases: Donoghue v Stevenson
Outline
Also known as the "Paisley snail"[5][6] or "snail in the bottle" case, the case involved Mrs Donoghue drinking a bottle of ginger beer in a café in Paisley, Renfrewshire. A dead snail was in the bottle. She fell ill, and she sued the ginger beer manufacturer, Mr Stevenson. The House of Lords held that the manufacturer owed a duty of care to her, which was breached, because it was reasonably foreseeable that failure to ensure the product's safety would lead to harm of consumers.
Prior to Donoghue v Stevenson liability for personal injury in tort usually depended upon showing physical damage inflicted directly (trespass to the person) or indirectly (trespass on the case). Being made ill by consuming a noxious substance did not qualify as either, so the orthodox view was that Mrs Donoghue had no sustainable claim in law. However, the decision fundamentally created a new type of liability in law which did not depend upon any previously recognised category of tortious claims. This was an evolutionary step in the common law for tort and delict, moving from strict liability based upon direct physical contact to a fault-based system which only required injury. This evolution was taken further in the later decision of Letang v Cooper [1965] 1 QB 232 when it was held that actions should not be jointly pleaded in trespass and negligence, but in negligence alone.
Facts
On the evening of Sunday 26 August 1928, during the Glasgow Trades Holiday, Donoghue took a train to Paisley, Renfrewshire.[3][7]:1[7]:2In Paisley, she went to the Wellmeadow Café. A friend,[Note 2] who was with her ordered apear and ice for herself and a Scotsman ice cream float, a mix of ice cream and ginger beer, for Donoghue.[7]:4 The owner of the café, Francis Minghella,[Note 3] brought over a tumbler of ice cream and poured ginger beer on it from a brown and opaque bottle labelled "D. Stevenson, Glen Lane, Paisley". Furthermore, although the bottle was labelled as Stevenson's, McByde suggests it is possible it did not originally belong to him. Bottles were often reused, and in the process occasionally returned to the incorrect manufacturer. Moreover, Stevenson initially claimed he did not issue bottles matching the description provided by Donoghue.[3][7]:9–10Donoghue drank some of the ice cream float. However, when Donoghue's friend poured the remaining ginger beer into the tumbler, adecomposed snail also floated out of the bottle. Donoghue claimed that she felt ill from this sight, complaining of abdominal pain.[3][9]According to her later statements of facts (condescendences), she was required to consult a doctor on 29 August and was admitted to Glasgow Royal Infirmary for "emergency treatment" on 16 September.[7]:23[10]:7 She was subsequently diagnosed with severe gastroenteritis andshock.[3][8]:566
The ginger beer had been manufactured by David Stevenson, who ran a company producing both ginger beer and lemonade at 11 and 12 Glen Lane, Paisley, less than a mile away from the Wellmeadow Café.[7]:6–7 The contact details for the ginger beer manufacturer were on the bottle label and recorded by Donoghue's friend.[7]:11
Donoghue subsequently contacted and instructed Walter Leechman, a local solicitor and city councillor whose firm had acted for the claimants in a factually similar case,Mullen v AG Barr & Co Ltd,[11] less than three weeks earlier [3] (see also George v Skivington).
Despite the ruling in Mullen, Leechman issued a writ on Donoghue's behalf against Stevenson on 9 April 1929.[3][12]:31 The writ claimed £500 in damages, the same amount a claimant in Mullen had recovered at first instance, and £50 in costs.[7]:22[10]:4 The total amount Donoghue attempted to recover would be equivalent to at least £27,000 in 2012.[7]:22[13]
CondescendencesEdit
The full allegations made by Donoghue were presented in five condescendences, which claimed that Stevenson had a duty of care to Donoghue to ensure that snails did not get into his bottles of ginger beer, but that he had breached this duty by failing to provide a system to clean bottles effectively, a system that would usually be used in the business and was necessary given that the ginger beer was intended for human consumption.[7]:22–23The ineffectiveness of the cleaning system was alleged to result from the bottles being left in places "to which it was obvious that snails had freedom of access ... and in which, indeed, snails and snail trails were frequently found",[10]:6 an allegation described by Matthew Chapman as "somewhat gratuitous".[7]:7 This breach of duty was alleged to have caused Donoghue'ssubsequent illness.[10]:7
Stevenson responded to the condescendences by denying that any of his bottles of ginger beer had contained snails and "that the alleged injuries are grossly exaggerated ... any illness suffered by the [claimant] was due to the bad condition of her own health at the time".[10]:6–7 In response to the writ, Stevenson pleaded (1) that the claim had no legal basis, (2) that the facts could not be substantiated, (3) that he had not caused Donoghue any injury and (4) that the claimed amount was excessive.[7]:22–23[10]:8
Legal backgroundEdit
Injuries resulting from defective products were normally claimed on the basis of acontract of sale between the seller and the consumer.[3] However, Donoghue had nocontractual relationship with Minghella as she had not purchased the ginger beer; while her friend did have a contract through having placed the order, she had not suffered any injury. Moreover, neither had a contract with Stevenson, the manufacturer.[9] Donoghue was therefore required to claim damages fornegligence.[3]
Ansell v Waterhouse[14] had established in 1817 that legal liability could arise for an act or omission "contrary to the duty which the law casts on him in the particular case" (i.e. negligence).[15]:105–106 However, there was no general duty of care and therefore no general liability for negligent behaviour. Only limited exceptions to this rule were made in which duties were found in specific circumstances, most of which had a contractual background.[4]:643[15]:109[16]:86
The most difficult precedent for Donoghue was Mullen v AG Barr & Co Ltd, a recent Court of Session case. In Mullen, two children, John and Francis Mullen, and Jeanie Oribine had separately found dead mice in their bottles of ginger beer, manufactured by AG Barr & Co Ltd, and claimed to have become ill through drinking the tainted liquid. In separate hearings in Glasgow and Greenock Sheriff Court respectively, Orbine was successful in claiming compensation while the Mullens were not. The losing parties of both cases appealed to the Court of Session.[7]:16–17
At the Court of Session, the claimants argued that although there was no direct evidence that the manufacturer had been negligent in preparing the ginger beer, negligence could be presumed (res ipsa loquitur) from the mere presence of dead mice in ginger beer bottles. However, the court ruled against the claimants.[7]:16–17 The majority held that on a factual basis AG Barr & Co Ltd had rebutted a presumption of negligence and that on a legal basis product manufacturers only owed a duty of care to the ultimate consumers if there was a contractual relationship between the parties; if the dangerousness of the product was intentionally withheld from the consumer (in which case there might also be a claim for fraud); or if there was no warning of the intrinsic dangerousness of certain products, such as explosives.[3][7]:17–18 OnlyLord Hunter dissented, finding that negligence to be inferred and that the fact that the bottle contents could not be examined (because of the dark glass) gave rise to a specific duty of care that would allow consumers to claim for damages.[7]:18–19
However, neither of the circumstances in which negligence could be found in product liability cases applied to Donoghue: ginger beer is not intrinsically dangerous, nor did Stevenson intentionally misrepresent the threat it posed. Nevertheless, Donoghue'scounsel argued that manufacturers also owed a duty of care to their ultimate consumers if it was not possible to examine the goods before they were used, an exception that would apply to Donoghue.[9]
Judgment
The first interlocutory action was heard on the Court of Session on 21 May 1929 in front ofLord Moncrieff. After an adjournment, Minghella was added as a defender on 5 June; however, the claim against him was abandoned on 19 November, likely due to his lack of contractual relationship with Donoghue (Donoghue's friend had purchased the ginger beer) and his inability to examine the contents of the dark glass bottle. On 12 December, Minghella and Stevenson were awarded a combined costs claim of £108 6s3d against Donoghue for this abandoned strand of litigation. However, it was recorded on 20 December that Donoghue did not pay the costs awarded to Minghella.[7]:23–25
The case was heard by Lord Moncrieff in theOuter House on 27 June 1930. In his judgment, delivered on the same day, he held that, as a general principle, there should be liability for negligent preparation offood.[7]:25–26
I am unhesitatingly of opinion that those who deal with the production of food or produce fluids for beverage purposes ought not to be heard to plead ignorance of the active danger which will be associated with their products, as a consequence of any imperfect observation of cleanliness at any stage in the course of the process of manufacture ... Tainted food when offered for sale is, in my opinion, amongst the most subtly potent of 'dangerous goods', and to deal in or prepare such food is highly relevant to infer a duty. I fail to see why the fact that the danger has been introduced by an act of negligence and does not advertise itself, should release the negligent manufacturer from a duty, or afford him a supplementary defence.[17]:4,6
English case law that required that liability for injuries resulting from goods that were not intrinsically dangerous to have a contractual basis (breach of warranty) was dismissed by Lord Moncrieff (citing John Salmond) for the narrowness of the approach and because there was no decision that incorporated it intoScots law.[7]:26–27[17]:15–16 Finally, Mullen, despite its factual similarity, was discounted by a "very close reading of the precedent opinions"
Kenya Tort Law
- What is a tort
- Negligence
- Difference between a tort and a crime
- Defamation
- Nuisance
- Strict Liability
- Vicariuos liability
- Occupiers liability
- Trespass to goods
- Trespass to the person(assault,battery,false imprisonment)
- Defences to a tort
- Remedies to a tort
Kenya Tort law is a branch of the law which covers civil wrongs, such as defamation and trespassing, among many other transgressions. Under tort law, if someone suffers a physical, legal, or economic harm, he or she may be entitled to bring suit. If the suit is deemed valid, damages may be awarded to the victim to compensate for his or her troubles. Most tort laws are found in regional, state, and national civil codes, which often spell out limits on damages and the statute of limitations for tort cases.
Many people divide Kenya tort law into three rough categories: negligent torts, intentional torts, and strict liability torts.
Intentional torts
Intentional torts under the Kenya tort law are torts which involve a deliberate attempt to harm. Defamation is often viewed as an intentional tort, as is battery, fraud, false imprisonment, and interference with the economic operations of a company. For intent to exist, the individual must be aware that injury will be the result of the act. A common type of intentional tort is assault. Assault refers to an overt attempt to physically injure a person or create a feeling of fear and apprehension of injury. No actual physical contact need take place for an assault to occur. Battery, on the other hand, is an intentional tort that results from physical contact.For example, if a person picks up a chair and threatens to hit another person, assault has occurred; if the person then actually hits the second person, battery has occurred. Both assault and battery can occur if a person threatens another, causing apprehension and fear, and then actually strikes the other, resulting in actual injury.
Negligent Torts
Under the Kenya tort law,torts arising out negligence are civil wrongs caused by negligent behavior or a failure to practice due diligence. For example, if you are playing soccer in the street and you accidentally kick the ball through someone's living room window, this may be a negligence tort. Medical malpractice and other forms of professional negligence are also covered under the umbrella of negligence torts. The difference between negligence and an intentional tort is that in negligence the acts leading to injury are neither expected nor intended.Click here to read more on Negligence
Strict liability torts
Strict liability torts cover product liability; if a potato peeler takes your finger off when you operate it as directed, the manufacturer could be liable, for example.
Kenya Tort Law: Negligence
Kenya Tort Law:distinction between tort and crime
Below are some distinctions between a tort and a crime under Kenya law
Tort
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Crime
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i) Less serious wrongs are considered as private wrongs and have been labelled as civil wrong.
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i) More serious wrongs have been considered to be public wrongs and are known as crimes.
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ii) The suit is filed by the injured person himself.
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ii) The case is brought by the state.
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iii) Compromise is always possible.
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iii) Except in certain cases, compromise is not possible.
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iv) the wrongdoers pays compensation to the injured party.
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iv) The wrongdoer is punished.
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Breach of contract
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Tort
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i) It results from breach of a duty undertaken by the parties themselves.
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i) It occurs from the breach of such duties which are not undertaken by the parties but which are imposed by law.
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ii) In contract, each party owes duty to the other.
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ii) Duties imposed by law of torts are not towards any specific individual but towards the world at large.
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iii) Damage of contract is liquidated.
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iii) Damage of tort is unliquidated.
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iv) It provides limited remedy
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iv) It provides unlimited remedy.
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Tort
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Breach of Trust
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i) Damage of tort is unliquidated.
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i) Damage of breach of trust is liquidated.
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ii) Law of tort was part of common law.
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ii) Law of trust was part of Court of Chancery.
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iii) Tort is partly related to the law of property.
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iii) Trust is a branch of law of property.
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