Res Ipsa Loquitur - The presumption of negligence

Negligence is the omission to do something which a reasonable man guided by those considerations which ordinarily guide the conduct of human affairs would do, or doing something that such man would not do. Succinctly put it is the unintentional failure to conform to the conduct of a reasonable Man. 

The Logical Question that arises is who is this reasonable man, about which we keep harping about in different areas of law, he's the man on the Delhi Metro, the Mumbai Local, neither too cautious nor overtly careless. 

Now we know that when a man fails to behave like a reasonable man with respect to a particular act/omission he is said to be negligent.  It presupposes the idea of an obligation in all of us towards the society at large to behave in a certain manner - so as, Atkin puts it, not to injure my neighbour. Who is, in law, my neighbour? The answer is a simple 'however is so intimately affected by my act, that I ought to have him/her in my contemplation before I act". This pretty much sums it. Now we negligence is an act/omission - that is breach of my duty towards somebody - and add to this - some loss to that person - and liability arises for negligence. 

Some cases of negligence are easy to prove for the very reckless conduct of a person - satisfies all the above requirements, for eg : driving a car at 100 km/hr in a Chandni Chowk Lane - negligence is writ large on the face here. In these matters the claimant need not be subjected to the requirement of proving the negligence traditionally. Res Ipsa Loquitur comes to his aid.   

Res ipsa loquitur - translates to "the thing speaks for itself". It is a rule of evidence that shifts the onus to disprove negligence on the person whose action has led to the damage. The very act of person speaks volumes about his lack of diligence and resulting loss. In East India Hotels v. Klaus Mittelbachert (1997 SC) - a sad story where a pilot dives into badly designed pool head first, and is rendered a handicap. The person was a good swimmer and an incident like this could not have happened but for the faulty design i.e. negligence of the hotel. The Court put the burden to disprove negligence (design of the pool) on the Hotel - which it failed to discharge. It also failed to prove that the victim was himself negligent or at least contributed to his injury. 

Bharat Chugh 

Advocate Supreme Court of India 

Email:bharat.law06@gmail.com