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Res Ipsa Loquiter

The rules Res Ipsa Loquiter (the thing speaks for itself) is a rule of evidence, which basically, if there is no proof of negligence, in certain cases negligence can be presumed. It is mostly gone in Alberta and Canada, surviving only in certain cases.

The rule was considered by the Supreme Court of Canada in the case of Fontaine v. British Columbia (Official Administrator), 1998 CanLII 814 (SCC), [1998] 1 SCR 424. The Court said at paragraph 18:

... (see Clerk & Lindsell on Torts (13th ed. 1969), at para. 967, quoted with approval in Jackson v. Millar, 1975 CanLII 20 (SCC), [1976] 1 S.C.R. 225, at p. 235, and Hellenius v. Lees, 1971 CanLII 18 (SCC), [1972] S.C.R. 165, at p. 172):

The doctrine applies (1) when the thing that inflicted the damage was under the sole management and control of the defendant, or of someone for whom he is responsible or whom he has a right to control; (2) the occurrence is such that it would not have happened without negligence. If these two conditions are satisfied it follows, on a balance of probability, that the defendant, or the person for whom he is responsible, must have been negligent. There is, however, a further negative condition: (3) there must be no evidence as to why or how the occurrence took place. If there is, then appeal to res ipsa loquitur is inappropriate, for the question of the defendant’s negligence must be determined on that evidence.

{19} For res ipsa loquitur to arise, the circumstances of the occurrence must permit an inference of negligence attributable to the defendant. The strength or weakness of that inference will depend on the factual circumstances of the case. As described in Canadian Tort Law (5th ed. 1993), by Allen M. Linden, at p. 233, “[t]here are situations where the facts merely whisper negligence, but there are other circumstances where they shout it aloud.”

The Court mostly did away with the doctrine at 27:

It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate component in negligence actions. After all, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed.

If you require advice in these matters please feel free to contact us.

The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.

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