Medical Negligence: — Res Ipsa Loquitur

It is assumed that the phrase was used or invoked for the first time in Byrne v Boadle (1863) 2 H and C 722, where a barrel of flour rolled out of an open doorway on the upper floor of the defendant's warehouse and fell on the plaintif who was a passer-by. A judge had said later that if it had not been expressed in Latin, no one would have noticed it as a principle: Lord Shaw in Ballard v N B Railway 1923 SC 43. The judicial trend in recent years has been to eschew Latin or bastard French phraseology, if avoidable.

See Scott v London and St Katharine's Docks Co (1865) 3 H &C 596; see Wigmore, Evidence (1905 USA) 2509.

See Khan, “Res ipsa loquitur: an update” (1984) 128 SJ 232; Khan “Standard of proof in medical negligence” (1984) 52 Medico-Legal J 117; Jones “Medical Negligence — the burden of proof” (1984) N L J 7; Hirsh et al “Res ipsa Loquitur and medical malpractice — Does it really work?” (1984) 30 Medical Trial Techniques Quarterly 452; Eaton “Res ipsa loquitur and medical malpractice in Georgia, A restatement” (1982) 17 Georgia L R 33, Poddell Application of Res Ipsa Loquitur in Medical Malpractice Litigation” 44 Ins Couns J 634; Rubsaman, “Res Ipsa Loquitur in California Medical Malpractice Law — Expansion of a Doctrine to the Bursting point” 14 Stanford L R 251.

[1970] AC 282.

[1939] 2 K B 14; see Rogers, Winfield and Jolowiez on Tort 12th edition.

[1951] 2KB 343.

[1863] 2 H &C 722; see note 1 above.

[1865] 3 H &C 596; see note 2 above.

Mahon v Osborne supra note 5.

See the USA case Mudd v Dorr (Colorado 1977) 574 p 2d 97; but see Schley v Palm Beach Martin County Medical Center Inc (Florida 1982) 415 So 2d 86.

Tice v Hall (North Carolina 1980) 80 CVS 1800.

Czubinsky v Doctors' Hospital (California 1983) 188 cal. R 685.

Borghese v Bartley (Florida 1981) 402 So 2d 475.

Cassidy v Ministry of Health (1951) 2 KB 343.

Clark v MacLennon [1983] 1 All ER 416, see Jones (1984) 100 LQR 355.

[1985] 1 All ER 635; see Khan, “Medical negligence: Some recent trends” (1985) Anglo-American Law Rev Vol 14, forthcoming.

[1973] 1 WLR 1; see Robertson (1981) 97 LQR 102; Kennedy [1984] 47 MLR 544.

See Watt v Thomas [1947] AC 484 HL; Whitehouse v Jordan [1981] 1 WLR 246 HL; Joyce v Yeomans [1981] 2 All ER 21 CA; Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; Hunter v Hanley 1955 SLT 217.

Maynard v West Midland Regional Health Authority [1985] 1 All ER 635; see Sidaway v Bethlem Royal Hospital convenors [1985] 1 All ER 643 where the judge accepted the expert witnesses produced on behalf of the doctor. The Court of Appeal [1984] 1 All ER 1018 affirmed his decision; the House of Lords dismissed the patient's appeal by 4–1 majority on the point of “informed consent” — the American doctrine now rejected in this country; see Khan “Informed Medical Consent” (1985) Litigation (forthcoming); Brahams NLJ.

Eckleberry v Kaiser Foundation (Oregon 1961) 266 Or 616, 359 P 2 and 1090.

The hospital in that case was not held to be liable; but see Mayor v Dowsett (Oregon 1965) 240 Or 196, 400 P 2 234 — where a woman, who had suffered paralysis after childbirth due to improper administration of spinal anesthetic, successfully pleaded res ipsa loquitur and won damages.

See the Royal Commission on Civil Liability and Compensation Cmnds 7054/1978.

Megaw L J in Lloyd v West Midlands Gas Board [1971]2 All ER 1240 and stated that res ipsa loquitur cannot really be described as a “doctrine”: “it is no more than an exotic, though convenient, phrase to describe what is in essence no more than a common sense approach … to the assessment of the effect of evidence in certain circumstances”. See also Turner v Mansfield Corporation (1975) 119 SJ 629. However, it appears that the principle is well established in the USA, while the English courts are now reluctant to use the Latin phrase.

[1969] WLR 475, per Lord Guest.

Ashcroft v Mersey Regional Health Authority [1983]2 All ER 245.