Res Ipsa Loquitur
Res ipsa loquitur in the terms of a motor vehicle accident means that the evidence compels an inference of negligence in the absence of an explanation from the defendant:
It emphasises the presence of a high probability of negligence.
The two basic requirements for res ipsa loquitur are
- That the occurrence must be of such a kind which ordinarily does not occur unless someone has been negligent.
- It must be due to a thing or means within the exclusive control of the defendant.
The Occurrence
Before it can be said res ipsa loquitur the occurrent must create a high probability of negligence, and it is submitted, res ipsa loquitur should be restricted to such an occurrence.
This maxim has no general application to motor vehicle accident cases because in collisions between fast moving vehicles every driver has to adapt his conduct to that of others and there may be “lacking that degree of exclusive control which would warrant an inference of negligence against one or the other or both” nevertheless, where conditions for res ipsa loquitur are present in a motor collision there is no reason why the maxim should not apply. In fact in practice it is frequently applied in the following cases:
Driverless runaway vehicle
Where an unattended motor vehicle parked on the gradient ran down the road and collided with another vehicle it has been held res ipsa loquitur because if the motorist had properly braked the vehicle the accident would not have occurred.
Vehicle driving onto incorrect side of the road
Where a motor vehicle drove onto the incorrect side of the road and collided with an approaching vehicle it has been held res ipsa loquitur because the only reasonable influence was that the defendant`s driving onto the incorrect side of the road at an inopportune moment was due to his failure to exercise proper care. Proof that the vehicle was on its incorrect side of the road at the time of the collision is prima facie proof of the diver's negligence.
(Groenewald v Conradie 1965 (1) 184 (A)
Vehicle overturning while travelling along the road/ negotiating a bend
When a motor vehicle overturns while travelling along a straight road or negotiating a bend it has been held res ipsa loquitur because in the ordinary course of events a motor vehicle under proper control and driven with due care does not capsize.
(Sauerman v Barnard 1958 (4) SA 149 (O)
Vehicle colliding with a vehicle travelling ahead
Proof that the motor vehicle in a stream of traffic collided with a vehicle ahead is prima facie proof of negligence.
A driver must anticipate the possibility of a vehicle travelling ahead in a stream of traffic stopping suddenly. A following driver is thus under a duty so to regulate his speed and his distance from the vehicle ahead as to be able to avoid a collision should the vehicle ahead stop suddenly. If the driver of the following vehicle is unable to do so and a collision results, the inference is that he was either travelling too closely to the vehicle ahead or too fast or that he was not keeping a proper lookout. Hence, proof of the collision is prima facie proof of negligence; In fact, res ipsa loquitur was proven in
(UNISWA v Bezuidenhout 1982 (3) SA 957 (A)
Vehicle colliding with a parked / stationary vehicle
Where during daytime a motor vehicle collided with a parked or stationary vehicle it was held res ipsa loquitur because in the ordinary course of events this does not occur if the defendant's vehicle is under proper control and is being driven with due care.
(Rautenbach v De Bruin 1971 (1) SA 603 (A)
It is however important to note that not every occurrence that justifies an inference or negligence justifies finding of res ipsa loquitur. Before it can be said that the rule is applicable the occurrence must create a high probability of negligence and, it is submitted that it should be restricted to such an occurrence.
In the matter of Madyosi and another v SA Eagle Insurance Company 1990 (3) SA 442 (AD) it was said:
" At the end of the case the Court has to decide whether, all of the evidence and probabilities and the inferences, the plaintiff has discharged the onus of proof on the pleadings on a preponderance of probabilities, just as the Court would do in any other case concerning negligence "
Explanation in rebuttal
A finding of res ipsa loquitur is equivalent to a finding that the plaintiff has led sufficient evidence upon which a reasonable man might infer negligence on the driver's part and give judgment for the plaintiff. Such findings calls for an explanation from the defendant and thus precludes a judgement of absolution at the end of plaintiff’s case.
The onus of proving negligence remains on the plaintiff and after hearing all the evidence the enquiry is whether the plaintiff has discharged the onus of proof on a balance of probabilities that the defendant was negligent.
The explanation expected of the defendant will depend upon the nature of the case and the relative ability of the parties to contribute evidence on issue. A defendant must do more than merely show that his explanation may reasonably possibly be true. His explanation must be supported by a substantail foundation of fact and be sufficient to destroy the probability of negligence presumed to be present prior to the testimony adduced by him.
Once the defendant gives an explanation sufficiently cogent to destroy the probability of negligence arising from the occurrence the enquiry is where, on the evidence as a whole, the probabilities lie. If the probabilities are substantially in favour of the claimant he succeeds. If not, he fails.