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Res Ipsa Loquitur

Factual Scenario
On March 8, 2018, a passenger airline owned and operated by Malaysian Airlines took off from Malaysia heading directly north to Beijing in China. There were 227 passengers on board. The last communication with the aircraft was at 1:19, Malaysian time, while they were over the South China Sea. In that communication, the flight crew did not indicate there were any problems. Then at 1:22, and for unknown reasons, the plane turned east heading out into the Indian Ocean. Attempts were made to contact the aircraft, but the crew could not be reached. Further, the plane was tracked by radar on a straight course for another hour until it moved beyond all radar tracking facilities. No wreckage of the plane was ever found, but it is presumed to have crashed in the Indian Ocean with all passengers and crew killed.
You are a research assistant for a U.S. newspaper, and you have been tasked with doing background information on the legal issues the families of the passengers would face if they sued. First, you discover that Malaysia’s tort law is based on English Common law and so it is identical to the tort law in the U.S. and that this would be a case that falls within the tort of negligence. Second, you recall from your business law class at Fresno City College, that there was a special doctrine in negligence called Res Ipsa Loquitur, that might apply if the families of the passengers were to sue.
Questions:

Fully summarize the law related to the negligence doctrine called Res Ipsa Loquitur (a discussion of this doctrine can be found on pages 236-239 of the e-textbook).
Analyze the facts in the factual scenario and decide if Res Ipsa Loquitur applies to this situation, and if it does, how it might benefit the families of the passengers if they sued. In your answer to this question, it is not enough to simply say whether they have been met or not. You must provide specific reasons based on the facts for your ruling.

Sample Solution

Res Ipsa Loquitur is a Latin phrase meaning “the thing speaks for itself.” It is a doctrine of negligence that may be used in certain circumstances to infer negligence on the part of a defendant without providing direct proof. The three elements necessary to establish Res Ipsa Loquitur are:
1) the accident or harm was caused by an instrumentality or agency which was exclusively within the control of the defendant;
2) the accident would not have occurred unless someone had been negligent; and
3) that plaintiff does not know what specific act of negligence caused their injury.
The purpose behind res ipsa loquitur is to shift the burden of proof from plaintiff to defendant, as it allows jurors to draw reasonable inferences due to defendants exclusive control over an

Firstly, Vittola discusses one of the just causes of war, most importantly, is when harm is inflicted but he does mention the harm does not lead to war, it depends on the extent or proportionality, another condition to jus ad bellum (Begby et al (2006b), Page 314). Frowe, however, argues the idea of “just cause” based on “Sovereignty” which refers to the protection of political and territorial rights, along with human rights. In contemporary view, this view is more complicated to answer, given the rise of globalisation. Similarly, it is difficult to measure proportionality, particularly in war, because not only that there is an epistemic problem in calculating, but again today’s world has developed (Frowe (2011), Page 54-6). Furthermore, Vittola argues war is necessary, not only for defensive purposes, ‘since it is lawful to resist force with force,’ but also to fight against the unjust, an offensive war, nations which are not punished for acting unjustly towards its own people or have unjustly taken land from the home nation (Begby et al (2006b), Page 310&313); to “teach its enemies a lesson,” but mainly to achieve the aim of war. This validates Aristotle’s argument: ‘there must be war for the sake of peace (Aristotle (1996), Page 187). However, Frowe argues “self-defence” has a plurality of descriptions, seen in Chapter 1, showing that self-defence cannot always justify one’s actions. Even more problematic, is the case of self-defence in war, where two conflicting views are established: The Collectivists, a whole new theory and the Individualists, the continuation of the domestic theory of self-defence (Frowe (2011), Page 9& 29-34). More importantly, Frowe refutes Vittola’s view on vengeance because firstly it empowers the punisher’s authority, but also today’s world prevents this action between countries through legal bodies like the UN, since we have modernised into a relatively peaceful society (Frowe (2011), Page 80-1). Most importantly, Frowe further refutes Vittola through his claim that ‘right intention cannot be used as an excuse to wage war in response to anticipated wrong,’ suggesting we cannot just harm another just because they have done something unjust. Other factors need to be considered, for example, Proportionality. Thirdly, Vittola argues that war should be avoided (Begby et al (2006b), Page 332) and that we should proceed circumstances diplomatically. This is supported by the “last resort” stance in Frowe, where war should not be permitted unless all measures to seek diplomacy fails (Frowe (2011), Page 62). This means war shouldn’t be declared until one party has no choice but to declare war, in order to protect its territory and rights, the aim of war. However, we can also argue that the war can never be the last resort, given there is always a way to try to avoid it, like sanctions or appeasement, showing Vittola’s theory is flawed.>

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