TORT OF NEGLIGENCE

CONTENT

1.0     Introduction

2.0     Objective

• Main Content
• Tort of Negligence
• Proof of Negligence
• Existence of Duty of Care
• Proof of Breach of duty of Care
• Proof of Damage Resulting from Breach

4.0     Conclusion

5.0     Summary

6.0     Tutor Marked Assignment

7.0     References/Further Readings

INTRODUCTION

Negligence in torts means omission to do something which a reasonable man would do or do something which a reasonable man wouldn’t do. Negligence is the breach of a legal duty to take care which result in damage underserved by the defendant to the plaintiff. This unlike intentional tort where the defendant desired the consequences. Here it is undeserved damage to the plaintiff.

OBJECTIVES

The purpose of this unit is to enable the student to know;

1. The definition of Negligence and to establish Negligence if he must proof the duty of care.
2. The consequences of the breach of duty of care
3. The question of damage resulting form the duty of care

MAIN CONTENT

Duty of Care

The development of this tort is categorized into 3 phases. The first phase was  when negligence was merely a component of other torts.

The second phase when Negligence develop into action on the cases and this saw the beginning of negligence as an independence tort.

The third phase was from the decision of Donovhe v Stephenson (1932) Ap 562.  In this case, Negligence was fully recognized as an independent tort capable of extention into new category.

To establish Negligence the plaintiff must proof three things;

1. He must prove the existence of duty of care
2. He must proof the breach of that duty of care
3. He must proof damage resulting from the breach

Whether a legal duty exists or not depend on reasonable forceability of the injury. This test was propounded by Lord Atkin in Donohue v Stephenson: Lord Atkin said “You must take reasonable care to avoid acts or omission which you can reasonably foresee would be likely to injure your neighbor and as to who is your neighbor, Lord Atkin said “your neighbor in Law include those persons who are  so closely and directly affected by your acts, that you ought reasonably to have them in contemplation as being so affected when you are directing your mind to the act of omission that are called to question”. So your neighbor does not mean those closer or nearest to you but those who you foresee likely to be affected by carelessness on your part.

In Donochue v Stephenson (19832) AP 532 a manufacturer of Ginger Beer sold his product to a retailer, the retailer resold it to a lady who bought it for a friend of her’s who was the plaintiff in ht case. The plaintiff had consume most of the  ginger beer when she noticed the decomposed remains of a snail in the beer. She became so sick that she had to be hospitalized and sued the manufacturer for damages in respect of her injury. The manufacturer claimed that there was no contractual relationship between it and the consumer and for that reason the plaintiff is not entitled to an action.

It was held by the Court that it is true that the plaintiff does not have contractual relationship with the manufacturer but the plaintiff nonetheless is entitled to an action in tort because his action was not based on contract.

SELF ASSESSMENT EXERCISE

Discuss the Negligence principle as laid down in Donoghue v. Stephenson.

The neighbor principle contained to expand to cover different category, the court is saying that when there is a reasonable foreseability of injury, the defendant owes the plaintiff a duty of care to ensure the plaintiff does not suffer such injury. However, there are exceptions to the rule which the court based on justification, valid explanation or policy reasons and because of this, the court may negative or reduce or limit the scope of duty owned by the defendant to the plaintiff.

Osemobor V Niger Biscuit (1973) 1 CCHC J At 71. In this case the plaintiff was eating some biscuit which he bought form a shop when he felt a hard object, he then found a decay tooth embedded in the biscuit, the plaintiff became ill and sue the manufacturer. The court applied the principle in Donoghue v Stephenson and held that the manufacturer owe a duty to ensure that the plaintiff does not suffer harm as a result of using the defendants goods.

Also in case of Nigeria Bottling Co. v. Constant Ngonadi (1985) 1 NWLR 739 SC. The plaintiff action appears to be based on negligence and breach of warrantee of fitness. Under the provision of section 15(a) of the former Bendel State of Nigeria Sales of Goods Law. In that case Maidol j in the High Court addressed himself to two issues;

1. Whether the defendant known for what purpose the plaintiff bargain for and bought the fridge
2. Whether the defendant gave the plaintiff an oral warrantee of fitness of the fridge for the purpose of which it was brought.

What happened was that the plaintiff bought a refrigerator from the defendant company and the plaintiff complained that the refrigerator was not working properly. The defendants men carried the refrigerator and carry out repairs before returning it back to the plaintiff. Some few weeks after they returned it, the refrigerator exploded giving the plaintiff extensive burns. The plaintiff then brought an action alleging negligence on the part of the defendant and breach of warrantee of fitness for the purpose under the Sales of Goods Law.

The trial judge held that the defendant knows for what purpose the plaintiff required the refrigerator and was satisfied that the defendant guaranteed that the refrigerator would serve the plaintiff purpose. The judge therefore said that the defendant cannot assert that they merely sell the refrigerator and not manufacture it.

The judge said that the defendant gave the condition that the goods was reasonably fit for the purpose of for which it was bought and that they owe a duty of care to the plaintiff. The plaintiff was awarded damages for Negligence. The defendant appealed to the Supreme Court, the Supreme Court upheld the judgment of the high court saying that the defendant was negligent in supplying a defective refrigerator to the plaintiff.

The Supreme Court said interalia, where as in this case, a warrantee was implied by statute and the plaintiff action was based on the breach of that warrantee in order words, the warrantee forms the basis of the action in Negligence, the onus was still on the plaintiff/respondent to proof the special relationship out of which arose the duty of care and what amounted to a breach of that duty.

SELF ASSESSMENT EXERCISE

High Court and Supreme Court in the case of Nigeria Bottling Company v Ngodagi could be criticized on the strength that it was based on contract and not tort. Discuss.

Breach of Duty of Care

For an action in Negligence to succeed, it must be proved that the defendant has breached his duty of care; in other words that he has not done what he ought to have done in the way he ought to have done it or has done what he ought to have done negligently.

In White v Bassey (1966) 1 NWLR 26: a motorist was driving along the street on a rainy day. It was proved that he did not speed and was not careless. A five year  old boy dashed along the road and was knocked down by the car. It was held that the motorist had a duty of care all right along a highway particularly on a raining day not to speed and to be mindful of other road users. But in this particular case, since he had done what was expected of him under the circumstances he had not breach the duty. A defendant would breach a duty if he acted below the standard  of a reasonable man.

In deciding what a reasonable man would have done in the circumstance, and in assessing the standard of care expected of the defendant the court may take into account the “Ruk Factor”. This has four elements.

The Likelihood of Harm

The greater the likelihood that the defendant conducts will cause harm, the greater the amount of caution required of him. In the Lord Wrights words in Northwestern Utilities Ltd v London Guarantee and Accident Co. Ltd (1936) A 108 at P. 126. “The degree of care which the duty involves must be proportioned to the degree of risk involved if the duty of care should not be fulfilled.

The Seriousness of the Injury that is risked

The gravity of the consequences if an accident were to occur must be taken into account. The classic example is Paris V. Stepney Borough Council (1951) AC  367: Here the defendant employed the plaintiff as a mechanic in their maintenance department. Although they knew that he had only one good eye, they did not provide him with goggles for his work. While he was attempting to re move a pair from underneath a vehicle, a piece of metal flew into his good eyes and he was blinded it was held that the defendant had been negligence in not providing this particular workman with goggles, since they must have been aware of the gravity of the consequences if he were to suffer an injury to his one good eye.

The importance of Utility of the defendant Activity

The seriousness of the risk created by the defendant activity and where the defendant could not has great social values; he may be justified in exposing others to risk which would not otherwise be justifiable. In all cases, one must balance the risk against the end to be achieved and the commercial and to make a profit is very differently form the human and to save life or limb.

The Cost and Practicability of Measures to Avoid the Harm

Another relevant question is how costly and practicable it would have been for the defendant to have taken precautions to eliminate or minimize risk. It is a matter of balancing risk against the measures necessary to eliminate and “a reasonable man would only neglect……. Risk of small magnitude if he had some valid considerable expense to eliminate the risk. In Latiner v A.E.C. Ltd. (1952) 2 Q. B. 701 where the court held that: where a factory floor had become slippery after, and the occupiers did everything possible to make the floor safe but nevertheless a workman slipped on it and sustained injuries, the court held that the occupier had not seen negligent. The only other possible stop they could have taken would have been to close the factory, a position which will be too drastic.

CONCLUSION

It has been established that a reasonable man is an adult of normal presence who exhibits average intelligence and common sense in every day matters, or, beyond this. If the defendant is a medical doctor the standard of an average qualified medical doctor would be ascribed to him in ordinary Doctor-patient relationship.

It follows from this that if a patient rather than go to a qualified doctor chooses a quack and suffers injury from the treatment, he cannot expect the standard of a qualified doctor from the quack; whether there has been a breach or not is a question of facts to be established from the case in court.

SUMMARY

In this Unit you learnt about the essential element to establish to succeed in an action of Negligence:

7. The existence of a duty of care by the defendant.
8. The breach of the duty of care by the defendant.
9. Damages suffered by the plaintiff as a result of the breach by the defendant of that duty of care.

TUTOR MARKED ASSIGNMENT

1. What are the elements of negligence and how are these established
2. Critically examine the standard of care required of the defendant in the care of Negligence.

REFERENCES/FURHTHER READINGS

1. Bodunde Bankole: Torts: Law of Wrongful Conducts (1998) Libriservice Press, Lagos
2. Kodo;uye: Nigeria Law of Torts (1999) Spectrum Publishers, Ibadan
3. John G. Fleming: The Law of Torts (1977) The Law Book co. Ltd.
4. Nikie Tobi: Souces of Nigeria Law (1996) Mij