PROOF OF NEGLIGENCE

 CONTENT

1.0       Introduction

2.0       Objective

3.0       Main content

4.0       Conclusion

5.0       Summary

6.0       Tutor marked assignment

7.0       References/further reading

INTRODUCTION

Negligence must be proved by whoever alleges it, if there  is a duty and a breach  of it but no injury or damage can be proved, an action in negligence would fail. If there is damages, it must be traceable to the breach. It must be a damage foreseeable to a reasonable man as likely to arise form the breach. The damage must not be too remote.

OBJECTIVES

At the end of this unit, you should be able to:

1. Explain the circumstances of negligence act
2. Know the plea Res Ipsa Ioquitor
3. Know the appropriate condition under which Res ipsa loquitor will apply

MAIN CONTENT

Proof of Damages

There are causation in fact and Causation Law. That of fact if first consider before that of Law.

You must prove that the breach of duty of care is the cause of damages. There is causation fact and Causation in Law. You must decide the issue of causation in  fact before that of Law. Causation is concerned whether the breach of duty was a matter in fact the cause of the plaintiff damage. The remoteness of damages is concerned with the fact as a matter of Law; the breach of duty is the cause of the plaintiffs damage. The plaintiff is unable to prove that the defendant breach in actual fact causes his damage he will fail. The Court apply the “But for” test.  If  the plaintiff prove that but for the defendant negligence his damage wounding have occurred. He will succeed eg. Barnet v Chelsea & Kessigton  Hospital Management (1969) 1 OB 428. In this case the deceased came to hospital complaining of vomiting after taking some tea. The nurse on duty phoned the doctor. But instead of the doctor coming he told the deceased to see his own general practitioner. Late in the day he died, it was found that he died of food poison. In an action by the wife against the hospital for the negligence of the doctor. It was held that the doctor was actually in breach of his duty of care. And that breach was not the cause of the deceased death.

It was argued however, that even if the doctor treated him effectively he would still have died. He was not liable. See also Culther v Bedford  Motors (1971)  1 OB 418.

Note that sometimes they may be more than one cause. Where the causes caused different types of damages each person will be liable for the consequences of his own act. Problem may however arise where the cause are merged. E.g. Parker v Willoughby (1970) A.C. 467. In this case the plaintiff was injured in his leg by the defendant negligence that caused him to be disabled and therefore unable to maintain his former job. He has to take on a lower paid job, a place where robbers attacked him and shot the already wounded leg and the leg had to be amputated. This happened before trial. The defendant argued that his negligence action was not the cause of the amputation and that the second injury had obtained his own injury. The court had that the defendant was still liable to the plaintiff since the only result of the robbers action was the amputation of an already damaged leg and therefore the defendant action was still the cause of the plaintiff loss.

More important than causation in fact is causation in law. It is evidence that a plaintiff cannot be made answerable for all the consequences of his actions without end. There must be a line drawn with regards to the consequences in which the defendant won’t be too remote for . The question of causation in law is quite complex and sometimes the court had resorted to common sense and policy criteria rather than scientific criteria the case of the Munnity of war transport (1942) AC 127 where Lord Wright said that Causation can only be understand as the man in the street would understand it. And therefore the choice of the real or effective from out of a whole complex of factors must be made to apply to common sense of standard.

A similar view was expressed in another case where the judge said that the court will apply public policy experience, and a rough sense of justice in deciding the question of causation in Law.

It should be noted that this does not imply that the judges are to act as arbitrary because there are certain laid down principles which should guide the judges when making their decision. In fact what the judges are saying is that there must be a link between the defendant’s action and the plaintiffs damage and such a link must not be disturbed by any other event or by the act of a 3^rd party. Once there is intervention of a new course thereby making the link, the defendant ceases to be liable. There are two cases which compete against each other with regards to remoteness of damages. The first one is the direct consequences “Best”  established by the case of Re-Polems (1921) 3 KB 560 that case states that the defendant is liable for all the consequences whether foreseeable or not which can be directly traced to his act.

The second application is to be found in the case of the wagon mand (1961) AC 388 which rest the “Reasonable foresight test”. That text state that all consequences which could not reasonably be foreseen are too remote whether or not the flow directly from the defendant acts.

Re-Polems was decided by the house of Lords in England while wagon Mand by Privy Council. But Wagon Mand has in fact over rule Re-Polemis.

RE-POLEMIS case (1921). In this case, the charterer of a ship employed Stevedove to off-load a ship. Among the cargo in the ship were tins of Benzine some of which had leaked during the voyage and therefore a lot of petrol vapor has collected in the hold of the ship. The af’s servant negligently dropped a plank on the hold which has leaked.   This caused a spark which ignited the Benzines.  And a fire which eschewed damage the ship. The arbitrator before whom the parties appeared held inter alia that the fire was caused by the spark from falling plank which came into content with petrol vapour. They also found that the spark itself could not reasonably have been anticipated by the falling of the plank even though some damages to the ship was foreseeable. Despite the findings of the arbitration, the court had the af was liable because of the fact that the ptfs damage was a direct resort of the af’s negligence action. The court said that duty of care was me thing and that damage was another and that different tests apply to both issues.

Several years later the privy Council had the opportunity to decide on a similar issue in the case of the Wagon Mlaud. In this case a company O. T. Ltd had chartered a ship known as the Wagon Mound. The ship was anchored of a wharf belonging to C. Oil Coy for the purpose taking fule. The servant of O.T. Ltd Negligently split a large amount of oil on water and this quickly spread to outside of the Labour and onto the wharlf which belong to M.B. Ltd, where some wielding work was being carried out on a ship. Upon noticing the present of oil in the water the manager of M.B. Ltd ordered wedding work to stop the approaching the manager of C. Oil Coy as to the safety of continuing wedding work in view of /Oil on water at the wharlf. C. Oil Coy assured him that there was no fear and coupled with his own knowledge that it is not normal for water and oil to unite. He order4ed work to continue but with precautions. Some few days later the oil  caught fire and caused extensive damage to M.D. Wharlf. M.S. sued the af for negligence. It was found as a fact that it was foreseeable for oil on water to catch fire. It was also found that some damages were caused to M.D. Wharlf. The trial Court held the af was liable on the decision of re-polmis and held the af liable.  The privy council however held that the af was not liable because it was not reasonably foreseeable that such a damage will occur. The damage for fire was not reasonable foreseeable. The privy council mentioned that the RE-Polimis was no longer good law. And prompted out that it will be illogical to apply different tests to the issue of duty of care and that of remoteness of damage.

When this test is applied it is evidence that the differences will only be liable for such damages that can be foreseen. The wagon mould case had been applied in various cases.

Hughes v Lord Advocate (1963) AC 838. A man hole in Edinburg Street was opened under statutory powers for the purpose of manetiaing underground telephone equipment. It was covered with a flut and in the evening, left by the workman unguarded but surrounded by warning paraffin . an 8 years old boy entered the tent and knocked and towered one the the lamp into the hole. Na explosion occurred amusing him to fall into the hole and severely burnt.

Held: that the workman were a breach of duty of care to safe-guard the boy against the type of occurrence which arising from a known source of danger. The lamp was reasonably foreseeable that source of danger acted man unpredictable way.

Doughty v Turner Manufacturing Coy. (1964) 1 QB 508. The af placed over a  heat treatment bath containing cover sodium cyaride as a were hot molten liquid. The def employee carelessly dislodged this cover so that it showered his bath. The molten liquid exploded, emptied from the bath and damaged the pf workman nearly. Although it was foreseeable that damage by splashing would require soft from dislodging the cover. It was not foreseeable what an explosion would ensued Held: the afs were held liable, even though the kind of harm, damage by burning was foreseeable. They would have been liable for damage by splashing; the risk of damage by explosion was not foreseeable.

See Tremain v. Pike (1969) 3 A.E. R 1303. Here the damage suffered by the fp was unforseable. The pf suffered wills disease which was contacted through rat urine. The pf therefore escaped liability.

There is one area which however was not effected by the Wagon Mound, that area is the “Eggs Shells Skulls Personality” i.e. where a person suffered an unusual kind of peculiar weakness. The E-Polemis case is the only one that can apply. In this case the court will not apply the reasonable foresight test. This means that you  take your victim as you find it.

See Smith V. Leech Brain & Co. (1962)2 QB 405. The Judge in the case say that it was obvious that the Privy Council could not have intended their decision in the wagon mound to apply to the decision in Egg Shell Cases and that this area is still governed by Re-Polimis decision. Here a Burn was negligently inflicted on the pf lips. This developed into cancer and killed the man 2 years later. It was found that the man’s lip before the burn was already in a pre-malgnant state, but the burn merely made the cancer to develop quicker, the pf were nontheless held liable because according to the law he must take his victim as he found him Malcom v Broad (1970) 3 A. E. R 50.

Robbinson v Post Office(1974) 1 WLR 1176. The pf was injured by the  negligence of the df. The pf was taken to a hospital were anti-tatanus syrup was administered to him by a Doctor. Unfortunately, the pf was allegic to that injection and suffered brain damage. He still sued the df for that damage and the question was that whether the af was liable offered other people takes it without any problem. It was held that the af was liable. He must take his victim as he find him, since it was his action that brought the pf into that state and he will be liable for any reaction by the pf. In Smith and Each Brain Co. it was held that the privy Council did not mean that the wagon mound case affects egg shell skull personality, when they said Re-Polemis is no longer a good law.

Novus Causa

The inter: The principle states that the df were not be liable for damages resulting from intervening factor. The handling of Nova Causa under the direct consequences test lead to the definition being liable for all the direct consequences of the df action until a new intervening event breads the chair of causation. The handling of the nova causa include the wagon mound posses the question whether it intervening event was foreseeable, if it was, it follows that the chair of causation is not broken and the df were still be liable for the damage. The effect of a successful plea of nova causa is to render the df not liable for the alleged damage. Where however the pleas fail, the df will continue to be liable for the injury. Stansaby v Trowunmi (1948) 2 KB 48.

Wieland v Cereals Lord Carpet (1969) 3 All ER 1006. The pf was injured by the negligence of the df as a result of the injury the pf had to wear a collar all the time and this made it difficult for her to adjust his spectacle, she had a fail and substained further injuries and sued the df for this first injury. The df argued that the fall was an intervening force for which he should not be held responsible but the Co not had that the fall and injury was attribute to the original negligence of the df and the this was a foreseeable consequence of the former injury and therefore there has not been an intervening event breaking the chain of causation contrast. See Melon v Holland (1969) 3 AER 62

The pf was injured by the df negligence as a result of the injury his left leg sometimes gave way. He went to view a home with his wife, brother-in-law and like daughter. He tried to descend stairs without hand rails and holding his little daughter and jumped to avoid a fall and thereby badly fracturing his ankle. He claimed damages from the df for this further injury but the Court held that the pf’s action was unreasonable in that knowing his condition his condition he failed to seek the assistance of his wife and brother-in-law while desending. Consequently, there has been a new intervention breaking the chain of causation and the df will not be liable. See Crossley v Rawlingson (1981) 3 AER 674

The df was driving a lorry when the tarpaulin in his lorry caught fire. He stopped about a two yards from a petrol house. A petrol man picked a fire-extinguisher and ran towards the lorry and was injured before he got there. His action against the df failed because although the df foresaw that people will come and rescue, he did not foresee injury on the way and consequently the claiming of causation is broken and the df will not be liable for injury. See Knightly v. John (1982) 1 AER 351

Accident happened near the exit of a tunnel carrying one way traffic. The Policeman on duty realizing that he had forgotten to close the turnel to incoming traffic ordered two inspector to go and close the turnel. The two officers that rode back against the outcoming traffic. Both the inspectore and the pf acted contrary to laid down police standing order in ordering and carrying out the order. The pf claimed demages from the df. It was held inter alia the not df the imspectore and the chief constable. The accepted negligence but claimed that also John Manga v Drew . (1970) NNLR 62

Held: the amputation of the pf leg was necessitated by the infection picked up during the interval into the pf self discharge from hospital against expert medical advice and his readmission into another hospital and therefore the df will not be liable for eht injury which be come not reasonably have foreseen, there was a break in the chain of causation Ekwo v Enechuchkwu 14 WACA 512

Held:- The Chair of Causation was not broken when the pf refused to be taken to a regular doctor where but demanded to be taken to a native doctor where he picked up an infection resulting into amputation of his finger, this was because of the  wide spread belief in native doctors in Nigeria especially in mending broken bones and where the person is an illiterate.

PROOF OF NEGLIGENCE: RES IPSA LOQUITOR

Scott v London and st Katherine Cockes (1855) 3 H of L 596. The pf a custom officer was passing through the door of the df warehouse when 6 bags of sugar fell on him. The judge of first instance directed a discharge verdict for the df on the ground of lack of negligence, the court of Appeal ordered a retrial and if was in that case that the rule “res ipsa loquitor was formulated.

Earl C. J state as follows:

The Appeal Court ordered a retrial and it was that case that the maxim or rule Res Ipasa loquitor was formulated. Earl C. J, Stated as follows:

There must be reasonable evidence of negligence but where the thing is shown to be under the management of the servant and the accident in such as in the ordinary course of thing does not happen if those who have the mearging use proper care, it afford reasonable evidence in the absence of explanation by the df that the accident arose from the wants of care. The statement above two problem;

• When does the doctrine applies
• What is the effect when it is applied

Regarding the first one it appears that 3 condition must be fortified for res ipsa loquitor to apply. The facts relating to the accident must not be known, there must be amasement of explanation of the accident. Once the of the accident are known then res ipsa loquitor fail or thing the pf have to prove his care as in the ordinary care of negligence. See Barkway v SmithWales Transport Co. Ltd (1950) 1 All  ER 392.

In that care the pf was in a vehicle managed by the df when the namely would to the wrong side and fail over and the pf was injured. It was found that there was a defect in one of the tyres and they if the df had co-operated a proper system of checking vehicle that defect might whether res ipsa loquitor apply. The Court held it does not be the facts are known. See Anichebe v Oyekwe (1985) NWLR 100. There a lorry being driven by the df crushed the brother of the pf. The df claimed that the accident happen the ilbrat in lorry was loose and therefore broken and that he was unable to help the accident from occurring to avoid the accident that happened. Although the Court held that there was an explanation. By the df it was not sufficient to or ra the inference of negligence raised by the happen of the accident therefore res ipasa loquitor apply and the df was held liable. See Okeke v. Obidife (1985) 1 All NLR 50.

Oliya v. Osasami (1969-71) WNLR 264

The pf was there injured when a Grand being operated by the several of the df fail on him. The df offered no explanation as to why the train fail without negligence on their path and it was held that res ipsa loquitor apply. They were held liable.

Jacob Akintola (1974) 6 CACJ 601. It was held that res ipsa loquitore apply. The pf wife was killed in a motor accident. The pf was not at the scene of accident to narrate what happen and no witness were called to say what happen. The Court held tht the doctrine apply only where there is some evidence from which negligence may be inferred. Consequently where there is no evidence from which negligence may be presume. Res ipsa loquitor will not apply. The pf was driving his care on one side of a dual carriage road at Agodi Ibadan. The tyre of a bus driven on the other side of the road brushed and he collided with the care of the pf on the other side of the road. The driver of the bus plead inevitability of accident but this could not obviate the doctrine of res ipsa loquitor as he was held liable.

Kuti V Gbodo (1962) N MLR 419. The pf was injured when the lorry in which he was travelling from Oloto to Ijebu-ode skidded on a wet road, crushed into a pillar of a bridge and overturned. The judge held that rtes ipsa loquitor applies this was affirmed by the Supreme Court.

Esan v. London & North Eastern Railway ((1944) 2 KB 421. A child, aged 4 years fell down in the carrier of the train belonging to the df while the train was in motion and injured and was injured. There being no evidence how the door was opened. Held, the mere fact that the door was opened was not of itself prima facie evidence of negligence against the Railway Co. The trial Justice said it is impossible to say the door of the train are continuous.

CONCLUSION

Negligence must be proof by whoever the three elements i.e. Duty of Care, Breach of Duty of Care and Damages (Injury) must be established. In the course of trial, however the burden of proof may shift to the defendant either to prove that the was not negligent or that the bore no duty.

Sometimes, the facts are over-whelming against the defendant he alone can explain the circumstances of the negligent act. In such a situation the plea of Res Ipsa Ioquitor “the thing speaks for itself” – will be made.

SUMMARY

In this unit, we learnt about

1. Duty of care
2. Breach of the duty of care
3. Standard of Care
4. Damage (injury) resulting from the breach of duty of care and the consequences that flows from the breach of the duty of

TUTOR MARKED ASSIGNMENT

What are the elements of negligence how are they established

REFERENCES/FURTHER READINGS

1. Bodunde Bankole Tort: Law of Wrongful Conduct: Lipservice Punishment (1998),
2. Fidelis Nwadalo: the Criminal Procedure of the Southern States of Nigeria, Mij Publisher, Ltd, Lagos (1996).
3. John G. Fleming: The Law of Torts (1977), The Law Books Co. Ltd publisher, London. Sweet &
4. Street: The Law of Torts Sweet & Maxwell (1977), London
5. KODILINYE & Oluwole Aluko: Nigeria Law of Torts. Spectrum Law Publishers, 1999.

: The Criminal Procedure of the Northern States of Nigeria.