NEGLIGENCE

By Amaka Ezeno, MCLArb,

It is the law of God that a man should love his neighbour. Quite contrarily, the law of man does not necessarily require that we should love, but that we should not cause harm to another. Negligence is one of the many civil wrongs with a considerable number of suits in our courts.

Interestingly, many persons do not yet know that they have a legal right in certain situations where they could have a case in negligence. According to Kodilinye, negligence is the breach of a legal duty to take care which results in damage undesired by the defendant to the plaintiff.

In other words, it is the failure to take appropriate care expected to be exercised in given or specified circumstances. According to Lord Wright, “In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owed.”

To succeed in an action for negligence, the plaintiff must establish the following elements:

1. A duty of care owed by the defendant to the plaintiff;
2. Breach of that duty by the defendant; and
3. Damage to the plaintiff resulting from the breach.

A duty of care owed by the defendant to the plaintiff

The first question to be determined in any action for negligence is whether the defendant owed a duty of care to the plaintiff.

The rule is that a duty of care is owed in a circumstance where it is foreseeable that the plaintiff will be harmed if the defendant does not exercise due care. Lord Atkin laid down this principle in the celebrated case of Donoghue v. Stevenson. His lordship declared that,

The rule that you are to love your neighbour becomes in law, ‘you must not injure your neighbour’; and the lawyer’s question, ‘Who is my neighbour?’ receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

Who, then in law is my neighbour? The answer seems to be- persons who are so closely and directly affected by my acts that I ought reasonably to have them in contemplations as being affected when I am directing my mind to the acts or omissions which are called in question.”

There are instances where it is well established that a duty of care exists. They include:

1. The driver of a car on the road owes a duty of care to other road users.
2. The occupier of a premises owes a duty of care to lawful visitors to ensure that the premises are reasonably safe.
3. A manufacturer of goods owes a duty of care to consumers to ensure that the goods are free from harmful defects, etc.

Breach of that duty by the defendant

The next task after deciding the existence of duty of care is to see if the duty has been breached by the defendant.  To solve this problem, the court considers whether a reasonable man in the defendant’s position would have acted as the defendant did. To this end, the risk factors are employed thus.

1. The likelihood of harm: the greater likelihood that the defendant’s conduct will cause harm, the greater the amount of caution required of him. In the words of Lord Wright, “The degree of care which the duty involves must be proportionate to the degree of risk involved if the duty of care should not be fulfilled.”
2. The seriousness of the injury that is risked: the gravity of the consequences if an accident were to occur must also be considered.
3. The importance or utility of the defendant’s activity: the social value of a defendant’s conduct may justify his exposing others to the risks. For instance, the driver of an ambulance answering an emergency is entitled to move in a very high speed and take some traffic risks which would not be allowed or justifiable for an ordinary road user.
4. The cost and practicability of measures to avoid the harm: this question borders on how costly and practicable it would have been for the defendant to have taken precautions to avoid or reduce the risk, for “in every case of foreseeable risk, it is a matter of balancing the risk against the measures necessary to eliminate it.” In Latimar v. A.E.C. Ltd, a factory floor had become slippery, after the occupiers did everything possible to make the floor safe, a workman slipped on it and sustained injuries. The court held that the occupiers had not been negligent. The only other possible step they could have taken would have been to close the factory, and the risk of harm created by the slippery floor was not in the opinion of the court, so great as to require such a costly and drastic step.

Damage to the plaintiff resulting from the breach

The plaintiff must further show that the breach of duty owed him by the defendant caused him damage. A useful test often employed in determining whether the plaintiff has suffered damages because of the defendant’s negligence is the ‘but-for’ test, that is, if the damage would have happened but for the defendant’s negligent act. If yes, then he is liable.

Again, the harm occasioned must have been reasonably foreseeable for the defendant to be liable.

Defences to the tort of negligence

1. Contributory negligence: this means that the plaintiff’s negligence contributed in bringing about the injury he has suffered. For example, where he takes a lift in a car driven by a man whom he knows to be under the influence of alcohol, or in a car which he knows to have defective brakes. It is the failure on the part of the person injured to take reasonable care of himself in his own interest.
2. Volenti non fit injuria: literally, this means “no injury is done to one who consents.” In other words, no person can enforce a right which he has voluntarily waived. Consent to actions occasioning damage due to negligence could be given by an express contract or implied consent.

An important drawback on the defence of volenti non fit injuria is that mere knowledge of the existence of danger does not constitute consent to run the risk of it, for the question is not whether he knew of the danger but whether he in fact agreed to run the risk. See Smith v. Baker (1891) A.C. 325.