By Amaka Ezeno, MCLArb

The definition of “negligence” which has been most frequently quoted and even adopted by the Courts of our land is that given by ALDERSON, B, in BLYTA V. BIRMINGHAM WATER WORKS CO. (1856) L.R. 11 Exch. 781 where he observed: “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”

The above dictum of Alderson was given approval by the Nigerian Courts. The proposition which the plethora of authorities on the definition of the word “negligence” suggest, and which can properly be deduced from them is that whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who thinks, and must think, as a reasonable man, would at once recognize that if he does not use ordinary care and skill in his conduct with regard to those circumstances, he would by his conduct, inflict injury or danger of it to the person or property of the other, then in such circumstances,

a duty arises to use ordinary care and skill to obviate such danger. This, in my view, is a summary of the concept of “WHO IS MY NEIGHBOUR” as expounded by the House of Lords (England) in the well-known case of DONOGHUE V. STEVENSON (1932) A.C. 562.

In an action on negligence, fundamentally, for the claimant to succeed he must prove the existence of a duty of care, a breach of that duty and damages flowing from such breach of duty. See Anyah V. Imo Concorde Hotels Ltd (2002) 18 NWLR(Pt 799) 377; NPA V. Rahman Brothers Ltd (2010) LPELR 8962 and MTN Nig Communications V Sadiku (2013) LPELR 21105.

The claimant has a duty of proving on balance of probabilities the tort of negligence or the ingredients of the tort of negligence and then after giving evidence on how the accident happened, then the onus shifts on the defendant to offer an explanation as to why the accident occurred.

In a case of negligence, the plaintiff must therefore plead and prove by evidence the following:

  1. That the defendant owes him a duty of care
  2. That the defendant is in breach of that duty, and
  3. That damages has resulted as a result of the defendant’s breach

Failure to establish the aforesaid ingredients of negligence will lead to the case of the plaintiff being dismissed. In Okonji V. Njokanma (1991) 7 NWLR (Pt 202) 131, the Supreme Court held inter alia

“that it is the duty of a Court, whether of first instance or appellate to consider all the issues that have been joined by the parties and raised before it for determination. If the Court failed to do so without a valid reason, then it has certainly failed in its duty, for in our Judicial system, it is fundamental principle of administration of justice that every Court has a duty to hear, determine and resolve such questions or issues raised.

When the trial Court failed to resolve an issue raised before it, this Court can and must resolve the issue so raised. The question here is must a party who alleges negligence plead the act of negligent and give specific particulars of same? In Koya V. UBA Ltd (1997) LPELR 1711 64-65; Iguh, JSC held that: “The one issue that ought to be stressed is that a plaintiff, as a matter of law is required, in an action on negligence, to state or give particulars of negligence alleged and to recover on the negligence pleaded in those Particulars.

It is not sufficient for a plaintiff to make a blanket allegation of negligence against a defendant in a claim on negligence without giving full particulars of the items of negligence relied on as well as the duty of care owed to him by the defendant.” Coming back to the pleadings, it can be seen that paragraph 4 of the statement of claim stated that the 2nd Appellant drove the truck of the 1st Appellant negligently and knocked down the Respondent.

Paragraph 5 states that the Respondent was rushed to the hospital for treatment, Paragraph 6 disclosed that the Respondent’s left index finger was amputated and the rest of the Paragraph are about the treatment received by the Respondent at the hospital and the Appellants’ nonchalant attitude towards the health and welfare of the Respondent. Apart from the blanket allegation of negligence in paragraph 4 of the statement of claim, there is no reference to any of the requirements of the law.

The law is well settled that a plaintiff must allege in his pleading the exact duty of care the defendant owes him and the particulars of such duty and its breach must also be stated in the statement of claim in clear terms. In Susainah Trawling Vessel & Ors V. Abogun (2006) LPELR 7732 23 – 24; this Court, per Galinje, JCA (as he then was) stated that “Mere accident cannot ground an action for damages.

In order to succeed in an action for claim for negligence the plaintiff must plead and prove that the accident was as a result of the negligence of the defendant. In doing so, he must plead and prove the particulars of negligence. The said particulars to be pleaded and proved must show the circumstance of the complaint relevant to the case. In addition, the plaintiff must plead and prove by evidence 1.

That the defendant owes him a duty of care 2. That the defendant is in breach of that duty, and 3. damages has resulted as a result of the defendant’s breach.” In the present appeal, all these requirements save damages are absent in the statement of claim. The statement of claim is therefore not in compliance with the rules of pleading negligence.”

The plaintiff who is claiming damages from a defendant in negligence may also be liable for contributory negligence as one person being in fault will not dispense with another’s using ordinary care for himself/herself which will affect the amount of money he/she will be awarded in damages against the defendant. This is called contributory negligence.

The law is also very clear on the duty on any party alleging contributory negligence; the definition and nature of contributory negligence was given in the case of EVANS VS. BAKARE (1973) LPELR-1176(SC) which held thus: “Contributory negligence means that the party charged is primarily liable but that the party charging him has ‘contributed’, by his own negligence to what had eventually happened.

In Butterfield v. Forrester (1809) 11 East 60 at p. 61, Ellenborough, C.I. described the principle of contributory negligence in clear and simple language as follows: “A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he does not himself use common and ordinary caution to be in the right.

One person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff. Since 1909, the principles of contributory negligence have recognised many modifications but the essential characteristic remains the same, i.e. the party charged must be primarily liable for the negligence that caused the damage or injury.

Thus, Section 1 of the Law Reform (Contributory Negligence) Act, 1945 (8 and 9 Geo. 6 c. 28) defines contributory negligence as follows: “1 (1) Where any person suffers damage as the result partly of his own fault and partly of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such an extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage…”