The area to be explored is general negligence
In the case of ALLASAN KOTOKOLI V MORO HAUSA Edusei j stated that for an action of negligence to succeed the plaintiff must prove that there was in existence a duty owed to him, a breach of that duty by the defendant and injury resulting from the breach.
1. Duty of Care
Definition of duty of care- in DERRY V PEAK it was stated that a duty of care arises when there was such a proximity between persons or properties of parties that absence of care might cause damage by one to the other
A duty of care may arise under two main situations. They are precedent situations and novel situations
Precedence situations
–Rescue–
The rule is that if by the negligent act of the defendant a person is put in peril the defendant owes a duty of care to anyone who was reasonably foreseeable to come to the rescue of those in peril-CHADWICK V BTC. Two trains collided and the plf who had once suffered psycho-neurotic symptoms went to rescue and later suffered anxiety neurosis. It was held that they owed a duty of care to the plf as it was reasonably foreseeable that in such an accident someone would come to the rescue
Must not act wantonly of show disregard for own life-MORRIS IN BAKER V T E HOPKINS
A busybody cannot recover under this action-CUTLER V UNITED DIARIES. The plf was injured when he entered a field to calm some horses. There was no one in danger. It was held that the plf was a busybody and that with no one in danger he volunteered to the horses at his own risk
–Nervous shock–
Definition of nervous shock- reaction to an immediate and horrifying impact resulting in some recognizable psychiatric illness. This is serious mental disturbance outside the range of normal human experience and not merely the ordinary emotions of anxiety, grief or fear-
PAGE V SMITH: The claimant had suffered from ME over a period of time and was in recovery when he was involved in a minor car accident due to the defendant’s negligence. The claimant was not physically injured in the collision but the incident triggered his ME and had become chronic and permanent so that he was unable to return to his job as a teacher. A defendant, who is under a duty to care to the plaintiff, whether as primary or secondary victim, is not liable for damages of nervous shock unless the shock results in some recognized psychiatric illness. It is no answer that the plaintiff was predisposed to psychiatric illness. Nor is it relevant that the illness takes a rare form or is of unusual severity
Sorrow and grief are not recoverable-HINZ V BERRY
Class of persons-They have close relationship with the injured person-MCLOUGHLIN V O’BRIAN, ALCOCK V CHIEF CONSTABLE OF SOUTH YORKSHIRE-lord wilberforce
Proximity in time and space-MCLOUGHLIN V O’BRIAN
Means by which such shock was caused-must be through sight or hearing or immediate aftermath and not communication by a third person-MCLOUGHLIN V OBRIAN
–Pecuniary loss–
Duty of care exists where the economic loss was reasonably foreseeable from the defendant’s act –HEDLEY BYRNE V HELLER & PARTNERS
Test is if it was reasonably foreseeable and direct-SCM V WHITTAL-lord denning-except where such loss is the immediate consequence of the negligence, SPARTAN STEEL AND ALLOY V MARTIN AND CO.
SCM V WHITTAL– The defendants, building contractors, were rebuilding a boundary wall when a workman damaged an electric cable owned by the electricity board which ran alongside the road. The cable supplied electric current to several factories in the road in the plaintiffs’ typewriter factory. Plaintiffs alleged that the defendants had negligently damaged the cable causing a seven hour power failure in their factory and resulting in damage to materials, machines and consequential loss of production. Held-the contractors were working near an electric cable which they knew supplied electricity to the whole neighborhood. They knew that if they damaged the cable the current would be cut of and damage would be suffered by the factory owners and so they owed a duty of care. SPARTAN STEEL AND ALLOY V MARTIN AND CO
A duty arises where there is damage to person or property-DENNING IN SCM V WHITTAL
If the loss is consequent upon injury to person or property- ELECTROCHROME V WELSH PLASTICS. The def’s servant negligently drove into a fire hydrant and damaged it. This resulted in the cut off of water supply to the plf’s factory. The plf lost a day’s work in their factory. It was held that there was no injury as the duty held no to damage the fire hydrant was owed to the owner and not to the plf who were not the owners.
–Novel situation–
The loss must have been reasonable foreseeable.
DONOGHUE V STEVENSON. Mrs Donoghue went to a cafe with a friend. The friend brought her a bottle of ginger beer and an ice cream. The ginger beer came in an opaque bottle so that the contents could not be seen. Mrs Donoghue poured half the contents of the bottle over her ice cream and also drank some from the bottle. After eating part of the ice cream, she then poured the remaining contents of the bottle over the ice cream and a decomposed snail emerged from the bottle. Mrs Donoghue suffered personal injury as a result. She commenced a claim against the manufacturer of the ginger beer.
Lord Atkin held 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 act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
There must have been a relationship of proximity between the parties-DONOGHUE V STEVENSON
It must be fair, just and reasonable that the law impose a duty-
CAPARO INDUSTRIES V DICKMAN. A company called Fidelity plc, manufacturers of electrical equipment, was the target of a takeover by Caparo Industries plc. Fidelity was not doing well. In March 1984 Fidelity had issued a profit warning, which had halved its share price. In May 1984 Fidelity’s directors made a preliminary announcement in its annual profits for the year up to March. This confirmed the position was bad. The share price fell again. At this point Caparo had begun buying up shares in large numbers. In June 1984 the annual accounts, which were done with the help of the accountant Dickman, were issued to the shareholders, which now included Caparo. Caparo reached a shareholding of 29.9% of the company, at which point it made a general offer for the remaining shares, as the City Code’s rules on takeovers required. But once it had control, Caparo found that Fidelity’s accounts were in an even worse state than had been revealed by the directors or the auditors. It sued Dickman for negligence in preparing the accounts and sought to recover its losses. This was the difference in value between the company as it had and what it would have had if the accounts had been accurate. Lord bridge held that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other
2. Breach of duty
This is measured by the standards of a reasonable man-MENLOVE V VAUGHAN
Likelihood of injury/foreseeability of harm-
BOLTON V STONE. The plf was hit and injured by a cricket player on a cricket ground which was surrounded by a seven feet fence. There was evidence that over a period of 28 years only 6 balls have made it over the fence. It was held that a man is not in breach of his duty in respect to an injury which was so unlikely to happen as would make the man provide against it
Magnitude/seriousness of the risk–
PARIS V STEPNEY BOROUGH COUNCIL. The plaintiff, a one-eyed man employed by the defendants, was working in conditions involving some risk of eye injury, but the likelihood of injury was not sufficient to call upon the defendants to provide goggles to a normal two-eyed workman. In the case of the plaintiff, however goggles should have been provided for, whereas the risk to a two-eyed man was of the loss of one eye, the plaintiff risked the much greater injury of total blindness. It was held that because the risk of greater injury to the employee ne eye, the employer was in breach of duty in not providing protection measures
The importance or social value of the activity engaged in or the end to be achieved-DABORN V BATH TRAMWAY. The plaintiff was driving an ambulance with a left-hand drive and with one driving mirror on the left-hand side attached to the windscreen. The ambulance was completely shut in at the back so that the plaintiff was unable to see anything close behind her. The defendant driver negligently tried to overtake her when she signaled with her left hand that she was to turn right. The driver of the motor bus collided with the plaintiff’s ambulance and the plaintiff sustained severe injuries. She sued the driver and his employers. It was held that in measuring due care one must balance the risk against the end to be served
Expenses involved in the safety measures as against the risk-LATIMER V AEC. A rainstorm caused the def’s factory to be flooded and the floor covered with an oily cooling mixture. Sawdust was used to cover the floor but it got finished and so some areas were left untreated. The plf was working in an untreated area and fell and injured his ankle while attempting to load a heavy barrel. It was held that the def had done all that a reasonable employer was expected to do having regard to the degree of risk
Compliance with the general and approved practice. However the approved practice itself must be reasonable- ROE V MINISTER OF HEALTH. An anesthetic was administered to the plf by the def who was a medical doctor. The anesthetic was kept glass ampoule in phenol. The phenol unfortunately seeped into the bottle through invisible cracks. It contaminated the anesthetic resulting in the plf becoming permanently paralyzed. The doctor had visible examined the anesthetic before administering it. It was held that that was the approved practice at the time and so the def was not negligent as he took all the precautions that a person in his position would have done at the time
What is Res Ipsa Loquitor?
Res Ipsa Loquitor-the thing speaks for itself
The thing causing damage must be under the management/control of the defendant or his servants-UDE V BONJUT. The def left his house to his gf and others and travelled. Those in charge left the tap running and water overflowed and damaged the plf’s goods downstairs. It was held that he was liable as the place was in occupation for which he was responsible.
The accident is such that in the ordinary course of things it does not happen when care is taken-SCOTT V LONDON ST KATHERINE DOCKS
Absence of explanation. Explanation must be exact and show that there was no breach of duty-MBADIWE V YAYA. The plf parked his car on the left side of a road. The def’s car ran into the rear of it. The def explained that the plf’s car was badly parked and that he would have hit the gate had he not hit the car. It was held that the explanation given was unreasonable and that his statement meant that there was more space to pass but he chose to hit the car.
The plf must not know of the cause of the accident-BARKAWAY V SOUTH WALES TRANSPORT. The appellant’s husband was killed while traveling in the defendants’ omnibus which veered across the road when the offside front tyre burst and fell over an embarkment. The cause of the accident was a defect in the tyre. It was held that if sufficient facts are known as to the cause of the accident, res ipsa does not apply and the onus of roof was on the plf to prove negligence.
3. Resultant damage
Causation- ‘but for’ test- BARNET V. CHELSEA AND KENSINGTON HOSPITAL MANAGEMENT COMMITTEE. A night watchman was taken to a hospital complaining of vomiting. The duty casualty officer refused to see him; and told him to go home and get his own doctor. A few hours later he died of arsenic poisoning. It was held that although the doctor was negligent he was not liable as the death was not a result of the negligence
Remoteness of damage-two schools of thought
liability for all direct consequences-RE POLEMIS
This is usually applied to personal injury cases-SMITH V LEECH BRAIN
the deceased was employed as a laborer and galvanizer. He got a burn on his lips as a result of contact with molten metal. He burn was treated but later developed into cancer. This was because he had a pre-malignant condition resulting from contact with tar. The deceased died of cancer. The court held that the burn was the promoting agency of cancer in the tissues which already had a pre-malignant condition. The question was whether the employers would have foreseen the burn. If a man is negligently run over… it is no answer to the sufferer’s claim for damages that he would have suffered less injury… if he had not had an unusually thin skull or an unusually weak heart
Liability for only foreseeable consequences-WAGON MOUND
Novus actus interveniens
If there is an intervening event it breaks the chain of causation. However the chain of causation is not broken if the thing that happened is the very likely thin to happen but for the negligence of the defendant-ADU V GLIKSTEN. The plaintiff’s vehicle was damaged as a result of an accident which was clearly caused by the negligence of the second defendant, servant of the first defendant. The car had been parked when the defendant rammed into it. The plaintiff’s driver then in charge of the vehicle, left it unattended on the high road. When he returned to it the next day with his master, the plaintiff herein, he found that several parts had been stolen from the vehicle, with the result that it was uneconomic to repair it. When asked why he did not arrange for a watchman to watch the vehicle in his absence he said he “was perplexed at the sight of the accident and rushed to inform the lorry owner’’. It was held that the driver’s answer indicates that he was thrown into a dilemma as a result of the accident. He took a course which though not unreasonable in the circumstances turned out to be less than prudent. But as it was the defendants’ negligence which put him in that dilemma they are liable for the full consequences of that negligence
Elections
When a person is put in a situation where he is to choose between two evils and he elects the less dangerous alternative, the defendant is liable should any injuries occur- EKWO V ENECHUKWU. The plaintiff was a passenger in the defendant’s lorry. During the course of the journey the seat he was sitting on came out of its position due to negligent fixing by the defendant. The plaintiff fell with his right hand under the seat and broke his hand badly. The plaintiff refused to go to the hospital when the defendant offered but opted to be taken to a native doctor. The plaintiff had refused to go to the hospital because he was afraid his hand might be amputated. Some days later he was taken to the hospital suffering from a septic wound and had his arm amputated. The doctor expressed the view that if he had come to the hospital immediately his arm might have been saved. The West African court of appeal held that his belief and choice to go to the native doctor was reasonable especially with the common knowledge that a portion of the population of Nigeria held strong beliefs in native doctors. Therefore the plaintiff was not contributory negligent and so the defendant was held liable for the amputation as well.
Defences
Contributory negligence-this is when the plaintiff’s own negligent conduct in combination with that of the defendant resulted in injury to the plaintiff. In a situation like this the plaintiff is liable for his part of the contribution-part 1 of civil liability act 1963(act 176), section 1(1)
Apportionment of liability in case of contributory negligence
(1) Where a person suffers damage as the result partly of the fault of any other person and partly of the fault of that person or the fault of someone for whom that person is responsible, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering damage, but the damages recoverable shall be reduced to the extent that the Court thinks just and equitable having regard to the plaintiff’s share in the responsibility for the damage.
Contributory negligence
The plaintiff’s negligence must be in respect to the risk he exposed himself into-JONES V LIVOX QUARRIES LTD, OWENS V BRIMMELL. The plf accepted a ride from the def knowing very well that he was drunk. They had spent the night drinking. An accident occurred with the plf sustaining injuries. It was held that the plf contributed to her injury as she knew the state of the def and yet accepted the ride.
Volenti non fit injuria
This is when the plaintiff consents or exposes himself to the risk to injury-CUTLER V UNITED DIARIES. The Claimant was injured when he entered a field to calm some horses. His claim for compensation was unsuccessful as the horses presented no immediate danger to persons or property and there was no need for him to intervene. He was thus held to be volens.
It may arise when
The plaintiff agreed that the defendant was not liable
The plaintiff was guilty of contributory negligence
The plaintiff agreed to defendant conforming to a standard of care which is lower than normally required by law
It must be proven that the plaintiff voluntarily and freely with full knowledge of the risk, agreed to the conduct-GYASI V STATE GOLD CORPORATION & ANOR.
The plaintiff was an employee of the first defendants and so was the driver of the car. While negotiating a sharp curve, the driver went into the lane of the other vehicle resulting in a collision. The plaintiff sought for damages. It was contended by the defendants that the plaintiff had control of the vehicle and had allowed the manner in which the vehicle was driven that day. It was held that there was no evidence whatsoever to support the contention that the plaintiff having full knowledge of the nature and extent of the risk involved consented to it. Neither could it be said that the plaintiff was guilty of conduct which permitted the negligent manner in which the defendants’ driver drove the vehicle nor was there any evidence of acquiescence on the part of the plaintiff. Being in control of a driver in charge of a vehicle on which one was travelling required more than merely being able to tell him to reduce his speed. There must be evidence of the driver being under the complete dominion of the passenger which was not the case here
Negligence in relation to chattels
Manufacturer’s liability principle in DONOGHUE V STEVENSON-
A manufacturer of products which he sells in such a form as to show that he intends to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination and with knowledge that the absence of reasonable care in the preparation of putting up of the products will result in an injury to the consumer’s life or property owes a duty to the consumer to take that reasonable care
Manufacturer includes repairers, masons, designers, assemblers and even suppliers of articles-BROWN V COTTERILL.The defendant, a mason negligently erected a tombstone and as a result it fell on the plaintiff who was lawfully in the churchyard. It was held that he was a manufacturer and therefore liable.
Products include things used externally and internally-GRANT V AUSTRALIAN KNITTING MILLS. The plaintiff contracted dermatitis through wearing woolen underpants which had been manufactures by the defendants. The disease was caused by the excess of sulphites negligently left in the underpants by the defendant. It was held that the defendant was liable as no logical distinction could be drawn between a noxious thing taken internally and a noxious thing applied externally.
The sale of product is not limited to items given in exchange for consideration but also items such as free samples-HAWKINS V COULSDON AND PURLEY UDC-DENNING
Ultimate user is anyone foreseeably harmed by the defective product-STENNET V HANCOCK. The owner of a lorry took one of the wheels of the vehicle to a motor repairer with instructions to reassemble it. The defendant did it. While driving it the flange came off and injured the plaintiff. It was held that the plaintiff was an ultimate consumer and so by manufacturing a product negligently and resulting in injury to the plaintiff he was liable.
The test for determining whether there was no reasonable intermediate examination is whether the manufacturer contemplated that any defect will remain there at the time of their use by the plaintiff-DRANSFIELD V BRITISH INSULATED CABLES-HAWKES J.
If the consumer detects the defect but uses the product, the consumer might be held to be contributory negligent-RIMMER V LIVER POOL CITY COUNCIL
If the consumer misuses the product in an unfashionable way, the manufacturer may not be liable-ASWAN V LUPDINE
A defect may be in the design, the container, labelling or packaging-street 8th edition
In English law the burden of proof laid on the plaintiff to show absence of reasonable care-LORD MACMILLAN IN DONOGHUE V STEVENSON
Preparation and putting up-
The rule is based on the control of the production process of the product and also extend to distributors who are expected to test the product- DONOGHUE V STEVENSON. Lord Macmillan stated that it covered such negligent acts as occur in the actual manufacture of the products.
The manufacturer must be in control of the production process-LORD MACMILLAN IN DONOGHUE V STEVENSON
The injury must be to the consumer’s life or property as well as economic loss-HEDLEY BYRNE V HELLER PARTNERS
In Ghana, res ipsa loquitur applies- ABOAGYE V KUMASI BREWERY LTD. The plaintiff was drinking beer with some friends when he found a rotten palm nut in the beer. He had a funny feeling after seeing the palm nut and felt like vomiting. During the night he vomited and had frequent stools. He was seen by a doctor the next day who noted that his symptoms were due to poisoning. It was held that the fact that the nut was found in the beer raised the legal maxim res ipsa loquitur and presumed negligence of the manufactures in the preparation of the beer.