Breach of Duty of Care in the Tort of Negligence

An essay by Ola Babalola

Negligence as defined by Alderson in Blyth v Birmingham Waterworks Co.

(1856) is the omission to do something which a reasonable man guided upon those

considerations which normally regulate human affairs would do or doing something

which a reasonable man would not do. Briefly put, it is the term used to designate a

failure to exercise due care, resulting in injury to another, and for which an action for

money damages may be brought. In law, three elements have to be gone through

before one can establish a case of negligence. These are

(1) Duty of Care owed by the defendant to the plaintiff,

(2) Breach of that duty,

(3) Damages resulting as a breach of that duty.

The duty of care is obvious before all reasonable men. We may then say that

the driver of a motor car on the highway owes a duty of care to other road users

motorists or pedestrians not to be reckless and carefree.The owner of a chattel owes a

duty of care to ensure that his chattel is not a menace or a nuisance to persons around

him. The occpier of a premises owes a similar duty to make certain that his premises

are duly safe for lawful visitors. An employer of workman in a factory owes a duty of

care to provide adequate equipment and a safe system of working.A manufacturer

owes a duty of care to consumers to ensure that the goods are free from harmful

defects.Also,as decided in the case of Hedley Byrne & Co. Ltd. V. Heller and Partners

Ltd.(1964)A.C.465;a new duty of care was recognized to avoid making careless mis-

statements which might cause financial loss to persons reasonably relying on them.

Before one can sue for damages in negligence, it must first be established that a duty

of care is owed. If there is no duty of care, there is no case. The duty of care is such

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that when X is in a position or is near to Y, he owes a duty to Y to do conduct himself

in a manner that will not intentionally harm or injure Y. Accordingly, a nephew

cannot sue his uncle for negligence for failing to get him admission into the university

where he is a don thereby causing him some trauma on the grounds of breach of duty

of care. This is unreasonable. This duty is emphasized in Donoghue v Stevenson and

Heaven v Pender that a duty of care is owed by a person to people who are closely,

directly and immediately affected by acts or omissions done by this person. Lord

Atkin asked the question in Donoghue v Stevenson ‘who is my neighbour?’ and he

replied that his neighbour were the persons whom he ought to be thinking about as

likely to be affected by his acts. In the case of Bourhill v Young, where a motor-

cyclist driving negligently past a tram car and in doing so colliding with a motor car,

the resultant sound of the collision was heard by a woman about forty-five feet and

she subsequently sued for damages claiming it had caused her a nervous shock. It was

held that she could not recover because she was nowhere near the immediate vicinity

of the accident and there was no way the cyclist could have anticipated she would be

affected by the incident. The duty of care is not owed to the whole world. As a result,

I cannot sue the Super Eagles of Nigeria for failing to qualify for the FIFA World Cup

and inadvertently giving me a nervous breakdown.

In the case of Faruggia v G.W.R where a lorry carrying a heavy container

passed under a bridge that was so low the container was thrown off. In falling, it

injured the plaintiff who unknown to the driver of the lorry had been hitch-hiking and

was thus trespassing on the vehicle. None the less, it was held that the defendant was

liable because a duty of care was owed not directly to the plaintiff as a trespasser but

to any person or persons who at the moment the danger occurred were in the vicinity.

In King v Philips, the doctrine of the duty of care not being owed to the whole world

was also emphasized by Lord Denning where a taxi collided with a boy on a tricycle

causing minimal damage. The mother who was almost a hundred meters away had a

nervous shock when she heard a son scream and subsequently sued. It was held that

she could not recover because her suffering from a nervous shock could not be

immediately foreseen.

In the Nigerian case of Ande v Gabriel (1975) 12 CCHCJ, 2143 where the

plaintiff suffered several injuries and damage to his vehicle as a result of the

defendant’s driving, it was held that where there is a collision, the driver on the wrong

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side of the road in general violation of the highway code is responsible for failing to

exercise a duty of care. Case was decided in favour of the plaintiff.

In D.A Ikoku v Pioneer Metal products Co. ltd, (1975) 12 CCHCJ, 2231 the

appellant sued for damages claiming she had suffered loss and incurred expenses

following the escape of dangerous and poisonous chemicals leaking into her well

from the defendants factory. Domestic livestock she kept in her premises had perished

as a result of the negligence of the defendants and she had also had to refund money

her students paid her due to her inability to provide healthy and drinkable water.

Though the case was awarded against her because she had prior to the suit be

compensated (though not adequately), it was held that any person who for his own

purposes brings on to the land which he occupies and keeps anything likely to do

mischief if it escapes must keep it at his own peril and if he does not do so is prima

facie answerable for all the damages which is the consequence upon its escape.

In the American case of Palsgraf v. Long Island Rail Road Co, the judge

decided that the defendant, a railway was not liable for an injury suffered by a distant

bystander. The plaintiff, Palsgraf, was hit by scales that fell on her as she waited on a

train platform. A train conductor had run to help a man into a departing train. The

man was carrying a package as he jogged to jump in the train door. The package had

fireworks in it. The conductor mishandled the passenger or his package, causing the

package to fall. The fireworks slipped and exploded on the ground causing

shockwaves to travel through the platform. As a consequence, the scales fell and the

plaintiff was injured. She sued the train company who employed the conductor for

negligence. The defendant train company argued it should not be liable as a matter of

law, because despite the fact that they employed the employee, who was negligent, his

negligence was too remote from the plaintiff’s injury. On appeal, the court agreed.

Once a duty of care has been established, what comes next is to verify if this

duty has been breached. Since negligence is falling below the standard of the

reasonable man, the factors that determines the breach are

1. Likelihood of harm

2. Practicability of Precautions taken

3. Seriousness of injury risked

4. Social importance of the risk

Likelihood of harm

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When considering degree of risk, one is also considering the likelihood that harm will

occur. According to Lord Wright, ‘the degree of care which the duty involves must be

proportional to the risk involved if the duty of care should not be fulfilled’. Lord

Denning said ‘In every case of foreseeable risk, it is a matter of balancing the risk

against the measures necessary to eliminate it.’ In the Nigerian case of Igbinovia

Orhue v National Electric Power Authority (1998) 5SCNJ 126 at 128 where the

appellant had sued the respondent for damages arising as a result of the respondent’s

negligence in passing high energised electrical wires over his house rendering his

house and the adjoining piece of land uninhabitable for human habitation and as a

result of this he and his household suffered electrical shocks whenever they came in

contact with metallic objects in the house and were consequently forced to move. It

was held in a judgment read by Onu JSC against the appellant that the house had been

made safe once it was earthed which it was so there was little likelihood of harm.

In the foreign case of Rylands v Fletcher where the defendant a contractor had made a

reservoir on his land. When the reservoir was filled, the water leaked through the

disused shaft of an old mine belonging to the appellant and flooded it. It was held

against the defendant that though the water was harmless on his own land, he must

take care that what he brought on his land should remain on his land unless it was at

his own peril then he would not be liable for a breach of duty.

In Bolton v Stone (1951) AC, 850, the appellant was hit and injured as he walked

along the road by a cricket ball that came from a cricket pitch adjacent to the road.

When the appellant contended that the respondent had been negligent for failing to

ensure that cricket balls did not escape from the ground and injure people, it was held

against the appellant the respondent had taken relative care to prevent this with the

construction of a seven foot fence and that likelihood of such occurrence was far and

few between.

Seriousness of injury risked

The seriousness of the offence should it occur is one that should also be taken

into consideration. If ordinarily the occurrence of the breach does not result in grave

consequences then it is likely that the tortfeasor may not be so liable but if it is one

that necessitates his taking extra due care and he turns out to be negligent then he will.

Therefore, if X owns a bar and hires Y an alcoholic to manage his bar knowing fully

well that Y is an alcoholic and Y subsequently drinks himself to stupor and damages

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his kidney, he will have a case against X. It will be heard that X having a knowledge

of Y’s habit should have known better than to put him in such a position. Extra

precaution must be taken if there is a likelihood that the risk involved is greater than

normal risk. In Read v Lyons, the plaintiff was in a factory that manufactured

explosives and while he was there, there was an explosion upon which the plaintiff

sued for negligence. It was held that in an explosives factory, such occurrences were

likely to happen because of the nature of the work being done and that extra

precautions would have always been taken. In this regard, a police man in hot pursuit

of a criminal and running after him into a crowded market place has extra duty not to

shoot at random into the crowd.

In North western Utilities v London Guarantee, the respondent was held liable for

not adequately protecting a leaking gas line that was passed under a residential area

though the line had been put there by statutory provisions. It was held that gas being a

dangerous commodity, it is the defendants’ duty to watch over their operations and

guide against such negligence because it could result in a great amount of damage.

Knowledge of an individual state also determines what precautions have to be

taken in minimising risk. When deciding what precautions have to be taken to

minimize a perceived risk, how serious was the injury likely to be if the accident

occurs or the gravity of consequences if an accident were to occcur must also be taken

into account.An example of a breach of the duty of care is in the case of Paris V.

Stepney Borough Council(1951)A.C.367. In this case, the plaintiff worked as a

mechanic for the defendants. . The defendant knowing quite well that the plaintiff had

only one functioning eye did not provide him with goggles for his work.While he was

attempting to remove a part from underneath a vehicle,a piece of metal flew into his

good eye and he got blind. The presiding judge held that the defendant was negligent

in not providing plaintiff with goggles,since he must be aware of the gravity of the

consequences if he were to suffer a damage to his one good eye.’

Practicability of Precautions taken

This explains how practicable the risk to be taken is. If the measure of risk to be

taken is insignificant in magnitude compared to the cost and viability or feasibility of

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process, then a risk may be ignored. The magnitude of the circumstance must be

greater than the risk involved for this to be the opposite. Therefore, one cannot claim

bad headlights as an excuse for not rushing an accident victim to the nearest hospital.

On the other hand, one cannot shut down a factory producing utilities just because the

floors are slippery neither can one cut of his head just to avoid a headache. If the cost

of eliminating the foreseeable risk is done at a greater expense then the risk is

negligible. As said before, one cannot fire chaotically into a crowd just to catch one

thief. The risk of allowing him to escape is not as costly as killing innocent people. It

is better to let the thief escape. According to Lord Denning in Watts v Hertfordshire,

‘It is always a question of balancing the risk against the end…there is a considerable

difference between commercial end to make profit and human end to save life or

limb’.

In the case Latimer v A.E.C ltd where after a flood, the flood of a factory had

become very slippery and the owners of the factory had done everything to make it

safe but when one of their employees slipped on it, he sued for negligence. It was held

that ‘in dealing with the suggestion that a factory should have been closed down

because the floor was flooded and in patches slippery; the evidence I have before me

suggests that the degree of risk was too small to justify, let alone require closing it

down.’

Social Importance of the activity involved

In mentioning social importance of the activity involved one means that there

are some specific duties which in the course of being performed negate whatever risk

may occur or is likely to occur. It the activity is of paramount social value and is of

immense benefit to society at large then whatsoever risk may result in the

performance of such an activity or a duty is negligible. Thus an ambulance rushing

someone to the hospital is expected to violate some traffic regulations.

In Watt v Hertfordshire, a fireman rushing to the site of a fire was injured by a

jack in the fire truck which was not attached to anything when the driver of the truck

suddenly applied the brakes. Though it was mentioned that the fire company was

under a duty to take due care in the furtherance of their activity and to avoid exposing

their personnel to unnecessary risks, it was held that they were not liable on the

ground that in saving life they were justified in taking greater risks than normally

expected if they had been involved in normal commercial business. If the defendant’s

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activity has great social importance, he may be justified in exposing others to risk

which would normally be unjustifiable.The purpose to be served if adjudged

sufficiently important justifies the neccesity higher risks.

If a defendant’s action served a socially useful purpose then he may be excused

from the risks he has taken.

Before one can claim a breach of the duty of care, all the above must have been

conclusively exhausted. If all the above requirements are not met, then one cannot

have a valid case. A viably established case of breach of negligence must contain the

above or one has no case.

References:

1. Kodilinye: Law of Tort (first edition, 1980)

2. R. Bingham : Modern Cases on Negligence (third edition, 1978)

3. The Common Law Library: Charlesworth on Negligence

4. Supreme Court of Nigeria Judgments (2002) 12 SCNJ

5. Supreme Court of Nigeria Judgments (1998) 12 SCNJ

6. Nigerian Weekly Law Reports (1992) 7NWLR

7. Selected Judgments of the High court of Lagos State (1975) 12

CCHCJ, 2231

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