AN APPRAISAL OF THE DEVELOPMENT OF THE TORT OF NEGLIGENCE IN NIGERIA.

CHAPTER TWO

GROUNDS FOR LIABILITY IN NEGLIGENCE

             2.1    Introduction:

At the early stage of the common law, the initial basis of liability was predicated on causation[1]. The Courts at that time were not concerned with fault element. The relevant issue under causation is to identify who is responsible for bringing into existence a condemnable state of affairs or to who may a particular conduct be ascribed, as soon as the Court is able to identify a person to whom the forbidden act is traceable, responsibility attaches forthwith. This state of the common law was found not only to be highly immoral, but also very dehumanizing which led to agitation for reform[2].

As social organization developed from a predominantly agricultural to a predominantly technological and urban system, and as relations of men became more and more intimate, then came sophisticated notions of fault, such as intentions and negligence,emerged as the necessary prerequisites for determining responsibility under the tort systems.

Intention is generally regarded as a state of mind. An act is said to be done intentionally, when it is done with full awareness of the consequences. It must be accompanied with a desire to produce the ensuing result while negligence is that, the defendant does not desire the consequences of his conduct but is careless or indifferent to the consequence of his action[3].

The very size of the population are far different today than they were a century and a half ago. As the society developed law too developed along; in fact law is one of the greatest instruments for changes and developments[4].These changes and developments brought about the tort of negligence as a separate and independent tort (thought it is of a recent origin). It is necessary to emphasize that the law of tort, like those other branches of the law, is concerned with the question of liability; an action founded upon tort is an action between persons either natural or artificial (i.e. corporation) and the outcome can only be that one of them, the defendant is or is not liable to do or refrain from doing something at the suit of the other. If there is no defendant whose liability can be established according to the principles of the law then the plaintiff is left without redress.

The increase in mechanization and industrialization of society and the consequent multiplication of personal injury caused by negligence have all led to the idea of negligence as a separate tort itself and not simply as a mode of committing trespass or other torts. The cardinal principle of liability is that the party complained of should owe to the party complaining, a duty to take care, and that the party complaining should be able to proof that he has suffered damage in consequence of a breach of that duty[5]

 

The first attempt to formulate a general principle was made by Brett M.R in Heaven v. Pender[6]. Where it was stated that a duty of care arises where a person is placed in such position that any ordinary person will foresee that if he did not use ordinary care in his conduct he will cause damage to another.

 

The most famous and important creative generalization is that of Lord Atkins in Donoghue v stevenson[7] where it was held that a manufacturer of an article owes a duty of care to the ultimate consumer to see that the article is free from any default that is likely to cause harm. 

Before this time (i.e. the decision in Donoghue‟s Case) privity of contract stood on the way of the plaintiff to recover damages for any harm suffered by the ultimate consumer. This principle have been adopted and followed in many of Nigerian situations and cases.

 These will be discussed later in this work8. Duty of care is the „magna cater‟, is the life wire and the pivot on which the establishment of liability revolves. It is the life wire in every case of negligence because in any claim for damages the plaintiff must established or prove that there was a duty owed to him by the defendant and the defendant has breached that duty which has caused injury or damage to the plaintiff. Where there is no duty owed by the defendant to the plaintiff it then means that he, the plaintiff has no claimed against the defendant.

Perhaps the plaintiff may look out somewhere else not negligence. 

 

             2.2     DEFINITION OF NEGLIGENCE 

In every day usage, negligence denotes, carelessness or inattentiveness.In legal sense negligence mean more than carelessness or being inattentive. According to B.M. Gandhi9, the word negligence carries two senses in the law of Torts. It may mean, 

i. Either a mental element which is to be inferred from one of the modes tort may be committed or it may mean;

 

  1. Osemobor v. Niger Biscuit (1973) 7 CCHJ. Also, Imarsel Chemical v. N.B.N (1974)     

    ECSLR 355 and Agbonmagbe Bank v. CFAO. (1966) ANLR 130

  1. Gandhi, B.M.(1987) Law of Tort, Eastern Book Company Lucknow p.683.

ii. An independent tort which consist of a breach of legal duty to take care which result in damage undesired by the defendant to the plaintiff. The later gives more meaning than the former[8].  

Winfield defined negligence[9]as; a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff: Thus its ingredients are:

  1. A legal duty on the part of A towards B to exercise care in such conduct of A as falls within the scope of the duty.
  2. Breach of that duty. 
  3. Consequential damage to B

The black‟s law dictionary [10] has the same definition with the often cited and popular definition given by Alderson B. in Blyth v. Birmingham water works Co.[11] where he stated “Negligence is the omission to do something which a reasonable man, guided upon those consideration which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”.



[1] . Winfield and Jolowicz, (1990)  on Tort, Sweet and Maxwell Londonp73  

[2] . Omotesho Aboaba,(2009) The Law of Tort in Nigeria, Malthouse Law Books, Lagos, p4

[3] .  Ibid p73, 74 

 

[4] .  opp. cit p4

[5] . Chukwu v. Uhegbu (1963) All NLR 642. It was held no liability in the absence of damage.

[6] 6. (1883) 11 Q.B.D 503     

[7] . (1932) AC 562

[8] . Italic is mine.

[9] . opp.cit p 72

[10] . Black law Dictionary p 1032 

[11] . (1856) 11 Ex. 781

 

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