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