Lectures Weeks 5 and 6 The Tort of Negligence

University of Nairobi
School of Law
LL.B2, The Law of Tort
The Tort of Negligence
Weeks 5 and 6
By
Benjamin Musau
Managing Partner
B M Musau & Co., Advocates
http://www.bmmusau.com/
August 21, 2014
Ben@bmmusau.co.ke
(http://www.bmmusau.com/
1
The Tort of Negligence
The Duty of Care
Introduction, General Test, Development of the Test, Modern Approaches
The Duty of Care
Harm to persons, Damage to property, Assumption of Responsibility, Economic loss
Breach of the Duty of Care
Standard of Care, Factors relevant to establish the required standard, Connection
between the standard and duty of care, professional negligence, breach of
employers duty to its employees, liability of an organization, proving negligence
Causation and Remoteness
Introduction, causation in fact, new intervening cause, remoteness of damage
Defenses to negligence
Contributory negligence, voluntary assumption of risk, express exclusion of liability,
illegality
Liability for defective premises and structures
Occupiers Liability Act, Occupiers liability and Liability of non-occupiers
August 21, 2014
Ben@bmmusau.co.ke
2
Elements of Negligence
Duty
Breach
Causation
Remoteness

August 21, 2014
Ben@bmmusau.co.ke
3
1. Duty of Care (General)

Definition: No succinct definition suffices, but the
dictum of Atkin in Donoghue v Stevenson when
expounding on the Neighbour Principle is
perhaps the most befitting definition of the
concept of duty of care. the rule that you are to
love your neighbor becomes in law, you should not
injure your neighbourwho then is my
neighbor?... person who are so closely and directly
affected by my act that I ought reasonably to have
them in contemplation as being affected when I
am directing my mind to the acts or omissions
which are called in question.

August 21, 2014
Ben@bmmusau.co.ke
4
Introduction to the Duty of Care

The concept emerged towards the end of the
18
th
century. It is a central concept without
which an action in negligence would fail. [see
Heaven v Pender (1883) 11 QBD, 503 at 507]

August 21, 2014
Ben@bmmusau.co.ke
5
Inception: It was first discussed by Brett MR in
Heaven v Pender (see earlier citation) who
stated that whenever a person is in such a
position that everyone of ordinary sense would
recognize that if he did not use ordinary care
and skill in his own conduct, he would cause
danger or injury to the person or property of
the other, a duty arises to use ordinary care and
skill to avoid such danger.
August 21, 2014
Ben@bmmusau.co.ke
6
Classical Neighbour Principle
This was introduced by Lord Atkin in Donougue v Stevenson
[read full facts on pg 157 Winfied and Jolowiz]
Facts:
Donoghue v Stevenson [1932] AC 562 House of Lords

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.
August 21, 2014
Ben@bmmusau.co.ke
7
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.

Held:
Her claim was successful. This case established the
modern law of negligence and established the
neighbour test.

August 21, 2014
Ben@bmmusau.co.ke
8
Lord Atkin:
"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."
August 21, 2014
Ben@bmmusau.co.ke
9
The neighbour principle had twofold
ramifications:
1. Established a category of duty-
manufacturer of goods to eventual
user.
2. It set the law of negligence on a path
of extension.
August 21, 2014
Ben@bmmusau.co.ke
10
Evolution of the Modern Duty of Care: The
two tier test:
This was introduced in the case of Anns v Merton
London Borough
Facts
Plaintiffs had sued the council in damages for
being negligent in failing to inspect the
foundations of a building. At trial the plaintiffs
case failed as it was barred by statute. The CA
allowed the appeals on the basis that the cause of
action arose when the damage the damage was
discovered or ought to be discovered.

August 21, 2014
Ben@bmmusau.co.ke
11
Held
Lord Wilberforce argued that it was no longer necessary to find a precedent with similar facts
instead, he suggested that whether a duty of care arose in a particular factual situation was a
matter of general principle.
Lord Wilberforces relevant dictum establishing the test is "in order to establish that a duty of
care arises in a particular situation, it is not necessary to bring the facts of that situation within
those of previous situations in which a duty of care has been held to exist. Rather the question
has to be approached in two stages. First one has to ask whether, as between the alleged
wrongdoer and the person who has suffered damage there is a sufficient relationship of
proximity or neighbourhood such that, in the reasonable contemplation of the former,
carelessness on his part may be likely to cause damage to the latterin which case a prima facie
duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to
consider whether there are any considerations which ought to negative, or to reduce or limit the
scope of the duty or the class of person to whom it is owed or the damages to which a breach of
it may give rise."
August 21, 2014
Ben@bmmusau.co.ke
12
Two-tier Test
Did the parties satisfy the neighbor principle?
i.e. was the plaintiff someone to whom the
defendant could reasonably be expected to
foresee a risk of harm?
If yes, a prima facie duty of care existed unless
there are policy reasons excluding existence of
such duty.

August 21, 2014
Ben@bmmusau.co.ke
13
Evolution of the Modern Duty of
Care: The three stage test (Caparo test)
This was enunciated in Caparo Industries PLC
V Dickman [1990] 2 AC 605

(see The modern approaches to the duty of
care: Page 35- 50 Street on Torts 13 ed)
August 21, 2014
Ben@bmmusau.co.ke
14
Facts
The plaintiffs had relied on the publication of the auditors
report in the company to buy the shares to mount a
successful take over bid. The reports made it known to the
public that there was a 1.2 million pre-tax profit but in actual
fact, fidelity had made a loss of 400000.
Caparo brought an action against fidelitys auditors arguing
that the latter owed it a duty of care because they could
foresee that a bidder would rely on the accounts in order to
make investment decision about the level of shareholding in
fidelity
August 21, 2014
Ben@bmmusau.co.ke
15
Held
No duty was owed to the plaintiffs.
The three tier test (Caparo test)
Was the damage reasonably foreseeable? (the
neighbor principle)
Was there a relationship of proximity between
defendant and claimant? It refers to the closeness of
relationship. (the foreseability test) )
Was it just, fair and reasonable to impose a duty in
such a situation? Policy reasons arise only where both
forseability and proximity requirements have been
met.
August 21, 2014
Ben@bmmusau.co.ke
16
Care: Incrementalism test

Brennan Js dictum in Sutherland Shire Council v. Heyman
(1985) 60 ALR 1, at 43-4 suggested that the law should
develop novel categories of negligence incrementally and
by analogy with established categories.
This suggests that the tripatriate test in Caparo may be
ousted in circumstances where an incremental step
beyond existing authorities could be taken. This is
enunciated in Perett v. Collins (1998) 2 Lloyds Rep 255, at
263.

August 21, 2014
Ben@bmmusau.co.ke
17
Care: Assumption of responsibility
Courts have recognized the possibility of negligence liability in
respect of negligent misstatements where a defendant
voluntarily assumes responsibility.
In Hedly Byrne & Co. Ltd. v Heller & Partners Ltd. [1964] AC
465, although this was a matter concerned with the question
of whether a duty could be imposed in connection with
economic loss caused by negligent misstatements, its
assumption of responsibility criterion has since been
suggested to form a more general test according to which a
duty of care may be ascribed. [see Street on torts 13 ed. p.
51-52]

August 21, 2014
Ben@bmmusau.co.ke
18
Foreseeable plaintiff
The test for reasonable foreseeability is objective in nature, it
is concerned with what the reasonable person in the position
of the defendant could have reasonably foreseen prior to the
injurious interaction between the parties.
The test for forseability is not particularly high. In Grieves v FT
Everrard & Sons, Lord Hoffman stated that the answers tona
test of forseeability will vary according to first the precise
description of what should have been foreseen and secondly
the degree of probability which makes it foreseeable.
August 21, 2014
Ben@bmmusau.co.ke
19
Forseeability
The operation of the reasonable foreseeability requirement is neatly illustrated by
Haley v London Electricity Board.
The defendants had dug a trench in the street with statutory authority. They took
some measures to help ensure the safety of passers-by, but these precations were
only adequate to the needs of passers by with decent eyesight. When claimant
who was blind and alone suffered harm the HOUSE OF lords held that they were
liable as they should have taken reasonable care for safety of all persons.
August 21, 2014
Ben@bmmusau.co.ke
20
Foreseeability of plaintiff or proximity?
Proximity in ordinary parlance may be construed to mean foreseeability.
Proximity differs from one situation to another because a more direct
nexus will be required with reference to some types of damage or some
types of conduct.
Where the defendant has directly caused physical harm to the claimant or
his property by an act, a duty may readily be established by showing
foreseeability and nothing else.
However proximity is not only with regards to physical nearness. [In Home
Office v Dorset Yatch Co. [1970] AC 1004] it was held that there would be
proximity between officers in charge of young offenders who allow them
to escape and owners of property in the immediate vicinity which is
damaged by the offenders during the escape.
August 21, 2014
Ben@bmmusau.co.ke
21
Foreseeable Risk
Foreseeability is essential in establishing whether there exists a duty of care.
In the famous case Palsgraf v. Long Island Railroad. 162 N.E. 99 (N.Y. 1928).,
the judge held that the railroad employees owed no duty of care to Palsgraf
because it was not foreseeable that their conduct would affect her.

The risk of injury was not foreseeable given that;
1. the package of fireworks was wrapped in such a way that no reasonable
person would have anticipated its potential for danger.
2. She was physically so far removed from where the railway workers were

Sometimes proximity is used to indicate the relationship between the
defendant and the source of harm. In Sutradhar v National Environment
Research Council [2006]UKHL 33, the defendant council undertook a survey of
the quality of water sources in Bangladesh. They did not test arsenic and their
report said nothing about it. The claimant based his action on the fact that
defendant had a duty not to release a report giving the impression that the
water was free of arsenic.
August 21, 2014
Ben@bmmusau.co.ke
22
The House of Lords held that for there to be a duty,
there must be proximity establishing a sense of a
measure of control over the potentially dangerous
situation.
This means that for one to be held liable as having the
requisite foresight or proximity to the risk, one should
be in a position of control over occurrence of the risk.
In the Sutradhar case, it was held that since the
defendants did not have control over the source of
water in Bangladesh , they were not in close proximity
to the risk and thus the risk was not foreseeable.
August 21, 2014
Ben@bmmusau.co.ke
23
2. Special Duties of Care

According to Phillip Osborne [The law of Torts,
Irwin law inc 2011], generally duties of affirmative
action is imposed if there is a special relationship.
These relationships can include (not exhaustive):
Employer/employee
Fiduciary relationships
Professional relationships
Relationships of authority
Control and supervision
Occupier/visitor
Relationship between professional
rescuers/citizens in danger.

August 21, 2014
Ben@bmmusau.co.ke
24
Examples of duties of affirmative action
include
Public authorities and the duty of care
Vicarious liability
Duty to the unborn
Duty to rescuers
Liabilities for psychiatric harm
Damage to property
Unplanned pregnancies and economic
losses
Economic loss
August 21, 2014
Ben@bmmusau.co.ke
25
a. Public authorities and the
duty of care
In instances where the public/statutory dimension is immaterial,
the negligence principles governing the liability of public
authorities are the same as those applicable in a run-of-a-mill
action between two private individuals. [Street on torts p. 56]
According to Mersey Docks and Harbour Board Trustees v. Gibbs
(1866) LR 1 HL 93, there is no general rule granting public
authorities immunities from liability in negligence just because
they are public not private bodies.

August 21, 2014
Ben@bmmusau.co.ke
26
In X v. Bedfordshire County Council Lord Browne-
Wilkinson averred that
it is clear both in principle and from the decided cases
that the local authority cannot be liable in damages for
doing that which parliament has authorized. Therefore if
the decisions complained of fall within the ambit of the
statutory discretion, they cannot be actionable at
common law. However, if the decision complained of is so
unreasonable that it falls outside the ambit of the
discretion conferred upon the local authority, there is no
a priori reason for excluding all common law liability
August 21, 2014
Ben@bmmusau.co.ke
27
b. Vicarious liability

Vicarious liability for public service employees
generally, would arise only where the existence
of such a duty is consistent with the proper
performance of his duties to the authority and it
is appropriate to impose such a duty on the
employee. [Street on torts p. 65] see also Phelps
v. Hillingdon LBC [2000] 3 WLR 776
August 21, 2014
Ben@bmmusau.co.ke
28
c. Duty to the unborn

Under English law, since the case of Burton v.
Islington Health Authority [1993] QB 204, A duty
is owed to the unborn child but that the duty does
not crystallize until the live birth of the child.
The constitution of Kenya article 26 dictates that
life begins at conception and that the every
person has right to life. This matter is yet to be
determined by the local courts. [what is the likely
kenyan position?]

August 21, 2014
Ben@bmmusau.co.ke
29
d. Duty to rescuers

This raises two important questions;
Is he a forseable claimant?
If he is, and given that he elects to undertake
the rescue, can he properly claim that the
originator of the danger owes him any
obligation in respect of his safety since he has
chosen the peril himself.

August 21, 2014
Ben@bmmusau.co.ke
30
e. Liabilities for Psychiatric harm

Definition: A psychiatric harm is a medically
recognized condition of a sustained nature that
disturbs the normal functioning of the mind. It
need not be accompanied by physical
conditions.[see American Psychological
Association, American Diagnostic and Statistical
Manual of Mental Disorder (4
th
revised edition,
2000).

August 21, 2014
Ben@bmmusau.co.ke
31
Psychiatric harm contd.
However not all harm is compensable
psychiatric harm. In Rothwell v Chemical &
Insulating Co. Ltd, the H of L held that one
would not recover for mere anxiety or grief.
The law expects persons to endure without
compensation such temporary emotions. The
plaintiff complained he was negligently
exposed to asbestos by their employers
making him to suffer grief and anxiety.
August 21, 2014
Ben@bmmusau.co.ke
32
Psychiatric harm contd
Similarly in Grieves v FT Everard & sons ltd
[2008] 1 AC 281, at [26] and [99] , when a
plaintiff suffered depression due to fear that he
would develop a life threatening asbestos-
related illness due to exposure to asbestos by
the company. It was held that the since it was
not reasonably foreseeable to an employer that
the claimant would suffer illness in this manner.
August 21, 2014
Ben@bmmusau.co.ke
33
Importance of Grieves
Grieves is important in not that it rules out the
possibility that an employer may be liable in
negligence for exposure to asbestos or other
substance causing a psychiatric illness but
because it emphasizes the centrality of
knowledge of employer of susceptibility to
psychiatric illness.
August 21, 2014
Ben@bmmusau.co.ke
34
Forms of Psychiatric Harm
There are two types of claimants in psychiatric harm,
Primary victims 1. those who suffer severe physical injury, 2. one
who is so badly treated following a traumatic harm that psychiatric
illness occurs and 3. where no physical harm occurs but psychiatric
injury arise (for instance in page v smith where the H of L found for
the claimant see page 79 of street in tort for further discourse)
Secondary victims- these are those who either have;
1. A close tie of love or affection with the primary victim.
2. Proximity in time and place to the accident.
August 21, 2014
Ben@bmmusau.co.ke
35
Secondary victims- psychiatric
harm
On secondary victims, Mcloughlin v OBRIAN
[1983] 1 AC 410, the H of L insisted that the
claimant should demonstrate her proximity in
time and space to the traumatic events.
However where one come upon the immediate
aftermath of the accident in which her family
had been so grievously injured , she was well
within the scope of duty to avoid nervous
shock.
August 21, 2014
Ben@bmmusau.co.ke
36
Leading case on liability to secondary victims for
psychiatric harm is now Alock v Chief Constable
of South Yorkshire police [1991] 4 All ER 907,
the two main issues in the case were
Whether relatives other than parents or spouses
could bring action for psychiatric harm.
Whether those who witnessed coverage of the
disaster on television could recover.

August 21, 2014
Ben@bmmusau.co.ke
37
On the first issue the H of L did not create rigid
categories of potential secondary claimants in nervous
shock claims. It however insisted on general close tie
of love and affection between the claimant and the
primary victim of the sort normally enjoyed by
spouses, children and parents.
Lord Acker stated that in cases of exceptional horror,
where a reasonably strong-nerved individual would
suffer shock, even a by stander non related to the
victim should recover damages.

August 21, 2014
Ben@bmmusau.co.ke
38
One must be either present or suffer trauma in
the immediate aftermath. Psychiatric illness
resulting from being informed of loved ones
death however gruesome the circumstances is
not recoverable.[see Street on tort p.82.]
August 21, 2014
Ben@bmmusau.co.ke
39
f. Economic loss
Generally no duty of care is owed to avoid causing another to suffer a loss
which is purely economic. I.e one where the financial loss is not related to
a personal injury or damage to property. See:

Spartan Steel & Alloys Ltd v Martin [1972] 3 WLR 502
Facts:
Spartan Steel and Alloys Ltd had a stainless steel factory in Birmingham,
which obtained its electricity by a direct cable from the power station.
Martin & Co Ltd were doing work on the ground with an excavator and
negligently damaged that cable (Spartan Steel did not own the cable). As a
consequence, the factory was deprived of electricity for 15 hours which
has caused physical damage to the factorys furnaces and metal, lost profit
on the damaged metal and lost profit on the metal that was not melted
during the time the electricity was off. Spartan Steel claimed all the three
heads of damage.
August 21, 2014
Ben@bmmusau.co.ke
40
The Court of Appeal, consisting of Lord Denning MR, Edmund-Davies LJ
and Lawton LJ delivered a majority judgment (Edmund-Davies LJ
dissenting), that the Spartan Steel could only recover the damages to their
furnaces, the metal they had to discard and the profit lost on the
discarded metal. They could not recover the profits lost due to the factory
not being operational for 15 hours. Their main reasoning for this was that
while the damage to the metal was "physical damage" and the lost profits
on the metal was "directly consequential" upon it, the profits lost due to
the blackout constituted "pure economic loss".
Although the majority seemed to agree that Martin & Co Ltd owed the
Spartan Steel a duty of care and the damage was not too remote since it
was foreseeable, they declined to allow the recovery of pure economic
loss for policy reasons

The fear behind allowing claims for "pure economic loss" is that
potentially unlimited claims could flood in. The risks may be unknowable,
and parties would find it impossible to insure.

August 21, 2014
Ben@bmmusau.co.ke
41
Economic loss continued
However, where the economic is caused by negligent mis-statement as
oppose to a negligent act liability may be imposed as established by a
House of Lords obiter in:

Hedley Byrne & Co v Heller [1963] 3 WLR 101
Facts:
Hedley Byrne were a firm of advertising agents. A customer, Easipower
Ltd, put in a large order. Hedley Byrne wanted to check their financial
position, and creditworthiness. and subsequently asked their
bank, National Provincial Bank, to get a report from Easipowers bank,
Heller & Partners Ltd., who replied in a letter that was headed,
"without responsibility on the part of this bank"
It said that Easipower was, "considered good for its ordinary business
engagements".
August 21, 2014
Ben@bmmusau.co.ke
42
The letter was sent for free. Easipower went into liquidation and Hedley
Byrne lost 17,000 on contracts. Hedley Byrne sued Heller & Partners for
negligence, claiming that the information was given negligently and was
misleading. Heller & Partners argued there was no duty of care owed
regarding the statements, and in any case liability was excluded.
The court found that the relationship between the parties was
"sufficiently proximate" as to create a duty of care. It was reasonable for
them to have known that the information that they had given would likely
have been relied upon for entering into a contract of some sort. This
would give rise, the court said, to a "special relationship", in which the
defendant would have to take sufficient care in giving advice to avoid
negligence liability.
However there were no damages as the disclaimer ousted any
responsibility created by Heller.
August 21, 2014
Ben@bmmusau.co.ke
43
Pure economic loss distinguished
When one suffers a financial loss arising out of injury to
person or property it qualifies to be an economic loss.
However pure economic loss is financial loss which is
unconnected with, and does not flow from, damage to his
own person or property. [Clerk & Lindsell p. 127- available in
UON library]
Claims in pure economic losses may include future profits that
may have been gained by a person or claims for damages
accrued in repairing damaged building. They are not easily
ascertained and may not be estimated accurately.
August 21, 2014
Ben@bmmusau.co.ke
44
Reluctance of courts in upholding
economic loss claims
Several reasons are advanced why the courts are reluctant to
allow full scale recovery of all economic loss.
1. The floodgates argument: advanced in Spartan Steel &
Alloys Ltd v. Martin [1973] QB 27.
Lord Fraser in Candlewood Navigation Corporation Ltd v.
Mitsuz OSK Lines Ltd [1986] AC 1 made a strong argument
that would support the floodgates theory. if claims by time
chatters were permitted, so too would those of a sub-
charterer and if those were admitted, why not also claims by
any person with a contractual interest in goods being carried
in the vessel, and by passengers in the ship, who suffer
economic loss due to delay attributable to the collision?
August 21, 2014
Ben@bmmusau.co.ke
45
2. The law has to be more sensitive where the rights
with regards to personal health and safety are affected
more than where he suffers economic loss. Lord Goff in
Leigh and Sillavan Ltd. v. Aliakmon Shipping Co. Ltd.
[1985] QB 350. stated; the philosophy of the market
place presumes that it is lawful to gain profit by
causing others economic loss, and that recognized
wrongs involving interference with others contract are
limited to specific international wrongs such as
inducing a breach of contract or conspiracy.
3. Economic loss is unpredictable as it is not subject to
any physical constraints.
August 21, 2014
Ben@bmmusau.co.ke
46
g. Damage to property

Damage to property as well as physical damage recieves a higher
degree of protection as compared to intangible economic
interests, particularly when the damage is inflicted by
negligence.
Duty in respect of loss or damage to property is owed only to a
person having legal ownership of, or possessory title to, the
property concerned at the time when the loss or damage
occurred [see Leigh & Sillivan ltd v. Aliakmon Shipping Co Ltd].
August 21, 2014
Ben@bmmusau.co.ke
47
Breach of Duty
Standard of care

This is the watchfulness, attention, caution and prudence that a reasonable
person in the circumstances would exercise. If a person's actions do not
meet this standard of care, then his/her acts fail to meet the duty of care
which all people (supposedly) have toward others. Failure to meet the
standard is negligence, and any damages resulting therefrom may be
claimed in a lawsuit by the injured party for compensation of damages.
Breach of duty in negligence liability may be found to exist where the
defendant fails to meet the standard of care required by law. Once it has
been established that the defendant owed the claimant a duty of care, the
claimant must also demonstrate that the defendant was in breach of duty.
The test of breach of duty is generally objective- the reasonable man test.
This test determines what an ordinary, reasonable and prudent person
would follow under the circumstances
August 21, 2014
Ben@bmmusau.co.ke
48
The reasonable man test: special standards
of care
A potential defendant will be negligent by falling below the standards of the ordinary reasonable
person in his/her situation, i.e. by doing something which the reasonable man would not do
or failing to do something which the reasonable man would do. ( Blyth v Birmingham Water
Works Co. [1856] 11 Ex 781).
The standard is objective and impersonal in that it eliminates the personal equation and is
generally independent of idiosyncrasies of the particular person whose conduct is in the
question but it cannot eliminate the personality of the judge. Different factors are taken into
account in reaching a conclusion.
The objective test can be variable and may depend on the circumstances of the particular
defendant or the situation. For example:
An amateur footballer is not expected to meet the standard of a footballer in the first
division: Condon v Basi [1985] 1 WLR 866.
In the context of 'horseplay', there is a breach of duty of care only where the defendant's
conduct amounts to recklessness or a very high degree of carelessness: Blake v Galloway
[2004] 3 All ER 315.
If the defendant is a professional they will be held to the standard of a reasonable person
within that profession. This applies also to trainees: Wilsher v Essex [1988] 1 AC 1074
Likewise, a learner driver is expected to meet the same standard as a reasonable competent
qualified driver, otherwise be found in breach of duty: Nettleship v Weston [1971] 3 WLR
370
August 21, 2014
Ben@bmmusau.co.ke
49
Where there is divided opinion within a profession as to the appropriate
course of action in a particular situation then a defendant is not to be treated
as in breach of duty by following one body of opinion rather than the other:
Bolam v Friern [1957] 1 W.L.R. 583, 587. this case formulated what is known
as The Bolam test:
"I myself would prefer to put it this way, that he is not guilty of negligence if
he has acted in accordance with a practice accepted as proper by a responsible
body of medical men skilled in that particular art . . . Putting it the other way
round, a man is not negligent, if he is acting in accordance with such a
practice, merely because there is a body of opinion who would take a contrary
view.
However, the opinion must be defensible and rooted in logic: Bolitho v City &
Hackney Health Authority [1997] 3 WLR 1151
A child is not expected to meet the standard of a reasonable adult, but will be
judged by the standard of a reasonable child of the same age: Mullin v
Richards [1998] 1 WLR 1304

August 21, 2014
Ben@bmmusau.co.ke
50
Importance of objective to be
achieved

In deciding whether the defendant has acted reasonably or is in breach of duty, the
courts weigh up four factors:
1. Likelihood of the harm.
2. Seriousness of the harm.
3. Cost of prevention.
4. Utility of defendants conduct.
It is necessary to balance the risk against the consequences of not taking it. This point
was aptly stated by Asquith L.J in Daborn Bath Tamways [1946] 2 All E.R 333,
where it was held that left-hand drive ambulance during emergency period of war
not negligent on turning right without signal. As has often been pointed out, if all
the trains in the country were restricted to a speed of five miles an hour, there
would be fewer accidents, but our national life would be intolerably slowed down.
The purpose to be served, if sufficiently important, justifies the assumption of
abnormal risk.
In Watt v Hertfordshire [1954] 1 WLR 835, where plaintiff was injured by a jack
carried in a lorry not specially designed to transport it which was urgently required
to save the life of a woman trapped under a heavy vehicle. Held that the fire
authorities were not negligent for the risk involved the plaintiff was not so great as
to prohibit the attempt to save life.
August 21, 2014
Ben@bmmusau.co.ke
51
Special standards of care: the Three-
stage test
A person must owe a legal duty of care to the other person in order
to claim for negligence. As the onus of proving that a duty of
care exists between the parties is on the plaintiff, he needs to
tackle the three state tests;
Firstly; was it reasonably foreseeable that the actions of the
defendant would cause harm/loss/injury? Is it reasonably
foreseeable that her conduct/omission is likely to impact on
plaintiff in a positive or negative manner?(This is known as
foreseeability test).
Secondly; is there a physical, factual or circumstantial link
between plaintiff and defendant? (this proximity test).
Thirdly; how vulnerable was the plaintiff? (Fair, just and
reasonable)

August 21, 2014
Ben@bmmusau.co.ke
52
Degrees of Negligence
These are the classes or grades of negligence into which it has been divided by
statutes and judicial decisions, ranging from slight negligence to that which is
gross, willful, or wanton. Measure of negligence is necessary for liability to result.
Ordinary negligence occurs when someone does something that a reasonably
careful person would not do under similar circumstances, or fails to do something
a reasonably careful person would do.
Gross negligence requires conduct substantially higher in magnitude than ordinary
negligence. It is very great negligence, or the absence of slight diligence, or the
want of even scant care. It amounts to indifference so far as other persons are
concerned.
Willful, wanton reckless conduct takes place a shade below actual intent. Proof of
willful, wanton, reckless conduct involves a high degree of likelihood that
substantial harm will result to another.
Two things distinguish willful, wanton, reckless conduct from negligence. First, the
defendant must knowingly or intentionally disregard an unreasonable
risk. Second, the risk must entail a high degree of probability of causing
substantial harm.
August 21, 2014
Ben@bmmusau.co.ke
53

Causation and Remoteness of
Damages
August 21, 2014
Ben@bmmusau.co.ke
54
Causation and Remoteness
Causation
The principle of causation requires that the claimant must
establish that the loss they have suffered was as a result of the
defendants wrongful action. Lord Hoffmann Lord Hoffmann,
writing in the Law Quarterly Review [2005] LQR 592 at 596-597
summarized the way in which the law deals with causation as
follows:
First, it is usually a condition of liability that not only should one
have done, or been responsible for, some act which the law
regards as wrongful, but that there should be a prescribed causal
connection between that act and damage or injury for which one is
held liable. There may be other conditions as well, such as that the
harm should have been foreseeable. But some prescribed causal
connection is usually required. Secondly, the question of what
should count as a sufficient causal connection is a question of
law
August 21, 2014
Ben@bmmusau.co.ke
55
There must be a causa causans (legally
effective cause) which attributes defendants
wrongful action to the loss suffered by the
claimant.
The standard test for establishing the causal
connection is but for the test often
couched in Latin as causa/conditio sine qua
non.
August 21, 2014
Ben@bmmusau.co.ke
56
Test
The test applied in:
Barnett v Chelsea & Kensington Hospital
[1969] 1 QB 428
Chester v Afshar [2004] 3 WLR 927

However, application of the test in
multiple causation may lead to absurd
results despite being a rule of thumb.
August 21, 2014
Ben@bmmusau.co.ke
57
INADEQUACY OF THE BUT FOR TEST

The but-for test will be inadequate in
a number of cases, for example,
where the breach of duty consists of
an omission to act, where the
claimant's damage is the result of
more than one cause and where the
claimant's loss is economic.
August 21, 2014
Ben@bmmusau.co.ke
58
Successive causation
Where there exist two
causes occurring in
succession it may be possible
to identify the factual cause
of the damage. However at
times policy factors may
come into play.

August 21, 2014
Ben@bmmusau.co.ke
59
See successive causes in:
Performance Cars Ltd v
Abraham [1962] 1 QB 33
Baker v Willoughby [1970] AC
467
Jobling v Associated Dairies
[1982] AC 794
Heil v Rankin [2000] 2 WLR
1173

August 21, 2014
Ben@bmmusau.co.ke
60
Concurrent cause
Where there exist two or more causes
which operate concurrently it may be
factually impossible to determine which
one was the cause. This has proved
problematic not least because it is the
claimant's responsibility to establish which
one was the cause. On general principles
the burden of proving this is on the
balance of probabilities i.e. the claimant
has to
August 21, 2014
Ben@bmmusau.co.ke
61
demonstrate that there is more than a
50% likelihood of the cause being the
breach of duty of the defendant. Where
there are two causes this means the
burden of proof is impossible to
discharge leaving the claimant
uncompensated often for an obvious
breach of duty. Various formulations
have arisen to circumvent the strict
approach.
August 21, 2014
Ben@bmmusau.co.ke
62
Bonnington Castings Ltd v Wardlaw [1956]
AC 613
McGhee v National Coal Board [1973] 1
WLR 1
Fitzgerald v Lane [1989] 1 AC 328
Wilsher v Essex [1988] 1 AC 1074
Holtby v Brigham & Cowan [2000] 3 ALL ER
421
Fairchild v Glenhaven [2002] 3 WLR
89
Barker v Saint Gobain Pipelines [2004]
EWCA Civ 545

August 21, 2014
Ben@bmmusau.co.ke
63
Bonnington Castings v Wardlaw
[1956] AC 613,
Wardlaw sought damages for having contracted
pneumoconiosis as a result of the accumulation of
silica particles in his lungs while working in
Bonnington Castings dress and fettle
shops. There were two possible sources of these
particles: from a pneumatic hammer and from
swing grinders. Bonnington were liable only in
respect of dust from the grinders. The House of
Lords held that the two sources had contributed
to Wardlaws contraction of the disease.
August 21, 2014
Ben@bmmusau.co.ke
64
McGhee v National Coal Board
[1973] 1 WLR 1
The claimant contracted dermatitis from dust in the kiln in
which he worked. His employer provided no washing
facilities which forced him to cycle home each day with the
dust still on his skin. It was not possible to prove that the
condition was caused by the presence of the dust on his
skin on the ride home, or whether he would have
contracted it in any event due to the presence of dust
during the ordinary working day. Held that McGhee could
recover because he was able to prove that the defendants
failure to provide facilities materially increased the risk of
the condition:
August 21, 2014
Ben@bmmusau.co.ke
65
Novus actus interveniens (New
intervening act)

Where there is a new intervening act
this may break the chain of causation
removing liability from the defendant.
The legal test applicable will
depend upon whether the new act
was that of a third party or an act of
the claimant.
August 21, 2014
Ben@bmmusau.co.ke
66
Novus actus interveniens - Act of
3rd party
Where the new act is of a third party, the
test is whether the act was foreseeable. If
the act of the third party was foreseeable,
the defendant remains liable and the chain
of causation remains in tact. If the act of a
third party is not foreseeable this will
break the chain of causation and the
defendant is not liable for the actions of
the third party.

August 21, 2014
Ben@bmmusau.co.ke
67
Case illustration see:
Home Office v Dorset Yacht Co Ltd
[1970] AC 1004
Lamb v Camden LBC [1981] 2 All ER
408
Knightley v Johns & Ors [1982] 1 WLR
349
August 21, 2014
Ben@bmmusau.co.ke
68
An alternative approach is to
apportion the loss between
the parties:
Webb v Barclays Bank Plc and
Portsmouth Hospitals NHS
Trust [2001] Lloyd's Rep Med
500
August 21, 2014
Ben@bmmusau.co.ke
69
Novus actus interveniens - Act of
the claimant
Where the new intervening act is that of the
claimant, the test is whether the claimant
acted reasonably in the circumstances. If the
claimant's actions are deemed reasonable the
chain of causation remains in tact and the
defendant is liable for the actions of the
claimant. If, however, the claimant's actions
are unreasonable in the circumstances the
chain of causation is broken and the
defendant is not liable for the actions of the
claimant.
August 21, 2014
Ben@bmmusau.co.ke
70
Cases illustrating the concept:
McKew v Holland [1969] 3 All ER
1621
Baker v TE Hopkins & Son Ltd [1959]
1 WLR Reeves v Commissioner of
Police of the Metropolis [2000] 1 AC
360 966

August 21, 2014
Ben@bmmusau.co.ke
71
Loss of chance
Where the claimant submits the defendant's
conduct lost them a chance of avoiding harm or
injury as opposed to causing the harm or injury
itself, the courts have been reluctant at imposing
liability. This most commonly comes up in relation
to medical negligence whereby a failure to
diagnose a condition correctly may prevent the
claimant from receiving vital treatment which
may have saved their life or avoided a
deterioration in their condition. The House of
Lords has twice considered this issue of
causation and on each occasion has refused to
impose liability:
August 21, 2014
Ben@bmmusau.co.ke
72
Hotson v East Berkshire Area
Health Authority [1987] AC
750
Gregg v Scott [2005] 2 WLR
268

August 21, 2014
Ben@bmmusau.co.ke
73
Loss of chance
However, outside the context of
medical negligence the courts have
been more willing to accept loss of a
chance as an actionable head of
damage:
Allied Maples v Simmons & Simmons
[1995] 4 All ER 907
August 21, 2014
Ben@bmmusau.co.ke
74
Remoteness:
Normally, the law limits liability to those
consequences which are attributable to
that which made he act wrongful.
Remoteness of damage relates to the
requirement that the damage must be
of a foreseeable type.
August 21, 2014
Ben@bmmusau.co.ke
75
Not every loss will be recoverable
in tort law. Originally a defendant
was liable for all losses which
were a direct consequence of the
defendant's breach of duty:
Rodgers in Winfield & Jolowicz
on Tort noted:
August 21, 2014
Ben@bmmusau.co.ke
76
No defendant is responsible ad infinitum
for all the consequences of his wrongful
conduct, however remote in time and
however indirect the process of causation,
for otherwise human activity would be
unreasonably hampered. The law must
draw a line somewhere, some
consequences must be abstracted as
relevant, not on grounds of pure logic, but
simply for practical reasons.
August 21, 2014
Ben@bmmusau.co.ke
77
Origin of the rule
Prior to the current test, the question of
whether the loss suffered by the
plaintiff was too remote to be
recoverable, was determined by asking
whether the loss was a direct
consequence of the negligence of the
defendant.

August 21, 2014
Ben@bmmusau.co.ke
78
This test was stated in Re Polemis &
Furness Withy & Company ltd.
[1921]3 KB 560 that a defendant was
liable for all the direct consequences
of his negligence, no matter how
unusual or unexpected.

August 21, 2014
Ben@bmmusau.co.ke
79
Facts and decision of the case:
The defendant chartered a ship from the plaintiff
and part of the cargo carried on board was petrol
containers which leaked during the voyage. While
the ship was being unloaded, the defendants
workers dropped a heavy plank into the hold,
which struck the side of the ship and caused
sparks which ignited petrol vapour causing fire.
Held: despite the fact that this kind of damage
was not foreseeable , the loss suffered by the
plaintiff was not too remote. The defendant was
liable for all the direct consequences of their
negligent actions.
August 21, 2014
Ben@bmmusau.co.ke
80
Reformulation of the rule
This was largely considered unfair as a
defendant could be liable for damage
which was not foreseeable and
therefore could not take steps to
prevent it. The direct consequence test
was overruled in the The Wagon
Mound No. 1 [1961] AC 388 and
replaced with a new test for deciding if
damages are too remote:

August 21, 2014
Ben@bmmusau.co.ke
81
Facts:
The Wagon Mound was taking bunkers at
the port of Sydney. As a result of
carelessness of the agents of the owner, a
substantial amount of the oil spilt on the
surface of the sea and drifted to a nearby
wharf owned by the plaintiff. When
plaintiffs agents saw oil on the surface,
they inquired from the plaintiff whether it
was safe to continue with welding which
response was positive.
August 21, 2014
Ben@bmmusau.co.ke
82
A spark lit the cotton wool on the surface of
the water which ignited oil causing fire which
extensively damaged the wharf. The plaintiff
sued the owner of the Wagon Mound to
recover the cost of wharf. He argued that
because some physical damage had been
caused by the spilt oil on the slipway, the fact
that the ignition of the oil was not a
foreseeable consequence of their negligence
did not matter. Held: liability in negligence did
not depend on the mere commission of a
negligent act, but on the consequences of
that act.
August 21, 2014
Ben@bmmusau.co.ke
83
The Wagon Mound test was
reconsidered and applied in:
Hughes v Lord Advocate [1963] AC
837
Doughty v Turner Manufacturing
Company [1964] 1 QB 518
The question as to whether for
remoteness of damage, in addition
to being damage of a type which is
foreseeable, the damage must occur
in a foreseeable manner.
August 21, 2014
Ben@bmmusau.co.ke
84
Hughes v Lord Advocate
suggests not but see:
Tremain v Pike [1969] 1 WLR
1556
Jebson v Ministry of Defence
[2000] EWCA Civ 198
Jolley v Sutton [2000] 1 WLR
1082

August 21, 2014
Ben@bmmusau.co.ke
85
The Egg Shell/Thin Skull Rule

This rule provides that a defendant
must take their victim as they find them
i.e. if the victim is particularly
vulnerable or has a pre-existing
condition resulting in them suffering
greater injury than would be expected
in an ordinary person, the defendant
remains responsible for the full extent
of the injury:
August 21, 2014
Ben@bmmusau.co.ke
86
Smith v Leech Brain [1962] 2 QB
405
A widow brought a claim against the
defendant under the Fatal Accidents Act
for the death of her husband. The
defendant employed the husband. As a
result of their negligence he incurred a
burn to his lip. The lip contained pre-
cancerous cells which were triggered by
the injury sustained. He died three
years later from cancer.
August 21, 2014
Ben@bmmusau.co.ke
87
Held:
The burn was a foreseeable consequence
of the defendant's negligence and this
resulted in the death. The defendant was
liable for his death. It was not necessary to
show that death by cancer was
foreseeable, nor that an ordinary person
would not have died from the injury. The
egg shell skull rule applies and the
defendant must take his victim as he finds
him.

August 21, 2014
Ben@bmmusau.co.ke
88
See also:
Page v Smith [1996] 1 AC 155

Corr v IBC Vehicles Ltd [2008]
2WLR 499

August 21, 2014
Ben@bmmusau.co.ke
89
Res ipsa loquitur (thing speaks for
itself)
This is a doctrine law that one is
presumed to be negligent if they had
exclusive control of whatever caused
the injury even though there is no
specific evidence of an act of
negligence, and the accident would not
have happened without negligence.
Morris LJ in Roe v Minister of Health
(1954) 2 QB 66 at 87 admirably put the
nature of the doctrine:

August 21, 2014
Ben@bmmusau.co.ke
90
Possesses no magic qualities, nor has it
any added virtue, other than that of
brevity, merely because it is expressed in
Latin. When used on behalf of a plaintiff it
is generally a short way of saying I submit
that the facts and circumstances which I
have proved establish a prima facie case of
negligent against the defendant There
are certain happenings that do not
normally occur in the absence of
negligence and upon proof of these a court
will probably hold that there is a case to
answer.
August 21, 2014
Ben@bmmusau.co.ke
91
Elements for Res Ipsa Loquitor
1. The harm would not ordinarily have occurred without
someone's negligence
2. The instrumentality of the harm was under the exclusive
control of the defendant at the time of the likely negligent
act
3. The plaintiff did not contribute to the harm by his own
negligence.
4. There must be no evidence of the actual cause of the
accident.
These elements were, in part, recognized by the famous
dictum of Erle CJ in Scott v London & St Katherine Dock Co.
(1865) 3 H & C. 596 stating:
August 21, 2014
Ben@bmmusau.co.ke
92
There must be reasonable evidence of
negligence, but when the thing is shown to be
under the management of the defendant or his
servants, and the accident is such as in the
ordinary course of things does not happen if those
who have the management use proper care, it
affords reasonable evidence, in the absence of
explanation by the defendants, that the accident
arose from want of care.
See Easson v L.N.E.Ry (1944) 2 KB 421, Gee v
Metropolitan Ry (1873) L.R 8 QB 161 and
Barkway v South Wales Transport Co. Ltd (1950)
1 All ER 392
August 21, 2014
Ben@bmmusau.co.ke
93
Rebutting the inference
The presumption is rebuttable by the defendant. Where the
defendant chooses not to rebut, the issue will be decided in
the plaintiffs favour. In Henderson v Henry E. Jenkins &
Sons (1970) AC 282,it was stated that the issue will be
decided in the claimants favour unless the defendants
provide some answer which is adequate to displace the
prima facie inference.
Initially, once res ipsa loquitur applied, the legal burden of
proof shifted to the defendant that he was liable unless he
proved on balance of probabilities that the event was due
to no fault on his part. However, the current view is that no
shift of the burden of proof which remains throughout on
the claimant. If the defendant cannot offer any explanation
of how the accident occurred but seeks to show that he
exercised all due care, his evidence must be complete to
answer the claim.
August 21, 2014
Ben@bmmusau.co.ke
94
Nervous shock
The term is used to mean the occurrence of a psychiatric illness or injury
caused to an individual person by events which have occurred due to the
negligence of another person.
The law adopts a restrictive approach in awarding damages for negligently
inflicted psychiatric injury. In addition to the Caparo test for imposing a duty
of care, the courts have laid down several obstacles which must be satisfied
by claimants in order to establish liability for negligently inflicted psychiatric
injury. Firstly there must be an actual psychiatric injury: Behrens & ors v
Bertram Mills Circus Ltd. [1957] 2 QB
Emotions of grief or sorrow are not sufficient to amount to psychiatric injury:
Hinz v Berry [1970] 2 QB 40 .
Nor are feelings of fear, panic or terror: Hicks v Chief Constable of South
Yorkshire [1992] All ER 65, Reilly & Anor v Merseyside Regional Health
Authority [1994] EWCA Civ 30

The claim was first recognized where the plaintiff had personally been put in
fear of imminent physical harm. i.e. Initially psychiatric injury claims were
limited to those who feared for their own safety: Dulieu v White [1901] 2 KB
669
August 21, 2014
Ben@bmmusau.co.ke
95
Nervous shock continued
The law has since developed to allow more wide ranging circumstances but is still
quite restricted. A distinction is drawn between primary and secondary victims. It was
then extended to shock caused by fear that imminent harm was about to befall others;
then to the witnessing of a shocking event (also to shock caused to a rescuer by
actually participating in a horrific event). It was then further extended by the decision
of the House of Lords in McLoughlin v O'Brien [1983] 1 AC 410, to shock caused by
coming upon the aftermath of a horrific event. In Alcock v Chief Constable of South
Yorkshire [1992] 1 AC 310, It was made clear that the 'witnessing' cases needed to
satisfy the tests of familial, temporal and spatial proximity.
A line was therefore drawn between close and not so close relatives (the familial test);
between coming on the scene and coming several hours later to the mortuary (the
temporal test); and between being at the scene and merely viewing it on television
(the spatial test). A recent example of the spatial test not being satisfied is McFarlane
v EE Caledonian Ltd [1994] PIQR 154 where the Court of Appeal said that the plaintiff,
though in a vessel nearby, had not been sufficiently proximate to, or involved in, the
Piper Alpha disaster to qualify.
August 21, 2014
Ben@bmmusau.co.ke
96
Primary victims
These are those who are involved immediately as a participant:
Alcock v Chief Constable of South Yorkshire. This was later restricted
to those in the zone of physical danger: Page v Smith [1996] 1 AC
155 , White & Ors v Chief Constable of South Yorkshire [1998] 3
WLR 1509 .
Primary victims only need to establish that physical harm was
foreseeable. There is no requirement that psychiatric injury was
foreseeable provided personal injury was foreseeable.
A primary victim does not owe a duty of care to a secondary victim
in relation to self-inflicted harm. Greatorex v Greatorex [2001] 1
WLR 1970

August 21, 2014
Ben@bmmusau.co.ke
97
Secondary victims
These are those not within the physical zone of
danger but witnesses of horrific events. Secondary
victims must demonstrate the four Alcock criteria are
present in order to establish liability:
1. A close tie of love and affection
2. Witness the event with their own unaided senses
3.Proximity to the event itself or its immediate
aftermath
4. Psychiatric injury must be a result of a shocking
event.

August 21, 2014
Ben@bmmusau.co.ke
98
The question that arises is whether it includes
psychiatric illness caused by the accumulation over
a period of time or more gradual assaults on the
nervous system.'In Jaench v Coffey (1984) 155 CLR
549 Brennan J said: I understand "shock" in this
context to mean the sudden sensory perception -
that is, by seeing, hearing or touching - of a person,
thing or event, which is so distressing that the
perception of the phenomenon affronts or insults
the plaintiff's mind and causes a recognizable
psychiatric illness.

August 21, 2014
Ben@bmmusau.co.ke
99
Cases: Taylor v Somerset Health
Authority [1993] 4 Med LR 34,
The court rejected a claim by a widow who had come to
the hospital after her husband had suffered a fatal heart
attack at work due to earlier medical mismanagement.
She had not believed that he had died, not even when
she was so informed by a doctor. She then saw him lying
peacefully behind curtains in the basement of the
hospital. The judge said that this did not fulfill the test of
temporal proximity in other words, she was too late on
the scene. He also said there had to be an external
traumatic event.
August 21, 2014
Ben@bmmusau.co.ke
100
Sion v Hampstead Health Authority
[1994] 5 Med LR 170
The court struck out as doomed to fail a claim by a father who
suffered psychiatric injury through attending for some two
weeks at the bedside of his 23-year-old son who had been
injured in a traffic accident and fatally deteriorated in hospital
due, allegedly, to negligent medical treatment. The court took
the view, relying solely on the pleadings, and having regard
principally to the psychiatric report that was served with the
particulars of claim, that there was no evidence of 'shock', no
sudden appreciation by sight or sound of a horrifying event
but, rather, a continuous process that ran from the father's
first arrival at the hospital to a death two weeks later that was
by then not unexpected and on then to his realization, after
the inquest, of the possibility of medical negligence.
August 21, 2014
Ben@bmmusau.co.ke
101
Negligent misstatement
The tort of negligent misstatement is defined as an inaccurate statement made
honestly but carelessly usually in the form of advice given by a party with special
skill/knowledge to a party that doesnt possess this skill or knowledge. The first
case in which a senior court was prepared to consider that it might be possible for
someone to be liable for damage caused by negligent misstatements was Hedley
Byrne v. Heller in 1963. This case concerned an advertising agency which had been
asked to extend a line of credit to one of its clients. The agency asked the clients
bank for a reference and the bank negligently produced an incorrect reference
which made it appear that the clients finances were in much better shape than
they really were. As a result the agency extended credit to a client which couldnt
pay and suffered losses. The House of Lords considered the position on negligent
misstatements and stated that where a person gives inaccurate information and it
is reasonably foreseeable that the recipient will act on this information, that
person may be liable for any losses which result. However, the House of Lords
decided that this would not apply in most cases, and that there would need to be
a special relationship between the parties.
August 21, 2014
Ben@bmmusau.co.ke
102
Two important things to consider whether special relationship exists are:

1. Has the person making the statement voluntarily assumed
responsibility for the recipient acting on this statement?
2. Is it fair, just and reasonable for the person to whom a statement has
been made to rely on that statement? Smith v. Eric Bush it was suggested
that it might be reasonable for someone who is buying a small property to
rely on the valuation carried out for the mortgage company, whereas the
purchaser of an expensive property could not reasonably rely on this and
should commission a full structural survey of his own. In the same year the
court in Caparo v. Dickman decided that it was not reasonable for investors
to rely on a an internal company audit report as this report was not
prepared for their benefit or as the basis for any investment and was
merely prepared to discharge a statutory duty. In the 1995 case of
Henderson v. Merret Lord Goff suggested that the fair just and
reasonable test wasnt really an independent requirement and was really
just a way of helping to determine whether there had been a voluntary
assumption of responsibility.
August 21, 2014
Ben@bmmusau.co.ke
103
DEFENCES TO NEGLIGENCE
August 21, 2014
Ben@bmmusau.co.ke
104
The plaintiff's:
pre-existing knowledge about the defendants
incapacity;
pre-existing knowledge of the risk associated with
the state of affairs that gave rise to the negligence
failure to take reasonable care of his or her own
safety
unlawful conduct
INTRODUCTION: FACTORS THAT MAY
UNDERMINE PS CLAIM
August 21, 2014
Ben@bmmusau.co.ke
105
Definition; contributory negligence is a failure
by the claimant to take reasonable care for his
own safety that contributes to the damage
about which he complains.
1.CONTRIBUTORY NEGLIGENCE
August 21, 2014
Ben@bmmusau.co.ke
106
Per (McHugh J): At common law, a plaintiff is guilty of
contributory negligence when the plaintiff exposes
himself or herself to a risk of injury which might
reasonably have been foreseen and avoided and
suffers an injury within the class of risk to which the
plaintiff was exposed. In principle, any fact or
circumstance is relevant in determining contributory
negligence if it proves, or assists in proving, a
reasonably foreseeable risk of injury to the plaintiff in
engaging in the conduct that gave rise to the injury
suffered.
The test of contributory negligence is an objective one

Joslyn v Berryman
August 21, 2014
Ben@bmmusau.co.ke
107
At common law, contributory negligence acted
as a complete defence. However, under the Law
Reform (Contributory Negligence) Act 1945,
contributory negligence operates as a partial
defence whereby the courts can apportion loss
between the parties. This makes it a more
attractive option to the courts than other
defences which can operate harshly and absolve
a defendant of liability no matter how much at
fault they may be.

August 21, 2014
Ben@bmmusau.co.ke
108
The defence is established if the defendant
proves the plaintiff guilty of conduct which
amounts to a failure to take care for his/her
own safety.
To plead the defence, the defendant bears the
onus of proof and must prove the requisite
standard of care that has been breached by P.
August 21, 2014
Ben@bmmusau.co.ke
109
Where any person suffers damage as the
result partly of his/her own fault and partly of
the fault of any other persons, a claim in
respect of that damage shall not be defeated
by reason of the fault of the person suffering
damage, but damages recoverable in respect
thereof shall be reduced to such extent as the
court thinks just and equitable having regard
to the claimants share in the responsibility for
the damage.
The Substance of Apportionment
Legislation (Law Reform
(Miscellaneous) Act 1965 (NSW) s10
August 21, 2014
Ben@bmmusau.co.ke
110
This provision only applies if the claimant was
at fault. The focus of the courts has been on
whether the claimant was negligent, although
a breach of statutory duty can constitute fault
too.
A claimant is negligent if he failed to take as
much care as the reasonable person in his
position would have taken for his own safety.
FAULT ON THE PART OF THE CLAIMANT
August 21, 2014
Ben@bmmusau.co.ke
111
The principles that are used to ascertain whether
a defendant breached a duty of care that he
owed to the claimant are, for the most part
applied to determine whether the claimant is
guilty of contributory negligence
The standard of care required is that of a
reasonable man. In deciding whether the
defendant was negligent, in asking whether the
claimant failed to take reasonable care for his
own safety, the risk of injury and the magnitude
of the potential harm to the claimant is weighed
against the cost and inconvenience of taking
precautions and the utility of the impugned
conduct.
August 21, 2014
Ben@bmmusau.co.ke
112
The fact that the defendant is a child is taken into
account in determining the standard of the
reasonable person and the defendants conduct is
compared with the benchmark of the reasonable
child of the same age.
Claimants who are confronted by an emergency
caused by the defendants negligence are treated
leniently. They will not be guilty of contributory
negligence simply because they made an error of
judgement in the agony of the moment. see
Jones v Boyce (1816) 1 Stark 493; 171 ER 540
(CCP).
August 21, 2014
Ben@bmmusau.co.ke
113
The plaintiff was a passenger on the
defendants coach. A coupling rein broke loose
and, thinking that the coach was about to
crash, the plaintiff jumped out and broke his
leg. The coach did not in fact crash and if he
had remained on it he would have suffered no
harm. As his actions were those of a prudent
and reasonable man, he was not guilty of
contributory negligent.
August 21, 2014
Ben@bmmusau.co.ke
114
Also see Moore v Hotel Plan Ltd 2010 EWHC
276 QB
The agony of the moment principle was
extended in Brandon v Osborne, Garrett &
Co. (1924) 1 kb 548 KBD to encompass threats
to the safety of the claimants immediate
family.
August 21, 2014
Ben@bmmusau.co.ke
115
Generally, common law treats rescuers
sympathetically. Only those rescuers who act
with reckless disregard for their own safety
will be penalized by the apportionment
provision. The rule that rescuers must be
particularly irresponsible before being found
contributorily negligent will often be engaged
simultaneously with the agony of the moment
principle.
August 21, 2014
Ben@bmmusau.co.ke
116
Where the claimant is exercising some right-
such as right of passage- his deliberately
encountering a danger created by the
defendant is not necessarily contributory
negligence. It will only constitute contributory
negligence if after making due allowance for
his right to be there, the claimant showed an
unreasonable neglect for his own safety.
August 21, 2014
Ben@bmmusau.co.ke
117
The bare fact that the claimant employee was
not paying attention at the time of the
suffering injury will not constitute
contributory negligence especially when
performing repetitive tasks at his work of
place. This is because it is the employers duty
to guard against risks of injury resulting from
inattention which is readily foreseeable.
August 21, 2014
Ben@bmmusau.co.ke
118
Claimants are entitled to expect that persons who
owe them a duty of care will take reasonable
precautions for their safety. See Tremayne v Hill
(1987) RTR 131 (CA).
Contributory negligence is a type of conduct and
not a state of mind. It involves a failure to take as
much care as the reasonable person would have
taken for his own safety. Therefore a claimant
who deliberately harms himself may be guilty of
contributory negligence since the reasonable
person doesnt engage in acts of self harm.
August 21, 2014
Ben@bmmusau.co.ke
119
If a person is vicariously liable for another
individual, the contributory negligence of the
latter is imputed to the former.

August 21, 2014
Ben@bmmusau.co.ke
120
The claimants fault must be casually related to
the damage about which he complains. As Lord
Atkin put it: if the claimant were negligent but his
negligence was not a cause operating to produce
the damage there would be no defence. This
principle was applied in Lertora v Finzi where the
defendant motorist failed in his plea of
contributory negligence against the driver of
another car on the basis that the latter failed to
wear a seat belt as he could not show that his
injuries would have been less severe had he used
a seat belt.
THE CLAIMANTS FAULT CONTRIBUTED
TO HIS DAMAGE
August 21, 2014
Ben@bmmusau.co.ke
121
C.f jones v livox Quarries Ltd (1952) 2 QB 608
(CA).
Occasionally, a claimants lack of care may be
a necessary condition of the injury about
which he complains but nevertheless
unrelated to it in the required sense. Consider
the case of St. George v Home Office (2008)
EWCA Civ 1068; (2009) 1 WLR 1670; (2008) 4
All ER 1039.
August 21, 2014
Ben@bmmusau.co.ke
122
The claimants fault must be casually related to
the loss about which he complains rather than
to the accident that caused the loss. The
principle is neatly illustrated by Froom v
Butcher.
August 21, 2014
Ben@bmmusau.co.ke
123
If the claimant is guilty of contributory
negligence, it is necessary to consider how his
damages should be apportioned. Some reduction
must be made.
The apportionment provision directs the courts
to reduce the claimants damages as they think
just and equitable having regard to the claimants
share in responsibility for the damage.
Two factors must be considered in determining
the appropriate reduction:
THE SCOPE OF THE APPORTIONMENT
PROVISION
August 21, 2014
Ben@bmmusau.co.ke
124
The relative blameworthiness of the parties
the casual potency of the parties respective acts
in issue.
It is important to note that the apportionment
provision operates on compensatory damages.
When two or more defendants cause the claimant
indivisible damage i.e. (where the damage caused
by one defendant cannot be separated from the
damage caused by the other defendant), the
extent of the claimants contributory negligence is
assessed against the totality of the defendants
negligence.
August 21, 2014
Ben@bmmusau.co.ke
125
A)THE ELEMENTS OF THE DEFENCE
The defendant will be able to avoid liability in
the tort of negligence if he proves that the
claimant voluntarily assumed the risk of injury.
The plea is often referred to by the maxim
volenti non fit injuria which basically means
that one who has invited or assented to an act
being done towards him cannot, when he
suffers from it, complain of it as a wrong.
2.VOLUNTARY ASSUMPTION OF RISK
August 21, 2014
Ben@bmmusau.co.ke
126
The defendant must establish that the claimant
had full knowledge of the risk and voluntarily
agreed to it.
The defence differs from contributory negligence
in that when applicable, it prevents liability from
arising and does not merely reduce the extent of
the defendants liability.
The courts have shown preference of the
contributory negligence defence over volenti non
fit injuria and hence the application of the latter
is restricted. See Nettleship v Weston (1971) 2
QB 691(CA), 701.
August 21, 2014
Ben@bmmusau.co.ke
127
The claimant must have been aware of the risk of injury that
materialised for one cannot consent to a risk of injury if one does
not know that it exists.
The fact that a reasonable person in the claimants position would
have known about the risk is insufficient to satisfy this requirement.
A case in which this prerequisite to the defences application was
determinative is Neeson v Acheson where a woman had been
bitten by her neighbor's dog after she placed her face close to its
jaws. As she had befriended the animal over the course of several
months prior to the incident, she had no reason to expect that it
would bite her. The defendant argued that the claimant had
voluntarily assumed the risk of injury. This submission was rejected.
The judge held that as the claimant did not foresee any risk of
injury, the defence was inapplicable.
i. The claimant knew of the risk of
injury
August 21, 2014
Ben@bmmusau.co.ke
128
Also see Poppleton v trustees of the
Portsmouth Youth Activities Committee
where the defence failed for want of full
knowledge by the claimant of the risk of
injury.
August 21, 2014
Ben@bmmusau.co.ke
129
It is not enough to enliven the defence of volenti that
the claimant knew of the risk of injury. He must have
also agreed to run the risk. This requirement was
explained by Bowater v Rowley Regis Corp. In that
case, his Lordship said: for the purpose of the rule. A
man cannot be said to be truly willing unless he is in
a position to choose freely, and freedom of choice
predicates, not only full knowledge of the
circumstances on which the exercise of choice is
conditioned, so that he may be able to choose wisely,
but the absence from his mind of any feeling of
constraint so that nothing shall interfere with the
freedom of his will.
2. The claimant voluntarily agreed to
incur the risk
August 21, 2014
Ben@bmmusau.co.ke
130
From the above dictum, if the claimants decision to expose
himself to a risk of injury is influenced by the slightest
pressure, the defence will fail. The knowledge requirement
is in a sense a sub-element of the voluntary agreement
requirement. This therefore means that the defence does
not lie against rescuers.
The voluntariness requirement also excludes the defence
where the claimant engaged in acts of self harm that the
defendant, in breach of a duty owed to the claimant, failed
to prevent. In Reeves v Commissioner of police of the
Metropolis, this was a claim by the estate and dependants
of a man who committed suicide while in police custody.
But for the negligence of the police, the deceased would
not have been able to take his own life. As the police were
under a duty to prevent the deceased from committing acts
of self harm. Held; the defendant could not succeed on the
volenti defence.
August 21, 2014
Ben@bmmusau.co.ke
131
In rare instances, the requirement that the
claimant voluntarily assume the risk of injury
will be dispensed with and mere knowledge of
the risk will bar the claimant e.g. where the
claimant is a gratuitous bailee of defective
chattel belonging to the defendant and the
defendant warns the claimant of its dangerous
nature.
August 21, 2014
Ben@bmmusau.co.ke
132
As a general the parties can reallocate
liabilities by a contract or by a notice. This
principle is however subject to significant
exceptions, the most significant being the
unfair contract terms act (UK). (The Kenyan
statute being Contracts in Restraint of Trade
Act which was repealed by the competition
Act 2010).
3.EXPRESS EXCLUSION OR LIMITATION
OF LIABILITY
August 21, 2014
Ben@bmmusau.co.ke
133
This defence means that a person cannot rely on their
illegal act or conduct to found an action against another
person. It is covered by the Latin maxim ex turpi causa non
oritur actio which means out of an illegal act there can be
no cause of action.
The defence must be pleaded and proved by the
defendant. The standard of proof is the balance of
probabilities.
The defence operates in the interest of public policy
because, allowing a claimant to profit from his/her illegal
conduct would constitute an affront to the public
conscience and the defence preserves the integrity of the
legal system.
4. ILLEGALITY
August 21, 2014
Ben@bmmusau.co.ke
134
A good illustration is Pitts v Hunt, a case
involving youths who had been drinking, had
set off home on a motorbike driven by one of
them with the claimant riding pillion and
encouraging the driver whom he knew was
drunk, under-age, unlicensed and uninsured,
to drive so recklessly as to frighten other road-
users). An accident occurred as a result of
which the claimant was seriously injured and
the driver/defendant killed. The claimants
action failed because of the defence of
illegality.
August 21, 2014
Ben@bmmusau.co.ke
135
i. Joint Illegality Enterprise Cases- Are actions in which
the defendant injured the claimant while engaged in
criminal enterprise jointly with him. See Pitt v hunt
ii. Unilateral illegality cases- claimants who act
unlawfully independently of the defendant at the
time of the defendants tort may also fail due to the
illegality defence. See Revill v Newberry.
iii. Sanction shifting cases- are actions in which the
claimant sues the defendant complaining that the
defendants negligence caused him to incur a criminal
sanction. See Gray v Thames Trains Ltd.
THREE TYPES OF ILLEGALITY CASE
August 21, 2014
Ben@bmmusau.co.ke
136
In conclusion, the illegality defence has been
under the scrutiny of the Law Commission for a
considerable period of time. In 2010, the
commission published its final report on the
defence. It was of the view that the courts
should take account of all policy considerations
in deciding whether the defence applies( these
considerations included deterrence, preventing
wrongful profiting and upholding the dignity of
the bank).
August 21, 2014
Ben@bmmusau.co.ke
137
LIABILITY FOR DEFECTIVE
PREMISES AND STRUCTURES
INTRODUCTION

August 21, 2014
Ben@bmmusau.co.ke
138
This title falls under occupiers liability. The concept
concerns the potential liability of occupiers to those
who suffer injury and/ or other forms of loss by virtue
of the state of the occupiers premises. Occupiers
Liability in Kenya is governed under the Occupiers
Liability Act , Cap 34, Laws of Kenya.

Liability for defective premises rests with two types of
defendants:
1. Occupier
2. Someone other than the occupier-Includes landlords,
builders and professionals i.e. architects. The general
trend in negligence case law demonstrates restricted
scope of liability of non-occupiers for economic loss
associated with defective premises

August 21, 2014
Ben@bmmusau.co.ke
139
1.Duty of occupier of premises to visitors (section 2)
The rules enacted by sections 3 and 4 of this Act shall have effect, in place
of the rules of the common law, to regulate the duty which an occupier of
premises owes to his visitors in respect of dangers due to the state of the
premises or to things done or omitted to be done on them.

The rules so enacted shall regulate the nature of the duty imposed by law
in consequence of a persons occupation or control of premises and of any
invitation or permission he gives (or is to be treated as giving) to another
to enter or use the premises, but they shall not alter the rules of the
common law as to the persons on whom a duty is so imposed or to whom
it is owed; and accordingly for the purpose of the rules so enacted the
persons who are to be treated as an occupier and as his visitors are the
same as the persons who would at common law be treated as an occupier
and as his invitees or licensees.
Relevant Provisions of the Occupiers
Liability Act, Cap 34.
August 21, 2014
Ben@bmmusau.co.ke
140
The rules so enacted in relation to an occupier of
premises and his visitors shall also apply, in like
manner and to the like extent as the principles
applicable at common law to an occupier of
premises and his invitees or licensees would
apply, to regulate
(a) the obligations of a person occupying or having
control over any fixed or movable structure,
including any vessel, vehicle or aircraft; and
(b) the obligations of a person occupying or having
control over any premises or structure in respect
of damage to property, including the property of
persons who are not themselves his visitors.
August 21, 2014
Ben@bmmusau.co.ke
141
2.Extent of occupiers ordinary duty(section 3)
An occupier of premises owes the same duty, the common duty of
care, to all his visitors, except in so far as he is free to and does
extend, restrict, modify or exclude his duty to any visitor or visitors
by agreement or otherwise.
the common duty of care is a duty to take such care as in all the
circumstances of the case is reasonable to see that the visitor will
be reasonably safe in using the premises for the purposes for which
he is invited or permitted by the occupier to be there.
The circumstances relevant for the present purpose include the
degree of care, and of want of care, which would ordinarily be
looked for in such a visitor, so that (for example) in proper cases
(a) an occupier must be prepared for children to be less careful than
adults; and
(b) an occupier may expect that a person, in the exercise of his calling,
will appreciate and guard against any special risks ordinarily
incident to it, so far as the occupier leaves him free to do so.

August 21, 2014
Ben@bmmusau.co.ke
142
In determining whether the occupier of premises has
discharged the common duty of care to a visitor, regard is
to be had to all the circumstances, so that (for example)
(a) where damage is caused to a visitor by a danger of which
he had been warned by the occupier, the warning is not to
be treated without more as absolving the occupier from
liability, unless in all the circumstances it was enough to
enable the visitor to be reasonably safe; and
(b) where damage is caused to a visitor by a danger due to the
faulty execution of any work of construction, maintenance
or repair by an independent contractor employed by the
occupier, the occupier is not to be treated without more as
answerable for the danger if in all the circumstances he had
acted reasonably in entrusting the work to an independent
contractor and had taken such steps (if any) as he
reasonably ought in order to satisfy himself that the
contractor was competent and that the work had been
properly done.
August 21, 2014
Ben@bmmusau.co.ke
143
N.B
1. The common duty of care does not impose on an
occupier any obligation
to a visitor in respect of risks willingly accepted as his by
the visitor (the question whether a risk was so
accepted to be decided on the same principles as in
other cases in which one person owes a duty of care to
another).
2. For the purposes of this section, persons who enter
premises for any purpose in the exercise of a right
conferred by law are to be treated as permitted by the
occupier to be there for that purpose, whether they in
fact have his permission or not.

August 21, 2014
Ben@bmmusau.co.ke
144
3. Effect of contract on occupiers liability to third
party(section 4)
Where an occupier of premises is bound by
contract to permit persons who are strangers to
the contract to enter or use the premises, the
duty of care which he owes to them as his visitors
cannot be restricted or excluded by that contract,
but (subject to any provision of the contract to
the contrary) shall include the duty to perform his
obligations under the contract, whether
undertaken for their protection or not, in so far as
those obligations go beyond the obligations
otherwise involved in that duty.

August 21, 2014
Ben@bmmusau.co.ke
145
A contract shall not by virtue of this section have the
effect, unless it expressly so provides, of making an
occupier who has taken all reasonable care answerable
to strangers to the contract for dangers due to the
faulty execution of any work of construction,
maintenance or repair or other like operation by
persons other than himself, his servants and persons
acting under his direction and control.
stranger to the contract means a person not for the
time being entitled to the benefit of the contract as a
party to it or as the successor by assignment or
otherwise of a party to it, and accordingly includes a
party to the contract who has ceased to be so entitled.
August 21, 2014
Ben@bmmusau.co.ke
146
Where by the terms or conditions governing any tenancy (including
a statutory tenancy which does not in law amount to a tenancy)
either the landlord or the tenant is bound, though not by contract,
to permit persons to enter or use premises of which he is the
occupier, this section shall apply as if the tenancy were a contract
between the landlord and the tenant.
In so far as it prevents the common duty of care from being
restricted or excluded, these provisions apply to contracts entered
into and tenancies created before the commencement of this Act,
as well as to those entered into or created after its
commencement; but, in so far as it enlarges the duty owed by an
occupier beyond the common duty of care, it shall have effect only
in relation to obligations which are undertaken after that
commencement or which are renewed by agreement (whether
express or implied) after that commencement.
August 21, 2014
Ben@bmmusau.co.ke
147
Landlords liability in virtue of obligation to repair
Where premises are occupied by any person under a tenancy which puts on the
landlord an obligation to that person for the maintenance or repair of the
premises, the landlord shall owe to all persons who or whose goods may from
time to time be lawfully on the premises the same duty, in respect of dangers
arising from any default by him in carrying out that obligation, as if he were an
occupier of the premises and those persons or their goods were there by his
invitation or permission (but without any contract).
Where premises are occupied under a subtenancy, subsection (1) of this section
shall apply to any landlord of the premises (whether the immediate or a superior
landlord) on whom an obligation to the occupier for the maintenance or repair of
the premises is put by the subtenancy, and for that purpose any obligation to the
occupier which the subtenancy puts on a mesne landlord of the premises, or is
treated by virtue of this provision as putting on a mesne landlord, shall be treated
as put by it also on any landlord on whom the mesne landlords tenancy puts the
like obligation towards the mesne landlord.

August 21, 2014
Ben@bmmusau.co.ke
148
For the purposes of this section, where premises
comprised in a tenancy (whether occupied under
that tenancy or under a subtenancy) are put to a
use not permitted by the tenancy, and the
landlord of whom they are held under the
tenancy is not debarred by his acquiescence or
otherwise from objecting or from enforcing his
objection, then no persons or goods whose
presence on the premises is due solely to that use
of the premises shall be deemed to be lawfully on
the premises as regards that landlord or any
superior landlord of the premises, whether or not
they are lawfully there as regards an inferior
landlord.

August 21, 2014
Ben@bmmusau.co.ke
149
Landlords liability in virtue of obligation to
repair(section 5)
Where premises are occupied by any person
under a tenancy which puts on the landlord an
obligation to that person for the maintenance or
repair of the premises, the landlord shall owe to
all persons who or whose goods may from time
to time be lawfully on the premises the same
duty, in respect of dangers arising from any
default by him in carrying out that obligation, as if
he were an occupier of the premises and those
persons or their goods were there by his
invitation or
permission (but without any contract).

August 21, 2014
Ben@bmmusau.co.ke
150
Where premises are occupied under a subtenancy, subsection (1) of this
section shall apply to any landlord of the premises (whether the
immediate or a superior landlord) on whom an obligation to the occupier
for the maintenance or repair of the premises is put by the subtenancy,
and for that purpose any obligation to the occupier which the subtenancy
puts on a mesne landlord of the premises, or is treated by virtue of this
provision as putting on a mesne landlord, shall be treated as put by it also
on any landlord on whom the mesne landlords tenancy puts the like
obligation towards the mesne landlord.

For the purposes of this section, where premises comprised in a tenancy
(whether occupied under that tenancy or under a subtenancy) are put to a
use not permitted by the tenancy, and the landlord of whom they are held
under the tenancy is not debarred by his acquiescence or otherwise from
objecting or from enforcing his objection, then no persons or goods whose
presence on the premises is due solely to that use of the premises shall be
deemed to be lawfully on the premises as regards that landlord or any
superior landlord of the premises, whether or not they are lawfully there
as regards an inferior landlord.
August 21, 2014
Ben@bmmusau.co.ke
151
A landlord shall not be deemed to have made default
in carrying out any obligation to the occupier of the
premises unless his default is such as to be actionable
at the suit of the occupier or, in the case of a superior
landlord whose actual obligation is to an inferior
landlord, his default in carrying out that obligation is
actionable at the suit of the inferior landlord.
This provisions shall not put a landlord of premises
under a greater duty than the occupier to persons who
or whose goods are lawfully on the premises by reason
only of the exercise of a right of way.
Nothing in Section 5 shall relieve a landlord of any
duty which he is under apart from this section.
August 21, 2014
Ben@bmmusau.co.ke
152
N.B
For the purposes of this section, obligations
imposed by any enactment in virtue of a tenancy
shall be treated as imposed by the tenancy, and
tenancy includes a statutory tenancy which
does not in law amount to a tenancy, and
includes also any contract conferring a right of
occupation, and landlord shall
be construed accordingly.
Section 5 applies to tenancies created before the
commencement of the Act, as well as to those
created after its commencement.
August 21, 2014
Ben@bmmusau.co.ke
153
The common duty of care
General principles
August 21, 2014
Ben@bmmusau.co.ke
154
The common duty of care is a duty to take such care as
in all the circumstances of the case is reasonable to see
that the visitor will be reasonably safe in using the
premises for the purpose for which he is invited or
permitted by the occupier to be there.
In Laverton v Kiapasha where a takeaway food outlet
could not prevent the floor of their premises becoming
wet because customers were constantly coming in with
wet feet on a rainy evening. There was no liability
under the 1957 Act when a customer slipped and
injured her ankle since, on the facts, the restaurant had
done what was reasonable on a very rainy night to
keep the floor as dry as possible.
August 21, 2014
Ben@bmmusau.co.ke
155
The duty under the Act is virtually identical to the duty
imposed under the common law of law of negligence.
The occupiers liability Act still amounts to little more
than an echo of well-established common-law
principles with regards to the standard of care required
in relation to child visitors and those who have a
particular trade, profession, or skill. Section 3(3) states
that an occupier must be prepared for children to be
less careful than adults and an occupier may expect
that a person, in the exercise of his calling, will
appreciate and guard against any special risks
ordinarily incident to it, so far as the occupier leaves
him free to do so.
August 21, 2014
Ben@bmmusau.co.ke
156
Example. a window cleaner injured through the
insecurity of some part of the exterior of the
premises which he uses as a foothold or handhold
for the purpose of cleaning the outside of the
windows can be expected by the occupier to have
guarded against this special risk which is ordinarily
incidental to the job of a window cleaner. But there is
no reason why the occupier should not be liable if
the window cleaner is injured through some defect
in the stair case when he is going upstairs, in the
ordinary way, to reach the windows on an upper
floor.
August 21, 2014
Ben@bmmusau.co.ke
157
There is no duty owed to those who use the
premises in excess of their permission to be
there. In The Carlgarth Scrutton J stated that
when you invite a person into your house, you
do not invite him to slide down the banisters.
In order to recover damages, the claimant
must be able to show that he suffered loss or
injury of a kind that was reasonably
foreseeable.
Common law of negligence does not afford
special duties to those exercising rights
conferred by law.
August 21, 2014
Ben@bmmusau.co.ke
158
At common law, an occupier discharged his duty
to a visitor by a warning sufficient to convey to
the visitor full knowledge of the nature and
extent of the danger
That rule was changed by section 3(4)(a ) of the
Occupiers Liability Act which states that where
damage is caused to a visitor by a danger of
which he had been warned by the occupier, the
warning is not to be treated without more as
absolving the occupier from liability, unless in all
the circumstances it was enough to enable the
visitor to be reasonably safe.
August 21, 2014
Ben@bmmusau.co.ke
159
In Roles v Nathan, Lord Denning provided a
helpful example of where the mere provision of a
warning would not discharge the duty under the
Act. He suggested that simply warning visitors of
the danger of a footbridge over a stream would
be insufficient to ensure a visitors safety if there
was only one footbridge and it was essential to
use that bridge to enter the defendants land. But
he added that, if there were two bridges and one
of them was safe, a warning about the unsafe
bridge would then fulfill his duty.
August 21, 2014
Ben@bmmusau.co.ke
160
A warning has also been held to be ineffective
where it was very small in size and posted in
an insufficiently prominent position. On the
other hand, if a warning is given, but ignored
by the visitor a court would probably hold
that, in all the circumstances, the common
duty of care had been discharged. If the
defendant does not know of the danger, it is
obvious that he cannot rely on section 3(4)(a)
although he may still have a defence based on
exclusion of liability.
August 21, 2014
Ben@bmmusau.co.ke
161
The common duty of care does not impose on
an occupier any obligation to a visitor in
respect of risks willingly accepted as his by the
visitor(section 3(5)). In staples v west-Dorset
District Council, damages were refused where
the claimant slipped and was injured on the
defendant councils algae-covered rocks of
which he had full knowledge, and in respect of
which it was proven that he would have
ignored any warning had one been given.
Assumption of risk
August 21, 2014
Ben@bmmusau.co.ke
162
In determining whether the occupier of
premises has discharged the common duty of
care to a visitor, regard is to be had to all the
circumstances. The claimant cannot by his
own carelessness enlarge the duty of care
owed to him by the defendant.
Contributory negligence
August 21, 2014
Ben@bmmusau.co.ke
163
Section 3 (4)(b) of the Act provides that where damage
is caused to a visitor by a danger due to the faulty
execution of any work of construction, maintenance or
repair by an independent contractor employed by the
occupier, the occupier is not to be treated without
more as answerable for the danger if in all the
circumstances he had acted reasonably in entrusting
the work to an independent contractor and had taken
such steps (if any) as he reasonably ought in order to
satisfy himself that the contractor was competent and
that the work had been properly done.
Liability for independent contractors
August 21, 2014
Ben@bmmusau.co.ke
164
In applying this subsection, the courts must
consider whether initially, it was reasonable for
the occupier to engage an independent
contractor to undertake the construction,
maintenance, or repair work. It is presumptively
reasonable for an occupier to engage a contractor
wherever, as in Haseldine v C A Daw & Son ltd,
the work to be done requires special skill or
equipment not possessed by the occupier.
Delegation should, at the very least, be
reasonable where it is normal commercial
practice to engage contractors for such work.
August 21, 2014
Ben@bmmusau.co.ke
165
Secondly the occupier may have to check the competence
of the contractor. If the work is of a fairly standard nature,
the contractor may be trusted. However, if the work
entrusted to a contractor is of a kind that that after its
completion, necessarily involves a risk to future visitors if it
has been carelessly executed, the occupier will be under a
duty to check the competence of the contractor.
Thirdly, the occupier will need to take such steps as he
reasonably ought in order to satisfy himself that the work
had been properly done.
Its unclear from the act if the test to be adopted is a
subjective or objective one.
August 21, 2014
Ben@bmmusau.co.ke
166
Since the act uses the past tense in relation to work done, it is clear
that section does not envisage the occupier employing a suitable
professional to supervise the ongoing work of an independent
contractor. In AMF International Ltd v Magnet Bowling Ltd, it was
said that if the occupier was going to invite the claimant to bring
valuable timber on to the site while construction was ongoing, then
to escape liability he might have to employ a supervising architect
to ensure that the contractors had made the premises sufficiently
safe for that timber safely to be brought there.
On the other hand, in Ferguson v Welsh, it was said that an
occupier will not normally be liable to the contractors employee for
injuries sustained because the premises were unsafe by virtue of
the dangerous system of work adopted by the independent
contractors.
August 21, 2014
Ben@bmmusau.co.ke
167
Section 2(3)(a) provides that the rules so enacted in
relation to an occupier of premises and his visitors shall
also apply, in like manner and to the like extent as the
principles applicable at common law to an occupier of
premises and his invitees or licensees would apply, to
regulate
(a) the obligations of a person occupying or having control
over any fixed or movable structure, including any vessel,
vehicle or aircraft.
With regard to movable structures the test is probably
whether one would go into or upon the structure. Fixed
structures on the other hand must be taken to connote
some non-movable chattels constructed on land.
Some special cases falling within the
Occupiers Liability Act
August 21, 2014
Ben@bmmusau.co.ke
168
Section 2(3)(b) provides that;
the obligations of a person occupying or
having control over any premises or structure
in respect of damage to property, including
the property of persons who are not
themselves his visitors.
This subsection will impose a duty on the
occupier to prevent damage to goods on the
premises arising from the defective physical
condition of the premises.
Damage to property
August 21, 2014
Ben@bmmusau.co.ke
169
At common law, contracts for the use of premises were deemed to contain
various implied terms relating to the safety of the premises.
Section 6 of the act provides that;
1) Where persons enter or use, or bring or send goods to, any premises in
exercise of a right conferred by contract with a person occupying or
having control of the premises, the duty he owes them in respect of
dangers due to the state of the premises or to things done or omitted to
be done on them, in so far as the duty depends on a term to be implied
in the contract by reason of its conferring that right, shall be the
common duty of care.
2) Subsection (1) of this section shall apply to fixed and movable structures
as it applies to premises.
This therefore means that where a person enters the occupiers premise
under a contract between himself and the occupier, the occupier is
obliged to extend the common duty of care to that entrant, subject to
any effective contrary term in their contract.
Liability in contract
August 21, 2014
Ben@bmmusau.co.ke
170
This section is not limited in its operation to
personal injury caused by the defective state
of the occupiers premises; it also covers
damage to goods.
Contractual entrants have the option of suing
in contract or in tort.
August 21, 2014
Ben@bmmusau.co.ke
171
Section 3(1) provides that; An occupier of premises owes the same duty, the
common duty of care, to all his visitors, except in so far as he is free to and does
extend, restrict, modify or exclude his duty to any visitor or visitors by agreement
or otherwise. The occupier thus has two options if he wishes to modify the
common duty of care owed to his visitors. He may do so through a contract or
affixing a clear and unequivocal notice, either affixed at the point of entry to the
land or included in a programme or ticket giving access to the land, will suffice.
These two options must however be read subject to the limitations stipulated in
the Act.
Section 4(1) provides that Where an occupier of premises is bound by contract to
permit persons who are strangers to the contract to enter or use the premises, the
duty of care which he owes to them as his visitors cannot be restricted or excluded
by that contract, but (subject to any provision of the contract to the contrary) shall
include the duty to perform his obligations under the contract, whether
undertaken for their protection or not, in so far as those obligations go beyond the
obligations otherwise involved in that duty.
Exclusion of liability
August 21, 2014
Ben@bmmusau.co.ke
172
Section 4(2) provides that a contract shall not by virtue of this
section have the effect, unless it expressly so provides, of
making an occupier who has taken all reasonable care
answerable to strangers to the contract for dangers due to the
faulty execution of any work of construction, maintenance or
repair or other like operation by persons other than himself,
his servants and persons acting under his direction and
control.
It is therefore apparent that the burden on the defendant
under section 4 appears to be greater than that imposed by
the common duty of care because he is unable to delegate to
independent contractors any part of his duty of care.

August 21, 2014
Ben@bmmusau.co.ke
173
Naturally, an occupier who intentionally harms a person whom he
has permitted to be on his premises is answerable for so doing
under the law of battery. But in addition the occupier may also be
under a duty according to the ordinary law of negligence to take
reasonable care when conducting certain activities on his land that
are foresee ably likely to harm visitors of whose presence he is, or
ought to be, aware.
The scope for the residual role of the common law stems from the
wording of section 2(1)of the Act which provides that the rules
enacted by sections 3 and 4 of this Act shall have effect, in place of
the rules of the common law, to regulate the duty which an
occupier of premises owes to his visitors in respect of dangers due
to the state of the premises or to things done or omitted to be
done on them.
COMMON LAW LIABILITY AND
ACTIVITIES ON LAND
August 21, 2014
Ben@bmmusau.co.ke
174
The dangers caused by the defective state of premises are
not confined to entrants to those premises. Occupiers are
under a general duty to take reasonable care to prevent
dangers on their premises damaging persons or property
on adjoining premises. This is so whether the danger arises
from disrepair of the premises or some man-made or
natural hazard such as fire caused by lightning striking a
tree.
there are two issues of particular difficulty affecting the
duties of care owed by the occupiers of adjoining premises.
First where a claimant tenant sues his landlord for damage
resulting from the defective state of repair of premises
retained by the landlord. The case law is not clear on the
matter.

LIABILITY TO THOSE OUTSIDE ONES
PREMISES
August 21, 2014
Ben@bmmusau.co.ke
175
The second area of difficulty in delimiting the duty
owed by an occupier to those on adjoining premises
relates to damage inflicted on those adjoining premises
by third parties. No duty will generally be found to lie
where damage is inflicted on a neighbors' property by
vandals or burglars even though the wrongdoers
conduct may have been facilitated by a state of
disrepair or lax security on the defendants occupier
premises. This approach is in line with the general
reluctance on the part of the courts to impose liability
on a person who has no special relationship with the
relevant third party, for the conduct of that third party.
August 21, 2014
Ben@bmmusau.co.ke
176
a) Builders And Contractors; Physical Damage
A builder or contractor actually engaged in construction or repair work
on land and premises affixed to that land owes a duty of care to the
occupier of the premises, his visitors, and, where foreseeable, probably
to trespassers as well.
Any universal exemption from a duty of care in respect of real property
did not survive the decision in AC Billings & sons Ltd v Riden where the
building contractors were employed to make an alteration to the front
part of a house. In the course of this work, the contractors failed to take
reasonable care to make access to the house safe and Riden, a visitor,
was injured when leaving the house in the hours of darkness. The
contractors were held liable in negligence.
Subsequent decisions held the original builders of a property liable for
personal injury resulting from the negligent construction or repair of
buildings both to subsequent occupiers and to their visitors.

LIABILITY OF NON-OCCUPIERS
August 21, 2014
Ben@bmmusau.co.ke
177
b) Builders And Contractors: Other Loss
No duty of care will be imposed on a builder or contractor in
respect of economic loss occasioned by negligent work of
construction or repair, save where some special relationship is
found to exist between him and the claimant. i.e. contractors and
development companies owe no duty in tort in respect of financial
losses occasioned to subsequent occupiers of property with
whom they have no contractual relationship. In D& F Estates v
Church Commissioners for England D built a block of flats later
occupied by C. crumbling plasterwork caused by Ds negligence
forced C to expend considerable sums of money on repairs. The
house of lords found that D was not liable for Cs loss. By analogy
with liability for chattels, D owed a duty to safeguard C against
physical damage to person or property caused by negligent
construction of the property, but not against economic loss
caused by a defect in the quality of the property itself. Damage to
the property itself was a mere defect in quality- the property was
simply not value for money.
Recoverable physical damage must be occasioned to separate
property.
August 21, 2014
Ben@bmmusau.co.ke
178
Some of the questions left open in the above
case were partially answered in the case of
Murphy V Brentwood District Council where
the defendant local authority failed to inspect
the foundations of a building adequately, with
the result that building became dangerously
unstable. The claimant, being unable to raise
any money for repairs, had to sell the house at
a considerable loss, which he sought to
recover from Brentwood District Council. This
action failed as the loss was identified as a
pure economic loss.
August 21, 2014
Ben@bmmusau.co.ke
179
The effect of Murphy would seem to be this. Outside a
contractual relationship, negligent construction of a
building only results in liability if actual physical
damage is caused to a person or property that is not
part and parcel of the building thus if defective
foundations cause cracks in the walls or threaten
damage to any fixture in the building installed by the
defendant, the cost of remedying the damage is
irrecoverable economic loss.
By contrast, if A negligently installs a defective central
heating boiler in a building erected by B but which is
later bought and occupied by C, and then later still that
boiler explodes damaging the building, that loss is
recoverable by C against A. As negligence has caused
actual damage to property quite separate from the
inherently defective component he installed.
August 21, 2014
Ben@bmmusau.co.ke
180
C)professional advisers
Architects and other professionals involved in the
design of the building owe a duty of care to any
person who may be injured on the site in the
course of the building work, and to subsequent
occupiers of the premises in respect of both their
personal safety and damage to property separate
from the original property itself.
on subsequent disposal of the premises,
surveyors engaged to inspect the property will be
liable for any failure to value the property
competently or to discover and report on
relevant defects in the property.
August 21, 2014
Ben@bmmusau.co.ke
181
Local authorities owe duties to tenants and subsequent
purchasers of local authority dwellings as builders and
contractors. see Rimmer v Liverpool City Council
(1985) QB 1
Landlords- historically, the liability of landlords for
defects arising from disrepair on premises let by them
was largely limited to contractual liability. Landlords
are now liable to tenants, their families, and others
injured on the premises just like anyone else in respect
of their negligent installations or repairs in the
premises let by them.
August 21, 2014
Ben@bmmusau.co.ke
182
Next Lecture

Intentional Torts
August 21, 2014
Ben@bmmusau.co.ke
183

Lectures Weeks 5 and 6 The Tort of Negligence

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Lectures Weeks 5 and 6 The Tort of Negligence

Uploaded by

Copyright:

Available Formats

University of Nairobi

You might also like