This Article has given us a brief run-through on what Negligence is, as well as the extent to which a damage could be too remote and finally, possible defences to an allegation of negligence.
INTRODUCTION
Negligence is a two-edged sword that swings both ways, but more viciously in the direction of that person who carries the burden of duty of service, or holds a responsibility to another person to act in a particular way.
This article will help draw a fine line on how remote the damage done to a person can be, to make the curator of that damage liable to the other person. It discusses the duty of care using the celebrated case of Donoghue and Stevenson[1], and also highlights the possible defenses a Defendant can raise to exonerate himself wholly or partly from liability. In addition, it will relate this concept to our everyday lives as well as our professional lives, and how we carry out our businesses in relation to our clients.
WHAT IS NEGLIGENCE?
Generally, Lawyers will define negligence as the breach of an owed legal duty of care owed by a person known as the Defendant, which results in damage to another person known as the Plaintiff. The following paragraph provides an illustration of this ideal.
At a close observation, you would ask the following questions:
To answer the preceding questions, one would have to conclude from the preceding illustration that:
In a more holistic approach, the ingredients of the tort of negligence are:
The most important among the three is the breach of duty of care owed to the victim of the damage, and the question of whether or not the curator of the damage, in a particular case, is liable to the victim for negligence depends on the extent of the duty of care owed.It all boils down to the proximity between the parties concerned to determine who bares the liability for negligence.
Lord Atkins established in the English case of Donoghue v. Stevenson, the manner in which the proximity that would create legal duty[2]may be determined:
“…The rule that you are to love your neighbour, becomes, in law, you must not 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.”[3]
REMOTENESS OF THE DAMAGE.
Under this subheading, we would discuss the principle of causation. In fact, where we would consider the “BUT FOR” test to properly explain the principle of Remoteness of damage.
CAUSATION IN FACT
This deals with the question of whether it is a fact that for the action or inaction of the Defendant, he breached his duty of care and the injury has occurred. The Court has over time applied the “BUT FOR” test.
This test applies in the sense that it asks the question that, a car accident would not have happened but for the action or inaction of the driver either driving above the speed limit or failing to apply the brakes when necessary.
In the celebrated case of Barnett and Chelsea and Kensington Hospital Management Committee[4], the Victim’s husband took tea and afterwards complained of vomiting for 3 hours, and later in the night he went to the hospital where the nurse on duty consulted the Doctor on the telephone. The Doctor informed the Victim to go and consult his own Doctor the next morning. The Victim’s husband later on the same day died of arsenical poisoning. In an action for negligence brought against the hospital for the act of its servant, it was held that in failing to examine the deceased, the Doctor was guilty of breach of duty of care, but this duty was, however, held not to be the cause of the death. This breach was not held to be the cause of the death because even if the deceased was examined, it could have been impossible to save his life. Thus, it could not be said that:
“…but for the Doctor’s negligence, the deceased would have lived”
Remoteness of damage arises only after concluding the question in fact. The importance of concession in law is to avoid the situation where the Defendant is liable ad infinitum; for all the consequences of the wrongful act or omission.
An event which occurs independently after a breach of duty which contributes to the Plaintiff’s damage may break the chain of causation, so as to make the Defendant not liable to any damage that occurs beyond this point.
Now, the starting point of any rule of the Remoteness of damage is the familiar idea that a line must be drawn somewhere. It would be unacceptably harsh for every Defendant to be responsible for all the consequences which he has caused[5].
Certainly, the question of where to draw the line on remoteness of damage cannot be answered by a mathematically precise formula. Judges have used their discretion from time to time, and in that process, two formulas have been highlighted:
THE TEST OF REASONABLE FORESIGHT
If the consequences of a wrongful act could be foreseen by a reasonable man, then they are not too remote. If on the other hand, a reasonable man could not have foreseen the consequences, then they are too remote. This means an individual shall be liable only for the consequences which are not too remote i.e. which could be foreseen.
THE TEST OF DIRECTNESS
According to the test of directness, it simply means, a person is liable for all the direct consequences of his wrongful act, whether he could foresee them or not; because consequences which directly follow a wrongful act are not too remote.
We cannot effectively discuss this topic without mentioning and explaining what defences are open to a person who negligence has been alleged against. Therefore, we are going to talk about the three major defences to an allegation of negligence as I have outlined below.
DEFENSES TO NEGLIGENCE
There are three major defenses to a claim of negligence:
There is a Latin maxim that says ‘nemo dat quod non habeat’ which means, you cannot give what you do not have. Now tell me, can a Medical Doctor owe a duty to passengers on an aircraft to get them to their destination? The answer is NO, owing to the fact that he has no business flying an aircraft.