tort of negligence

Negligence in tort means a conduct that is blameworthy because it misses the legal standard required of a reasonable person in protecting individuals against foreseeably risky, harmful acts of other members of the society. A person is negligent in law if that person fails to use that degree of care towards others that an ordinarily careful person would have used under the circumstances. The duty imposed by law is the duty of ordinary care.

Negligence is a breach of duty of care imposed by common law or statute resulting in damage to plaintiff, it is actionable when duty of care is owed, failure to attain the standard of care prescribed by law and damage connected with the duty to the plaintiff. Makwe v. Chief O. Nwakor & Anor. (2000) FWLR (Pt. 63) 1.

The tort of negligence developed in three phases. In the first phase, negligence was but a component of other torts. It then became evolved to be action on the cases and finally from the decision of the court in the case of Donoghue v. Stephenson, negligence became recognized as an independent tort.

The court laid down the principle that where there is reasonable foreseeability of injury, the defendant owes the plaintiff a duty of care to ensure that the plaintiff does not suffer such injury. The court also expanded the neighbor principle to include those persons who are so closely and directly affected by a person’s acts, those persons whom the defendant ought reasonably to have in contemplation as being so affected when directing his mind to the act of omission called to question.

For a claim of negligence, the modern elements are the following:

• a. The existence of a duty.
• b. The breach of the duty.
• c. Proximate cause by the breach.
• d. Damages suffered from the breach. U.B.A. Plc. v. G.S. Ind. (Nig.) Ltd. (2011) 8 NWLR (Pt. 1250) 590.

The reasonable man of ordinary prudence is the central figure in the formula traditionally employed in passing negligence for adjudication. In order to objectify the legal abstractions, like ‘care, reasonableness or foreseeability, the man of ordinary prudence was invented as a model of the standard to which all men are required to confirm. He is the embodiment of all the qualities which we demand of the good citizen; and if not exactly a model of perfection.

The cause of action in negligence consists of wrongful act and consequent damages. Julius Berger Nig. Plc. v. Omogui (2001) FWLR (Pt. 64) 305.

Negligence is only actionable if actual damage is proved. There is no right of action for nominal damages in the tort of negligence as negligence alone does not give rise to a cause of action. International Messengers Nigeria Ltd. v. Engineer Nwachukwu (2004) All FWLR (Pt. 220) 1216.

Negligence alone does not give a cause of action; damage alone does not give a cause; the two must coexist; particulars of negligence must be pleaded. Makwe v. Nwukor & Anor. (2001) 7 SC (Pt. i) 1.

The burden of proof of negligence falls upon the plaintiff who alleges negligence. This is because negligence is a question of fact, not law and it is the duty of who asserts to prove. Failure to prove particulars of negligence is fatal to the case of the plaintiff. Imama v. Robinson (1979) 3 – 4 SC.

The test of whether an act amounts to professional negligence is hat of the standard of an ordinary skilled man exercising and professing to have that special skill. Accordingly, a doctor is not negligent if exercised the ordinary skill of an ordinary competent man professing to have that special skill. Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173.

There is nothing preventing a plaintiff who pleads a specific act of negligence from relying on the doctrine of res ipsa loquitor in the alternative. But while there may be nothing wrong in pleading the doctrine of res ipsa loquitor as an alternative, a court of law s not competent to examine the doctrine together or simultaneously with specific particulars of negligence enumerated by the plaintiff and give judgment on both. N. P.A. v. Rahman Bros. Ltd. (2010) 17 NWLR (Pt. 1221) 100.

The particulars of negligence are intended to appraise the defendant of what he did or failed to do, in breach of his duty of care to the plaintiff and to demonstrate that a reasonable person in his position ought not to have committed the breach or ought not to have done that which he did or did not do. Ogbiri v. N.A.O.C. ltd. (2010) 14 NWLR (Pt. 1213) 208.

Once a medical officer applies a drug to a patient in accordance with his professional knowledge and skill, the resultant effect of such application of drugs cannot be attributed to negligence on the part of the medical officer. Abi v. CBN (2012) 3 NWLR 1.

Once a medical officer applies a drug to a patient in accordance with his professional knowledge and skill, the resultant effect of such application of drugs cannot be attributed to negligence on the part of the medical officer. Abi v. CBN (2012) 3 NWLR 1.

The purport of the doctrine of res ipsa loquitor is to shift the onus on a defendant to disprove negligence. Odebunmi v. Abdullahi (1997) 2 NWLR (Pt. 489) 526.

The purport of the doctrine of res ipsa loquitor is to shift the onus on a defendant to disprove negligence. Odebunmi v. Abdullahi (1997) 2 NWLR (Pt. 489) 526.

The doctrine of res ipsa loquitor comes into operation where:

• a. There is proof of the happening of an unexpected occurrence.
• b. The occurrence is one that would not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff.
• c. The circumstances point to the negligence in question being that of the defendant. P.S.H.S.M.B. v. Goshwe (20120 2 NWLR (Pt. 1338) 385.

An action in tort of negligence can arise from a breach of contract. Where dealt with under negligence, duty of care must be shown to exist. **FBN Plc. v. Excel Plastic Industry Ltd. ** (2003) FWLR (Pt. 160) 1624.

Where claim for negligence is subsumed in a breach of contract per se, it will not attract an award for the tort of negligence. Haston (Nig.) Ltd. v. ACB Plc. (2002) FWLR (Pt. 119) 1476.

In negligence, admission of liability is as good as proof. Anna Construction Company Ltd. & Anor. v. Ayeni (1982) 4 C.A.

Negligence must be proven beyond peradventure. Demosi v. Itire (1981) 3 C.A.

The defences to negligence are as follows:

• a. Contributory negligence: This is where damage suffered by the plaintiff is partly due to his own fault.
• b. Violenti fit non injuria: No injury is done to one who consents.
• c. Inevitable accident.

Contributory negligence is a common law defense to a claim based on negligence in tort. It applies to cases where a plaintiff has through his own negligence, contributed to cause the damages he incurred as a result of the defendant’s negligence. It is failure by plaintiff to use reasonable care for safety of himself or property thereby, becoming author of his wrong. R v. Southern Canada Power Co. (1937) 3 AU ER 923.

Contributory negligence depends on foreseeability and the standard is not that of duty of care but what is reasonable in the circumstances, it only goes to reduction of damages and where there is counterclaim but a pleading thereof in defense, the discretion of the trial judge holds the scale for the apportionment of share of fault. Okin Biscuits Ltd. & Anor. v. Chief Oshe (2004) FWLR (Pt. 189) 1133.

The burden of proof of contributory negligence is on defendant. It may be inferred from the plaintiff’s own evidence or on the balance of probabilities from the facts. Ololo v. NAOC Ltd. & Anor. (2001) FWLR (Pt. 6) 1833.