The stage which you can legally define the Tort of Negligence.


2/11/202210 min read


The growth of commercial activities in Nigeria has necessitated the growth of negligence in Nigeria. The decision in Donoghue V. Stevenson was the first major attempt at streamlining the tort of negligence. Over the years the courts have been faced with the task of streamlining the principles formulated in this case, leaving each.

In a layman's language, negligence ordinarily means carelessness or irresponsibility. Negligence may be seen to mean the doing or failing to do what a reasonable man in one's position would not do or omit respectively.

In law, the tort of negligence is more sophisticated, it consists of three elements namely;

• A duty of care imposed by law on the defendant.

• A breach of the duty by the defendant.

• Damage resulting from the breach.


In construing a duty of care we ask ourselves;

• Is there a recognizable. Duty owed to the plaintiff?. From the facts of the case, does the defendant owe the plaintiff a duty of care?

In answering the above questions, we are to ask ourselves;

• Is there sufficient proximity between the defendant and the claimant?

• Would it be just, fair and reasonable to impose a duty?

• Should the duty of care be denied on grounds of public policy or justice?

In Donoghue v. Stevenson, the plaintiff went out with a friend. The friend ordered a gingerbeer drink contained. in an opaque bottle for her. While pouring out the content from the bottle, the remains of a dead and decomposed snail fell out. The plaintiff fell ill afterwards. The defendants contended that there was no privity because she was not a party to the contract. Lord Atkin test. He defined a neighbour as persons that are so closely and directly affected by my act that I reasonably ought to have them in contemplation as being so affected irrespective of privity.

This decision was followed in Osemobor v. Niger Biscuits where the plaintiff was eating some biscuits which he bought from a shop. He then felt a hard object and found that it was a decayed tooth embedded in the biscuit. He became ill and sued the manufacturers. It was held that manufacturers owed consumers a duty of care.

As time went on, the courts tried to close their flood gates by narrowing down the principles. Some other requirements were added to the reasonable foreseeability test of Donoghue V Stephenson.

In Anns v. Merton London Borough, Lord Wilberforce noted that the courts should in addition, ask whether it would be contrary to public policy to impose such duty. Then the House of Lords in the case of Murphy v. Brentwood District Council opined that the courts should impose a duty of care only when they can find similar precedents. In Caparo Industries Plc v. Dickman, the court noted that (in addition to the damage being reasonably foreseeable and there being proximity between the parties) the court should ask whether it is just, fair and reasonable to impose a duty in the particular situation/circumstance.

In recent times, the courts have been reluctant to impose duty in certain circumstances for example,

• Areas of pure economic loss, where instead of causing damage, the defendant's act led to the loss of possible profit/gain for the plaintiff. E.g. in Spartan Steel v. Martin and Co[12], The defendants had negligently cut an electric wire. This led to a power outage which lasted for almost 14 hours. The plaintiff manufacturing industry was affected as such they could not carry on with their duty. The court awarded compensation for the damage to the furnace and the metal but refused to award refused to award damages for the loss of profit for metal which would have been processed during the time the factory was shut as the remedy was purely economic. Note however that purely economic losses may be enforced in cases of misrepresentation.

• Psychiatric injury: where the negligence caused some psychiatric injury, the court may still be reluctant and would ask whether the psychiatri injury is recognized in medicine and reasonably foreseeable.

Negligence of a counsel in handling his client's case: Some clients usually allege that their counsel/lawyer was negligent in handing their case and that is why they lost. The courts have expressed its reluctance to entertain such claims.

Duty of care has also been construed in;

·         Manufactures owe a duty of care to consumers.

·         The doctor is required to use reasonable care to treat a patient.

·         Duty of care not to make misstatements.



This is the second element. In determining whether there has been a breach of duty, the courts would first ask;

• What would a reasonable man have done?

• What would a reasonable man in the circumstances of the defendant (from the facts of the case) have done?

When asking these questions, the courts usually take into cognizance four elements;

1. The likelihood of harm. (The greater the likelihood, the greater the amount of caution required). In Bolton v. Stone; The court held that the fence of the cricket pitch was high enough that the likelihood of harm (from) a stray ball) to a passerby was very narrow.

2. The gravity of consequences, should accident occur. In Paris v. Stepney Borough Council, the plaintiff was employed by the defendant as their mechanic. They were aware that he had only one eye and they failed to provide him with safety googles. While he was fixing the under of a vehicle a piece of metal flew into his good eye and damaged it. It was held that the defendant employer had been negligent in not providing safety googles for the plaintiff.

• The importance of the defendant's activity to the economy and society.

1. The cost and practicability of measures to avoid the harm. The court have held in cases that the occupiers did everything to ensure that the floor was safe nevertheless, the workman slipped and fell. There was no negligence as the only other possible step they would have taken would be to have closed the factory

The claimant can prove res ipsa loquitur which means that the facts speak for themselves. The plaintiff should first show that the thing causing the damage was under the control of the defendant and that but for the negligence of the defendant the accident would not have occurred. This shifts the onus of proof to the defendant. The defendant may then plead that it was an accident beyond his control.


Damages in this sense is not monetary compensation but it involves physical, otherwise injury. In determining whether the damages was caused by the defendant's breach, two factors come to play;

• Causation in fact.

• Remoteness of damage (causation in law).


The claimant should prove that the defendant's breach actually caused the damage.The first step usually starts with the But-for test; which involves asking the question; but for the defendant's breach, would such breach have occurred because of the complexities involved in construing damages caused by the defendant, the courts usually adopt the common sense approach rather than the philosophical approach else, there would be no case.

In the case of Barnett V. Chelsea and Kensington Hospital Management Committee, the deceased (the plaintiff's husband) went to the hospital complaining of nausea and vomiting. The doctor, instructed the nurse to tell him to go home and consult his GP (a general health practitioner). He died 5 hours later of arseniral hours later of arsenical poisoning. The court held, using the "but-for" test that; had the doctor checked him then, there would still have been nothing the doctor could have done to save him. As such, the hospital was not liable as failure to examine (the breach) was not the cause of the death.

In the case of McWilliams V. Sir Williams Arrol and co ltd, the worker fell from a building which he was working on. It was established that had the worker been wearing a safety harness (which the employer was to provide), he would not have fallen.

The employers were able to establish that even though they owed their employees a duty of care, the worker would have fallen anyway because he has been offered the safety harness in the past and declined to wear. Failure to provide safety harness did not cause the death.

The but-for test usually runs into hitches. E.g

• Multiple causes or tortfeasors of the claimant's injury.

• The determination as to whether an intervening event worsened the claimant's injury.

• Contributory negligence.

The claimant worked in an industry and was exposed to brick dust. There was no shower facility at the place of work as such, he had to cycle home every day before he had his bath. He got dermatitis. The employers were held liable for neglecting to provide a shower facility for the workers. It was held that although the cause could not be attributed directly to the defendant employers, so long as they materially increased the likelihood of the occurrence of the damage, they were held liable.

In the case of Baker V Willoughby, the plaintiff's leg was injured in an accident due to the defendant's negligence. Before the conclusion of the suit, he was shot on the same damaged leg by armed robbers. The leg had to be amputated. He could not trace the armed robbers. The court held that the defendant be fully liable.

In the case of Fairchild V Glenhaven funeral services, the plaintiff have worked for various employers and during his employment, he had been exposed to asbestos. He later contacted mesomothamia. Occurs when a fibre has penetrated the cell in the lungs. According to medical evidence, it usually takes about 30 years before the symptoms could be noticed. As such, he could not point at any particular one of his employers as being his boss when the disease was contacted. The court followed the ruling in Mcghee V National coal board and held that each of the employers were wholly and severally liable because they all materially increased the risk of contracting the disease.

This rule has been accepted but varied in Baker V. Corus, where it was held that the defendants would be proportionally liable.

Issues also arise as to loss of chance of recovery: The case of Gregg V scott, is dealing with loss of chance of recovery. The doctor negligently diagnosed the plaintiff's malignant cancer to be benign. This could delay the plaintiff's surgery reducing ^ his chances of recovery. The court held that the plaintiff's chance of recovery has been reduced.


The law sets a limit to which the tort-feasor should be liable for his negligence. In assessing the extent to which the defendant should be liable, the courts usually ask;

• To what extent should the defendant be liable for causing damage to the plaintiff?

• Is the harm a reasonably foreseeable consequence or is there a break in causation or contributory negligence? As was noted in the wagon mound case, that no man is liable ad infinitum.

In the case of Re Polemis (polemis V Furness), some benzene vapor had settled on the hold of the ship. During transfer, one of the worker negligently dropped a plan which caused a spark and which caused a spark and ignited the fuel leading to a fire which destroyed the ship. The court held that the defendants were responsible for every direct consequences of their acts foreseeable or not.

In the case of Tankship V morts dock company, the defendants negligently discharged oil into the sea. The oil floated on the surface of the sea and some lodged at a nearby wharf. On the wharf, there were some welding operations going on. The plaintiffs knew that there plaintiffs knew that there was oil but later got confirmation that they could continue their welding operations.

The court held that the damages were too remote as the defendants could not have contemplated it as a consequence of their act. The court in this case disagreed with the case of re polemis holding that the liability imposed is seemingly too broad and argued that for a defendant to be held liable, the damages must have been reasonable foreseeable. Form this case, the question to be asked is: could the damage caused have been reasonable foreseeable by a reasonable man? If the damages resulting are too remote and far flung, the defendant should not be liable.

In Hughes V Lord Advocate (where it was held that accidents of burns from the lamps was reasonably foreseeable even though it occurred through explosion. (asbestos cement and molten metal causing an explosion), this reasoning was confirmed. Some more tests were added;

The damage caused should not be of a different kind than that foreseen.

• Once it was foreseeable, the defendant cannot argue that it occurred by a different means.

Other principles applied in determining the damage include;

• Egg-shell skull principle. This is one area where the repolemis rather than the wagon mound comes to play.

In the case of Smith V. Leech Braine and co ltd, the plaintiff's husband was an employee of the defendant company, due to the defendant's negligence, a piece of molten zinc flew out of a tank and inflicted a burn on his lips. Cancer developed on the site of the burn of which he died three years later. The defendants were held liable even though the death was not a foreseeable consequence.

In the case of R V Blaue, the accused stabbed the victim who required blood transfusion, she refused the transfusion on the ground of her religious belief as a result, she died. The defendant was held to be liable.

• Quantum of damages: that the defendant cannot argue that he could not have foreseen that the amount of loss would be so great.

Contributory Negligence

In the Case of Ekwo V Enechukwu, the plaintiff's hand was injured while he was fixing the defendant's seat. The plaintiff consulted a native doctor to treat the wound. The hand later had to be amputated. The court held that the plaintiff did what a reasonable man in his circumstance will do because that was what he honestly believed could heal him.


1. [1932] AC 562.

2. UTB V. Ozoemena (2000) JELR 43944 (CA), Ngilari V. Mothercat (1999) 13 NWLR (pt. 636) 626.

3. Anns v. Merton London Borough [1978] AC 728.

4. Ashton v. Turner [1981] QB 137.

5. (Supra).

6. Junior Books v. Veitchi [1983] 1 AC 520.

7. (1973) N.C.L.R. 382.

8. (Supra).

9. [1978] AC 728.

10. [1991] UKHL 2, [1991] 1 AC 39

11. [1990] UKHL 2.

12. [1973] QB 27.

13. Hedly Byrne v. Heller and Partners Co [1964] AC 465.

14. Alcock v. Chief Constable of South Yorkshire [1992] 1 AC 310, Bourhill v. Young [1943] AC 92.

15. Hall v. Simons [1999] 3 W.L.R. 873.

16. Donoghue v. Stephenson(Supra), junior books v. veitchi [1983] 1 AC 520, chukwuma v. niger biscuits ltd (1973) N.C.L.R. 382.

17. Okonkwo v. MDPDC (2001) 7 H NWLR (Pt. 711) 206.

18. hedley byrne v. heller and partners co [1964] AC 465, agbomagbe bank v. CFAO [1967] N.M.L.R. 173. page 31 note 12.

19. [1951] 1 All ER 1078.

20. [1950] UKHL 3.

21. Murphy v. Brentwood District Council [1991] UKHL 2, Latimer v. AEC, [1953] AC 643.

22. [1968] 2 WLR 422.

23. [1962] 1 WLR 295.

24. Mcghee V National Coal Board [1973] 1 WLR 1.

25. [1970] AC 467.

26. [2002] UKHL 22.

27. [2006] UKHL 20.

28. [2005] 2 WLR 268.

29. [1921] 3 KB 560.

30. [1961] AC 388.

31. [1963] UKHL 31.

32. Doughty V. Turner Manufacturing co ltd [1964] 1 QB 518.

33. [1962] 2 QB 405.

34. [1975] 1 WLR 1411.


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