NEGLIGENCE: breach of legal duty to take care which results in damage to claimant though undesired Lochgelly Iron & Coal Co. V.McMullan (1934) A.C. 1 at P. 25not all carelessness is actionable. NOTE : DUTY, BREACH,DAMAGES Onasanya V. Western Nigeria Marketing Board (1975) 5 CCHCJ825, at p. 835, Gomes J. Adewale V. Sowale (1972) 6CCHCJ70at p. 73.

DUTY OF CARE: Donoghue v Stevenson(1932) AC 562 at592 Lord Atkin The rule that you are to love your neighbour becomes, in law, you must not injure your neighbour; and the lawyers 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 acts that I ought reasonably to have them in contemplations as being so affected when I am directing my mind to the acts or ommissions which are called in question.

duty of care succeeds : Ashton V. Turner robbery In summary, to establish a good cause of action in negligence under duty of care the plaintiff must show that the Harm suffered by plaintiff or claimant was a reasonably foreseeable consequence of the defendant’s conduct and plaintiff must be able to prove that the negligence or carelessness is reasonably anticipated that he will be affected by the act which then constitutes an alleged breach of duty.

Breach of Duty: what would a reasonable man do? Blyth v.Birmingham ‘’ Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man will not do ‘’

The standard is objective The standard does not always reflect average behaviour Standard of care is objective: the question asked by the court is not: ‘’what could we expect this particular defendant to do in this circumstance? Rather, the question is: what could we expect a reasonable person to do?’’ Thus, a defendant who is unusually clumsy or slow-witted cannot succeed by arguing that his or her conduct amounts to an ‘’incompetent best’’. The defendant will be judged according to the best efforts of the hypothetical ‘’reasonable man’’. In case of Nettleship V. Weston[1971] 2 QB.691

Breach of Duty: the court considers what a reasonable man will do & standard of care Risk Factor elements are: likelihood of harm: ‘’the degree of care which the duty involves must be proportionate to the degree of risk involved if the duty of care should not be fulfilled’’. The Seriousness of Injury that is risked The gravity of consequence if an accident were to occur must also be taken into account. Paris V. Stepney Borough Council [1951] A.C.367 one eyed mechanic yet no goggles provided

Hilder V. Associated Portland Cement Manufacturers Bolton V. Stone Hilder V. Associated Portland Cement Manufacturers Bolton V. Stone. Example of likelihood of harm was held negligent having failed to take precautions to prevent footballs from being kicked onto the road sine, in the circumstances, the likelihood of injury to passers-by was considerable; the distance of the pitch from the road, the presence of a seven foot high fence, and the frequency with which balls had escaped previously, the likelihood of harm to passers-by was so slight that the defendant had not been negligent in allowing cricket to play without having taken further precautions such as raising the height of the fence.

The seriousness of risk or utility of defendant’s activity The seriousness of risk or utility of defendant’s activity. the greater the social utility, non liability in negligence . Beim V. Goyer, a police man in apprehending criminals uses firearms thereby, exposing innocent bye standers to some risk is justifiable. However he is not entitled to ignore entirely the safety of bye standers, he must confine himself to measures which are reasonably necessary to effect his purpose. The driver of an ambulance or fire engine answering an emergency is entitled to proceed at a speed and take some traffic risks which will be unjustifiable for an ordinary motorist. It is important to note that the risk must be balanced against the end to be achieved.

The Cost and Practicability of measures to avoid the harm The court looks at the cost and practicability of the defendant to have explored precautions to eliminate or minimise the risk because, in every case of foreseeable risk, there is the need to balance the risk against the measures necessary to eliminate such risk. A reasonable man would ordinarily neglect a risk of small magnitude where he has a valid reason for doing so, and where it would involve considerable expense when eliminating the risk.

Latimer V. A.E.C.Ltd, [1952] 2 Q.B. 701 at p. 711. The floor of the defendant’s factory was flooded by an exceptionally heavy rainstorm. As a result an oily cooling mixture which was normally contained in a channel in the floor, mixed with flood waters. When the flood subsided, the floor was left in a slippery state. The defendant spread sawdust on the floor, but did not have enough sawdust to go round, so some areas were left untreated. The plaintiff who was working in an area which was left untreated with sawdust, was attempting to load a heavy barrel on to a trolly when he slipped and injured his ankle. The court held that the occupiers had not been negligent

Intelligence, Knowledge and Skill of the reasonable man. In determining whether the defendant in his actions came up to the standard of a reasonable man, the court will measure those actions against the conduct expected of a person of normal intelligence, and the defendant will not be excused for having acted ‘’to the best of his own judgement’’ if his ‘’best’’ is below that to be expected of a man of ordinary intelligence. defence that a defendant has unusually slow reactions or a lower than average intelligence or possessing unusually quick reactions will not be judged by his own high standards, and will not be liable for having failed to use those exceptional qualities.

Knowledge: certain degree of common sense e Knowledge: certain degree of common sense e.g smoking in a filling station or lighting fire near petrol when a defendant holds a particular position he will be expected to show the degree of knowledge normally expected of a person in that positon. In The Wagon Mound case, the privy council, took the view that ship owners were liable for the fire caused by discharging oil from their ship into Sydney Harbour, because their Chief engineer ought to have known that there was a huge risk of the oil catching fire. From this it is important for an employer to know the risks associated with the job and its environment and thereby put in place necesary facility to void such dangers.

Occupiers liability Lord Pearson defined an an occupier as a person having possession or control of the premises. ‘’The foundation of occupiers liability is occupational control, that is to say control associated with and arising from presence in and use of activity in the premises.’ any person who enters lawfully, i.e not a trespasser, will be a visitor for the purpose of the statute.

Common duty of care: a duty to take such care as in all the circumstances of the case it 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. The occupier has a duty to ensure that he takes reasonable safety precautions. Guidance as to standard of care required by statute : An occupier must be prepared for child visitors to be less careful than adults. An occupier is entitled to expect that a person in the exercise of his calling will appreciate and guard against any special risks ordinarily incidental to that calling.

Exceptions to occupiers liablity warning of existence of danger must be sufficient to enable the visitor to be reasonably safe. Where the injury is caused by the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier thought to be competent, the latter will not be liable agreement or otherwise with the visitor. For instance when a notice is pasted that anyone who enters the premises comes in at his own risk and should have no claim against occupier for damages or injury. Volenti non fit injuria and contributory negligence are valid defences to liability.

Liability to trespasser: British Railways Board V. Herrington an occupier owes a duty of ‘’common humanity’’ or a duty to act ‘’in accordance with common standards of civilized behaviour’’ This according to Lord Pearson means that ‘’if the presence of the trespasser is known to or reasonably to be anticipated the occupier, then the occupier has a duty to the trespasser, but it is a lower and less onerous duty than the one which the occupier owes a lawful visitor.

Bailment: a Bailee of goods owes a duty of care to the bailor to take proper care of the goods entrusted to his charge, whether the bailment is for reward or gratuitous whether for the benefit of the bailor or Bailee and irrespective of any contract between the parties. The most significant aspect of the duty of care in cases of bailment is that, contrary to the normal rule, the onus is on the Bailee to prove that any loss or damage to the goods bailed was not due to his negligence.