Negligence

From a practical point of view, negligence is the most important and dynamic of all torts. Not every act of carelessness or negligence is actionable under the tort of negligence. LORD WRIGHT reasoning in this view in LOCHGELLY IRON & COAL CO V. MCMULLAN explained negligence thus; "in strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission. It properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing"

And in Odinaka V. Moghalu, Akpata JSC summed up negligence thus;

negligence is the omission to do something which a reasonable man under similar circumstances would do, or the doing of something which a reasonable and prudent man would not do.

The tort of negligence may therefore be defined broadly as the breach of a legal duty to take care which results in damage undesired by the defendant, to the plaintiff.

Negligence in torts means omission to do something which a reasonable man would do or do something which a reasonable man wouldn’t do. Negligence is the breach of a legal duty to take care which result in damage underserved by the defendant to the plaintiff. This unlike intentional tort where the defendant desired the consequences. Here it is undeserved damage to the plaintiff.

There are 3 elements to the tort:

1. A duty of care owed by the defendant to the plaintiff;
2. A breach of that duty by the defendant; and
3. Damage to the plaintiff resulting from the breach.

Duty of care

The development of this tort is categorized into 3 phases. The first phase was when negligence was merely a component of other torts. The second phase when Negligence develop into action on the cases and this saw the beginning of negligence as an independence tort. The third phase was from the decision of Donoghue v Stevenson. In this case, Negligence was fully recognized as an independent tort capable of extension into new category. The first question to be determined in any action for negligence is whether the defendant owed a duty of care to the plaintiff. In general, a duty of care will be owed when whether in the circumstances it is foreseeable that if the defendant does not exercise due care, the plaintiff will be harmed. Where a person does not owe a duty of care, he is free to be as negligent as he pleases.

LORD ESHER MR explained it thus, in LE LIEVRE V. GOULD “a man is entitled to be as negligent as he pleases towards the whole world, if he owes no duty to them.”

In simple words, a duty of care means the duty a person owes in law to take care, so that his actions or omissions do not injure another person. The concept of duty of care, when it is owed and when liability will attach for its breach was established in the case of Donoghue V. Stevenson.

In Donoghue v Stevenson, a manufacturer of Ginger Beer sold his product to a retailer, the retailer resold it to a lady who bought it for a friend of hers who was the plaintiff in the case. The plaintiff had consume most of the ginger beer when she noticed the decomposed remains of a snail in the beer. She became so sick that she had to be hospitalized and sued the manufacturer for damages in respect of her injury. The manufacturer claimed that there was no contractual relationship between it and the consumer and for that reason the plaintiff is not entitled to an action.

LORD ATKIN made a definition of the duty of care, when it existed and to whom it could be owed. The foreseeability test was laid down in the rule and it is known as “the neighbourhood principle”. He said in his famous dictum that;

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 acts that I ought 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

In the case of Heaven V. Pender, BRETT MR explained when a duty of care existed as follows;

whenever one person I by circumstance placed in such a situation with regard to another, that everyone of ordinary sense who did not think, would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the person or property of the other, a duty rises to use ordinary care and skill to avoid such danger.

In the Heaven V. Pender case, the defendant dock owner made a stage outside a ship on the dock under a contract with the ship-owner to paint outside of the ship, using the stage. The plaintiff, painter who went on stage to paint the ship. However, one of the ropes by which the stage was slung, being unfit for use when it was supplied by the defendant broke, and the plaintiff fell down to the dock and was injured. The English Court of Appeal held that the defendant was liable in the tort of negligence. The defendant dock owner, was under an obligation to the plaintiff to take reasonable care that at the time he supplied the stage and the ropes, they were fit to be used and for negligence of this duty the defendant was liable to the plaintiff for the injury sustained.

The court may deny that a duty of care is owed, on the ground of policy. In Ashton V. Turner, it was held that a man who had been seriously injured by the careless driving of his friend whilst they were fleeing from the scene of a burglary which they had committed, was owed no duty of care by the friend and could not therefore recover in negligence. The duty of care was denied based on the assertion of Ecobank J. that:

The law… in certain circumstances may not recognise the existence of a duty of care by one participant in a crime to another participant in the same crime, in relation to act done in connection with the commission of that crime.

In order to establish that he has a good cause of action in negligence, it is not sufficient for the plaintiff to show the existence of circumstances which gives rise to a national duty of care to him, and he can establish this only by showing that the harm suffered by him was the reasonable foreseeable consequence of the defendant’s conduct. In other words, negligence in the air or towards another person is not enough; the plaintiff cannot build a wrong to someone else.

Thus, for example where a meter cyclist carelessly collides with a car, he wll be liable to the owner for any damage caused, since he owes a duty of care to all road users which are within the foreseeable range of impact, and whom he could reasonably foresee would be harmed by his carelessness but will not be liable for the shock and consequent miscarriage suffered by a pregnant woman standing 15 yards away who does not see the accident but merely hears the crash and sees blood on the road afterwards, since a duty of care, “only arises towards these individuals to whom it may reasonably be anticipated that they will be affected by the act which constitutes the alleged branch”.

The importance of the decision in Donoghue v. Stevenson are as follows;

1. It establish negligence as a separate tort.
2. It establish that the existence of contract, a privity of contract is irrelevant for a successful claim in negligence.
3. It established that a claim for negligence will succeed if the plaintiff proves the elements of negligence which are; duty care, breach of duty of care and damage.
4. It established that there is a duty of care if the neighbourhood principle applies.

The neighbourhood principle which is based on the biblical story of the Good Samaritan means that there is a duty of care on us, whenever lack of care in our conduct will cause injury to any person anywhere in the world. The neighbourhood principle is also known as the doctrine of proximity or nearness. Accordingly, any person who will be injured by our conduct is near, or proximate to us and he is our neighbour.

The manufacturer of goods or products owes a duty of care to his consumers and he may be liable for breach of duty in the tort of negligence.

In Ibekandu v. Ike, the plaintiff respondent was walking by the side of the highway, when Toyota Hiace bus driven by the defendant appellant ran into him. He sustained injuries on his leg which was amputated. He sued for damages for personal injuries. On appeal, the Supreme Court held that the defendant appellant was negligent and was liable to the plaintiff in damages.

In Black v. Fife Loal Co. Ltd. the husband of the plaintiff widow was killed by an outbreak of poisonous gas in the coaline of the defendant company who were his employers. In an action for damages, the court held that the defendant company was liable for the negligence of its servants and their failure to comply with the rules prescribed for safety under the English Mines Act.

In Spartan Steel Alloys Ltd v. Martin and Co. Ltd, the defendant negligently damaged a cable belonging to the electric power authority, whereby electricity supply to the plaintiff’s nearby steel factory was cut off during production and consequently the plaintiff suffered loss of profit. The plaintiff sued the defendants for negligence and for damages. The court held that the defendant was not liable for loss of profit due to the stoppage of still production.

Standard of care

Generally, the standard of care that is required of a person is that which is expected of a reasonable man in his shoes. It is the standard of care that would be exercised by a reasonable man who is confronted by the same circumstances under consideration. It is the standard of care an ordinary prudent man in his shoes would show. This test of determining what a reasonable man who was put in his position would have done is an objective test. When compared, if a reasonable man would have done what the defendant exhibited sub-standard care than a reasonably man would have done, then he is liable for negligence.

In the words of Baron Alderson in Blyth v Birmingham Water Works;

Negligence is the omission to do something which a reasonable man guided upon these considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.

Who is the reasonable man?

In simple words, a reasonable man is an adult of normal intelligence, with average knowledge, and common sense in every day matters. The reasonable man has been defined in England as the “man in the Clapham Omnibus” and so forth.

In Nigeria, the reasonable man was defined severally by ESO JSC in the case of Adigun v. AG Oyo State as:

1. The pleasant housewife shopping for a meal in sand grouse market.
2. The ordinary worker in Kano City.
3. The plain woman in Okrika dress.

...It is what this reasonable “man” sitting as an impartial observer, thinks… that would matter.

Breach of duty

Having decided that a duty of care was owed to the plaintiff in the particular circumstances, the court’s next task is to determine whether the dependant was in breach of such duty. This is the question which, in practice, occupies most of the court’s time. In deciding the question, the court considers whether or not a reasonable man placed in the defendant’s position, would have acted as the defendant did.

In deciding what a reasonable man would have done in the circumstances and in assessing the standard of care expected of the defendant, the court may take into account what may be called the risk factor. This has 5 elements.

1. The likelihood of harm the conduct poses.
2. The seriousness of injury that may arise.
3. The relevance of utility of the defendant’s activity.
4. The cost and practicability of safety measure; and
5. Sometimes the amount of knowledge presently available to humanity on the issue in question.

1. The likelihood of harm the conduct poses

The greater the likelihood that the defendant’s conduct will accuse harm, the greater the amount of caution required of him. In Lord Wright’s words: “The degree of care which the duty involves must be proportioned to the degree of risk involved if the duty of care should not be fulfilled.”

This may be illustrated by comparing 2 cases. In Bolon v. Stone, the plaintiff was struck and injured by a cricket ball as he was walking along a public road adjacent to a cricket ground. The plaintiff contended that the defendant, who was in charge of the ground, had been negligent in failing to take precautions to ensure that cricket balls did not escape from the ground and injure passers-by but the court held that, taking into account such factors as the distance of the pitch from the road, the presence of a 7 foot high fence, and the frequency with which balls had escaped previously, the likelihood of the harm to passers by was so slight that the defendant had not been negligent in allowing cricket to be played without having taken further precautions such as raising the weight of the fence.

In Hilder v. Associated Portland Cement Manufacturers, on the other hand, where the plaintiff, whilst riding his motorcycle along the road, crashed and sustained injuries after being struck by a football kicked from the defendant’s adjacent land where children were in the habit of playing, the defendant was held negligent in having failed to take precautions to prevent footballs from being tricked onto the road, since in the circumstances, the likelihood of injury to passers-by was considerable.

2. The seriousness of the injury that may arise

The gravity of the consequences if an accident were to occur must also be taken into account. The classic example is Paris v. Stepney Borough Council. There the defendants employed the plaintiff as a mechanic in their maintenance department.

Although they knew that he had only one good eye, they did not provide him with goggles for his work, while he was attempting to remove a part from underneath a vehicle, a piece of metal flew into his good eye and he was blinded.

It was held that the defendants had been negligent is not providing this particular workman with goggles, since they must have been aware of the gravity of the consequences if he were to suffer an injury to his one good eye, though it was pointed out that the likelihood of injury would not have been sufficient to require the provision of goggles in the case of a two-eyed workman.

3. The relevance of utility of the defendant's activity

The seriousness of the risk created by the defendant’s activity and where they defendant’s conduct has great social value, he may be justified in exposing others to risks which would not otherwise be justifiable. For instance, “if all the trains in his country were restricted to a speed of 5 miles in 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. Thus, the driver of an ambulance or fire engine answering an emergency is entitled to proceed at a speed and take some traffic risks which would be unjustifiable. For instance, it was held in Beim v. Goyer that an ordinary motorist, a policeman, in carrying out his duty to apprehend criminals may be justified in resorting to use of firearms, thereby exposing innocent bystanders to some risk. In all cases, one must balance the risk against the end to be achieved, and “the commercial end to make profit is very different from the human and to save life or limbs.” - WATT v. HERTFORDSHIRE.

4. The cost and pragmatism of the measure to avoid the harm

Another relevant question is how costly and practicable it would have been for the defendant to have taken precautions to eliminate or minimize the risk, for in every case of foreseeable risk, it is a matter of balancing the risk against the measures necessary to eliminate it and a reasonable man would only neglect a risk of small magnitude if he had some valid reason for doing so, e.g. that it would involve considerable expense to eliminate the risk.

Thus, where a factory floor had become slippery after, and the occupiers - LATHER v. A.E. LTD did everything possible to make the floor safe but nevertheless a workman slipped on it and sustained injuries, the court held that the occupiers had not been negligent. The only other possible step they could have taken would have been to close the factory, and the risk of harm created by the slippery floor was not in the opinion of the court, so great as to require such a costly and drastic step.

5. The amount of knowledge currently available regarding the activity

Where the matter or activity under consideration is on the fringes of science, and the amount of knowledge currently available to man on the matter does not avail an answer to the risk posed, then if society for reasons of utility and so form, permits such activity to continue, a defendant would have discharged his duty of care if the amount of care he exercised, was in consonance with the level of knowledge available to humanity on the matter.

In determining whether a defendant’s action is up to the standard of care expected of a person in his shoes, the court usually considers the;

1. Intelligence;
2. Knowledge; and
3. The skill of the defendant in question.

1. Intelligence

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 judgment” if his best is below that to be expected of a man of ordinary intelligence. Thus, it is no defence that the particular defendant had unusually show reactions or lower than average intelligence or possessing unusually quick reactions will not be adjudged by his own high standards, and will not be liable for having failed to use those exceptional qualities.

2. Knowledge

A man is expected to have that degree of common sense or knowledge of everyday things which a normal adult would possess. Also, a reasonable person is expected to have notice of what a reasonable person in his circumstance should have noticed. In Glasgow Corp v. Tayloy, LORD SUMNER stated he position of the law thus:

A measure of care appropriate to the inability or disability of those who are immature, or feeble in mind or body is due from others, who know or ought to anticipate the presence of such persons, within the scope and hazard of their own operations.

In Yachuk v. Oliver Blans C. Ltd, a boy of a persuaded a garage attendant to let him have a tin of petrol, by a false, tale that his mother’s car had run out of petrol some distance from the garage. The boy poured it over some wood and set it ablaze. The fire caused an explosion severely injuring the boy. The Privy Council held that it was negligence on the part of the garage attendant to entrust a child with such a dangerous thing as petrol. A reduction of damages would not be made on the ground of the contributory negligence of the child.

3. Skill

A person who holds himself out as having a certain skill either in relation to the public generally e.g. a car driver or in relation to a person for whom he is performing a service e.g. a doctor will be expected to show the average amount of competence normally possessed by persons doing that kind of work, and he will be liable in negligence if he falls short of such standard.

Thus, for example, a surgeon performing an operation is expected to display the amount of care and skill usually expected of a normal, competent number of his profession, whereas a jeweller who pierces ears for earrings is only expected to display the amount of skill of a normal jeweller and not that of a surgeon.

Somewhat surprisingly, however, it has been held that a learner driver must comply with the same objective and impersonal standard as any other driver. This decision may perhaps be explained on the ground that a car is a potentially lethal weapon, and public policy requires that the strictest possible standards of care be maintained, even by learners.

Exceptions to the standard of care of the rasonable man

1. Children; and
2. Mentally ill and disabled persons.

The amount of care expected of children

Children are usually treated as a class of their own. Based on authorities in this area, the degree or standard of care required of a child is the standard of care expected of a child of his age. It is the degree of care expected of a reasonable child in the shoes of the child in question. The test is objective and not subjective. Furthermore, the general rule is that the actions and omissions of negligence of children is not usually treated as contributory negligence. However, it appears that each case may be decided based on its facts.

The amount of care expected of disabled persons

The general rule is that the standard of care to be expected of a person who is subject to incapacity or infirmity is the degree of care to be expected from an average person who is subject to the same infirmity. The test is objective.

In Roberts v. Ramsbottom, the defendant had a minor stroke before driving off in his car. He was not aware that what he had suffered was a stroke, although he agreed that he felt somehow dizzy. In the course of his journey, he collided with and injured the plaintiff. The defendant was held to be liable as he knew of his disabling health condition before he went on the road.

Proof of negligence and res ipsa loquitor

The burden of proving negligence (i.e. that the defendant was in breach of the duty of care he owned to the plaintiff) always lies on the plaintiff whereas, in actions of trespass it is for the defendant to exonerate himself by showing that the injury to the plaintiff was an inevitable accident and not due to any wilfulness or carelessness on his part, in the tort of negligence it is for the person who suffers the injury to prove affirmatively that it was caused by the defendant’s carelessness.

Res ipsa loquitor is a Latin phrase which means “the facts speak for themselves”. The term is used to refer or describe anything that is plain, clear or self explanatory and needs no further explanation, proof or clarification. The principle is a rule of evidence and does not apply when the facts of what happened are sufficiently known, but the rule applies only when there is no explanation. The principle aims at assisting the plaintiff in establishing his claim for negligence against the defendant.

The most popular statement of when Res ipsa loquitor is applicable was made in Scott v. London & St. katherine’s Dock Co. In this case, the plaintiff, a custom officer was passing in front of the defendant’s company’s warehouse when he was injured by bags of sugar which fell on him from the upper floor. The plaintiff relied on the principle of Res ipsa loquitor. ERLE CJ explained when the principle will apply to a case thus,

where the thing is shown to be under the management of the defendant, or his servants, and the accident is such that, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, if the absence of explanation by the defendant, hat the accident arose from want of care.

Where Res ipsa loquitor is successfully invoked, the effect if,

1. To afford prima facie evidence of negligence, so that the defendant cannot succeed in a submission of “no case to answer” and
2. To shift the onus on the defendant to show either that the accident was due to a specific cause which did not involve negligence on his part, or that he had used reasonably care in the matter.

Thus, Adefarasin Ag. C.J. pointed out:

The maxim is no more than a rule of evidence affecting onus. It is based on common sense, and its purpose is to enable justice to be done when the facts bearing on causation and on the care exercised by the defendant are at the outset unknown to the plaintiff and are ought to be within the knowledge of the defendant.

Requirements for the application of res ipsa loquitor

1. There must be an absence of explanation of the occurrence by the plaintiff.
2. The thing that caused the harm must have been under the management or control of the defendant or his servant; and
3. The accident or harm must be one which in the ordinary course of things, does not happen without negligence on the part of the defendant.

1. The absence of explanation by the plaintiff

Whenever the court is able to find out from the evidence adduced how and why the occurrence or injury took place, then there is no need for the application of res ipsa loquitor and the presumption of negligence.

In Barkway v. South Wales Transport Co, tyre of as omnibus burst and the burst and the bus mounted the pavement and fell down a nearby embankments. The court held that the doctrine of Res ipsa loquitor was not applicable, as evidence of the circumstances of the accident has been given to the court and the court was satisfied that the system of tyre inspection in the garage of the defendant had been negligent. The defendant transport company was liable for negligence based on the evidence given before the court.

Where a plaintiff is only liable to present a partial evidence of how and why the accident happened, he is not prevented from recycling on Res ipsa loquitor.

2. The thing was under the management or control of the defendant or his servant

Where the thing that caused the injury was not under the management or control of the defendant or his servant, then the doctrine is inapplicable. The question whether or not the think that caused the harm was under the management or control of the defendant or his servant is to be decided based on the circumstances of each case. A common example of a person having the management or control is a driver. A driver is presumed to have control of his vehicle and the surrounding circumstances to warrant the applicable rule in a case of negligent driving.

Also, where the thing caused injury is under the control of several servants of a defendant and the plaintiff cannot identify the particular servant that is responsible, for instance, during a surgery operation in hospital when a patient is under anaesthesia, the doctrine will still apply to make the defendant vicariously liable for the act of the unidentified servant.

3. The thing does not ordinarily happen without negligence by the defendant

The harm must be one that does not ordinarily happen if proper care is taken by the defendant. Thus, the accident or injury must be one, which in the ordinary course of things does not happen without negligence by the defendant. Negligence is readily presumed where human experience shows that the type of accident or injury does not usually happen unless the defendant has been negligent.

In Strabag construction Nig. Ltd. V. Ogarekpe, the plaintiff respondent technician was an employee of the defendant appellant company. While the plaintiff and two others were on top of a tower being installed at a considerable height, the crane on which they were hoisted up suddenly collapsed and they fell down suffering serious injuries. He sued for damages and pleaded res ipsa loquitor. The Court of Appeal held that the doctrine applied and that the appellant company was liable for negligence.

NB: The majority of Nigerian cases in which the doctrine of Res ipsa loquitor has been invoked concern read accident. A typical example is Ifeagwu v Tabansi Motors Ltd. Here, the plaintiff was sitting in his brother’s roadside shop at a village on the Onitsha-Enugu road when a petrol tanker enroute Enugu with 3000 gallons of petrol collided with a nearby electricity pole, overturned and burst into flames. The plaintiff was badly burnt in the inferno and her subsequently sued the defendants, as employees of the tanker driver, for negligence, relying on Res ipsa loquito. Arsene J held hat the doctrine applied.

In Kuti v Tugbobo, the plaintiff was injured when the lorry in which he was travelling from Oloto to Ijebu-Ode skidded on a wet road, crashed into the pillar of a bridge, and overturned. The trial judge held that res ipsa loquitor applied, and this finding was upheld by the Supreme Court.

Damage caused by the breach

Having established that the defendant owed a duty of cane to him and that the defendant was in breach of that duty, the plaintiff must then prove that he has suffered damage for which the defendant is liable in law. There are 2 aspects to this requirement, namely;

1. Causation in fact
2. Remoteness of damage in law

1. Causation in fact

The first question to be answered is: “Did the defendant’s breach of duty in fact cause the damage?” It is only when this question can be answered in the affirmative that the defendant may be liable to the plaintiff. A useful test which is often employed is the “but- for” test: that is, if the damage would not have happened but for the defendant’s negligent act. The claimant must prove the existence of a causal link on the balance of probabilities, which is taken to mean a likelihood of more than 50%. If the court finds that it was as likely as not that the injury would have occurred without the defendant’s negligence, the action will fail even if there is an admission of carelessness.

The operation of the “but-for test” is well illustrated by Barnett v. Chelsea and Kensington Hospital Management Committee. In this case, the plaintiff’s husband, after drinking some tea, experienced persistent vomiting for 3 hours. Together with two other men who had also drank the tea and were similarly affected. He went late that night to the casualty department of the defendant’s hospital where a nurse contacted the casualty officer, Dr. B. by telephone, telling him of the man’s symptoms Dr. B, who was himself tired and unwell, sent a message to the man through the nurse to the effect that they should go home to bed and consult their own doctors the following morning. Some hours later, the plaintiff’s husband died of arsenical poisoning and the coroner’s verdict was one of murder by a person or persons unknown. In a subsequent action for negligence brought by the plaintiff against the hospital authority as employers of Dr. B. it was held that, in failing to examine the deceased, Dr. B. was guilty of a breach of his duty of care, but this breach could not be said to have been a cause of the death because even if the deceased had been examined and treated with proper care, he would in all probability have died anyway. It could not therefore be said that “but for the doctor’s negligence the deceased would have lived.”

A more severe application of the ‘but-for’ test occurred in McWilliams v. Sir. Williams Arrol & Co. Ltd., there, a steel erector was killed when he fell from a building on which he was working. Had he been wearing a safety harness, he would not have fallen. The defendants, his employers were under a statutory duty to provide safety harnesses for all their employers working on high building and they were in breach of that duty by failing to provide them. Nevertheless, they were held not liable since they proved that on previous occasions, when safety harnesses had been provided, the plaintiff had never bothered to wear one. Thus, it could not be said that the failure to provide a harness was a cause of the death.

However, the test often runs into hitches, where for instance, the wrong of the defendant is followed by another wrong which does not substantially alter the initial scenario, but does add to it. See Baker v. Willoughby, here, as a result of the defendant’s negligence, the claimant suffered an injury to his leg. Damages for this injury had been fully assessed. However, before trial was concluded, armed robbers shot the claimant several times on the same leg resulting in the amputation of the leg. Ordinary justice would have adequately compensated the claimant since they would be held only accountable for injury to an already damaged leg. The original tortfeasor had to bear full responsibility.

Again, where there is more than one wrong doer each contributing fully or substantially to the case of the claimant’s injury

In Fairchild v. Glenhaven Funeral Services Ltd, the House of Lords had to qualify the ‘but for’ test to allow recovery in a case where it was impossible on the state of scientific evidence to determine which one or more of several employers, all admittedly in breach of duty, caused the claimant to suffer a fatal illness.

According to Markesinis and Deakin, “these cases suggest that although the ‘but for’ test is based on notions of the limits of individual responsibility, and in particular on the precept that the defendant should not be liable for a loss which he personally and not cause, such a principle may come into conflict with the aim of ensuring that the volition of tortuous conduct is fully compensated for losses caused by fault.

In the same vein, Lord Nicholls notes, “even the sophisticated versions of the ‘but-for’ test cannot be expected to set out a formula whose mechanical application will provide infallible threshold guidance on causal connection for every tort in every circumstance. In particular, the ‘but-for’ test cannot be over-exclusionary.

We also have a probabilistic cause, here, we see a situation where the court is faced with several probable causes of the claimant’s injury of which the defendant’s action is one. What should be done? Clearly one of the probable causes is responsible for the claimant’s damage but there is no certainty which one is actually the cause.

In McGlee v. National Coal Board, the plaintiff contracted dermatitis after working in a Kiln where he was exposed as cement dust. The defendants were not faulted for this as this was incidental to his contract of employment.

However, the employers were in breach of their common law duty of care in failing to provide washing facilities at the place of work. However, medical evidence about the causes of dermatitis was such that it was not possible to say that had washing facilities been provide the pursuer would have escaped the disease. But the defendant’s failure had substantially contributed to the claimant’s injury. The House Lords held that the claimants was entitled to succeed.

In Fairchild, the result of the case that all contributors were made to bear responsibility equally rather than send the claimant away. However, the position varied in Barker v Corus, and proportionate liability imposed in relation to the extent of the defendant’s liability imposed in relation to the extent of the defendant’s liability.

There is also the question of loss of a chance for recovery which appears not to be receiving favourable consideration loss of enhances cases appear to be treated as a failure to prove causation.

2. Remoteness of damage

This is known as concession in law. The question of remoteness arises only after concluding the question in fact. The essence of concession in law is to avoid the situation where the defendant liable ad infinitum (indefinitely); for all the consequences of the wrongful conduct. In certain cases, consequences of the defendant’s tortuous conduct would be considered too remote if his wrongdoing to impose on him responsibilities for those consequences. The court, therefore, imposes the cut-off point beyond which the damage is said to be too remote.

An independent event which occurred after breach of duty and which contributed 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. Where this occurs, the event is void to be novus actus intervenes.

In Monye v. Diurie, the plaintiff was knocked down as a result of careless driving of a lorry by the defendant. He suffered injury to his leg and was rushed to the hospital almost immediately. However, before completion of his treatment and against the doctor’s medical advice, he discharged himself only to return after two days. The leg was infected and consequently it was amputated.

A claim for the loss of the leg brought against the defendant by the plaintiff failed because, though, it was foreseeable that the plaintiff would as a result of the accident sustained injury. It was not foreseeable that the defendant would against medical advice leave the hospital for two days leading to infection that necessitated the amputation of his leg. This was held to be too remote and the defendant was not held liable.