It is important to note from the start that negligence could be the reason for a tort or a criminal action. It is however the aim of this article to deal with negligence in tort. Negligence is a fairly modern tort. It has become very important because of the complex nature of society and the numerous interactions between individuals. There could be negligence where the driver of a motor vehicle runs into another vehicle, injuring persons and damaging property; or where a doctor performs an operation carelessly so as to cause serious injury to an individual; or a manufacturer produces a defective product that causes injury to the purchaser.
Three judges in England during the late 1800s and the early 1900s gave shape and form to the law that is presently used to determine cases of negligence. In 1856, Alderson B in Blyth v Birmingham Waterworks Co. thought that negligence was doing something or omitting to do something that a prudent and reasonable person would do. In 1932, Lord Atkin provided another dimension to the law in his famous “neighbour principle”. In 1934,, Lord Wright in Lochgelly Iron and Coal Co v Mc.Mullan went a step further and put forward a three dimensional test which involves (1) a duty of care to the claimant, (2) breach of that duty by the defendant and (3) damages caused to the claimant. In a court of law these three elements must be proven for a claimant to be successful in proving negligence.
Lord Atkin’s celebrated case of Donohue v Stevenson (1934) provides distinctive guidance on the duty of care that we all owe to persons with whom we come into close contact or who are directly affected by our acts. It is the product that you buy from the company that establishes the duty of manufacturer and consumer. In the case that he considered, the plaintiff bought ginger beer in a dark opaque glass bottle from a retailer. The plaintiff had already consumed a glass of the beer and was pouring another drink into a glass when she noticed the decomposed remains of a snail floating from the bottle. She became sick afterwards and sued the manufacture of the drink for negligence.
The manufacture has a duty to provide a product that is clean and healthy for his consumers. The honourable judge in that case also made it quite clear that we should take ‘reasonable care to avoid acts or omissions which you can reasonably foresee that would be likely to injure your neighbour.” (Donoghue v Stevenson, 1934).
In pleading your case your lawyer must convince the court that there is a duty of care owed to you by the defendant. There have been many recognized instances where the duty of care arises.
Professional people have a duty of care to persons with whom they have a professional relation; the driver of a vehicle has a duty of care to his passenger; employers to their employees and occupiers of property to visitors or even the trespasser.
You may wonder what duty could one have to a trespasser, but there is that duty of common humanity which is expected of you so that you do not leave an open hole on your premises so that anyone could stumble into and you do not leave a live electric wire on your property which could cause death to anyone who happens to become entangled in it. Take care! Remember others when you act. Harm can come if you are not careful. Don’t make your anger result in harm to your neighbour.
Ada Johnson is a solicitor and barrister-at-law. E-mail address is: [email protected]