QUESTION 1

Negligence is defined as the breach of a legal duty to take care which results in damage,
undesired by the defendant to the plaintiff. The elements needed for this tort include: the
existence of a duty of care to a person, the breach of that duty which causes damage to the
person to whom the duty is owed. Additionally, negligence is only actionable if actual
damage is proved and cannot lay for nominal damages as in the case of Sata v Zambia
Bottlers Ltd [2003] SCZ No.1 where the learned trial Judge took the view that as the
appellant and his children did not consume the adulterated drink and did not suffer injury, the
action could not succeed.

The existence of a duty of care owed to the plaintiff by the defendant was first established in
the case of Donoghue v Stevenson [1982] AC 582 in which a man bought from a retailer a
bottle of ginger beer manufactured by the defendant. The man gave the bottle to his lady
friend who became ill from drinking the contents. The bottle contained the decomposed
remains of a snail. The bottle was opaque so that the noxious substance could not have been
seen and was not discovered until the lady was refilling the glass. The consumer sued the
manufacturer in negligence. It was held that the manufacturer was liable to the consumer.
Because even though there was no contractual relation between the consumer and the retailer
as she did not purchase the drink there was a duty of care under the law of torts. wherein
manufacturers have a duty to take care for their consumers. Furthermore, Lord Atkin
established the neighbour principle which provides that “You must take reasonable care to
avoid acts or omissions which you can reasonably foresee would be likely to injure your
neighbour.” For present purposes, the House of Lords in Caparo v Dickman [1990] 2 AC 605
provided that the three test rule must be satisfied in order to impose a duty of care.

The first rule is that of reasonable foreseeability as illustrated in Bourhill v Young [1943] AC
92 where the appellant after exiting from the tramcar, a motor cyclist passed between the near
side of the tramcar and the footway and, not having seen a motor car turning into the cross
road by reason of his view being obscured by the tramcar, he collided with the car, was
thrown off his motorcycle, fell on his head and was killed. The appellant saw nothing of the
accident but merely heard the noise of the impact of the two vehicles. After the body of the
motor cyclist had been removed, she approached the spot and saw blood on the roadway. The
injuries alleged to have been sustained by the appellant were that she wrenched and injured
her back by being startled by the noise of the collision and that she was thrown into a state of
terror and sustained a severe shock to her nervous system, though there was no reasonable
fear of immediate bodily injury to her. She was about 8 months pregnant at the time and gave
birth to a still-born child. The driver of the motor-cycle was admittedly negligent as against
the driver of the motor car, but the question was whether he owed any duty to the appellant in
that he ought, as a reasonable man, to have contemplated the likelihood of injury to her in the
circumstances. The question to be decided was one of liability and not one of remoteness of
damage. In the circumstances of this case the motor cyclist owed no duty to the appellant
since he could not be held to have reasonably foreseen the likelihood that the appellant,
placed as she was, could be affected by his negligent act.

As regards proximity, Lord Oliver in Murphy v Brentwood [1991] 1 AC 398 espoused that
sufficient relationship of proximity between the plaintiff and defendant is an essential
ingredient in every case. Additionally, the rule of fair, just and reasonableness to impose a
duty of care was explained in Hill v Chief Constable of W Yorkshire [1943] AC 92 where it
was held that no duty was owed on the basis of public policy reasons and proximity.

Subsequently, the second element is that of breach of duty of care by the defendant. If a duty
of care is established as a matter of law, whether or not defendant was in breach of that duty
is a matter decided by the judge on the facts of the care though the standard required, that is,
that of acting as a reasonable man is a legal standard. The concern is with how much care the
defendant must take in order to discharge their duty of care this, they will do if they take
reasonable care. This is an objective test As stated by Baron Alderson in Blyth v Birmingham
water works Co. [1856] 11 Ex 781, negligence is the commission to something which a
reasonable man guided upon those conditions which ordinarily regulate the conduct of human
affairs would do, or doing something which a prudent and reasonable man would not do, the
care which is reasonable man would show varies with the circumstance.

Some relevant factor to determine the standard of care may be the magnitude of the
foreseeable risk. In Latimer v A.E.C [1952] 2 QB 701, a thunderstorm flooded the
defendant’s factory, making the floor slippery. The defendants did all they could to clear the
water and make the factory safe. The plaintiff nevertheless slipped and was injured. The
plaintiff sued for negligence but his claim failed as there was the magnitude of foreseeing the
risk of the plaintiff slipping and falling was insufficient. In establishing this element, the
court often uses the reasonable man test. This is an objective test which considers the
standard based on what the reasonable man would have foreseen in the circumstances.
The other element of negligence is that of causation, which is proof that the defendant’s
breach caused the damage to the plaintiff. Firstly, one must consider whether the defendant
factually caused damage by applying the “but for” test. This was established in Barnett v.
Chelsea and Kensington Hospital [1969] 1 QB 428 where it was held that even if the doctor
had examined the deceased, he would still have died. Secondly, it had to be determined that
the defendant legally caused the damage by ensuring that there was no novus actus
interveniens or intervening acts that break the chain of causation. This was established in the
case of Wright v. Lodge [1993] 4 ALL ER 299 in which the lorry’s driver was regarded as
the true cause of the plaintiff’s injury as driving recklessly is foreseeable.

Despite proof of causal link, the claimant may fail to recover if damage is said to be too
remote a consequence of the breach. Therefore, reasonable foreseeability is considered as
illustrated in the case of Wagon Mound [1961] AC 388 whereby the trial judge agreed that
some damage was possibly foreseeable, but fire was not hence, there was no liability.

If this criterion is followed, the claimant is entitled full compensation.

DEFENCES (QUESTION 2)

2. EX TURPI CAUSA NON ORITUR ACTIO (ILLEGALITY)

Where the claimant’s case is connected with the fact that they have committed a criminal act,
the defense of illegality, sometimes known as ex turpi causa) may apply. The basic reason for
this defense is public policy: many people would find it offensive that a person committing a
crime could sue for damages if they were injured as a result of doing so. An example of the
defense in use is Ashton v Turner [1981] QB 137, where both claimant and defendant had
taken part in a burglary. The defendant had the job of driving the getaway car, but did it so
badly that the claimant was injured. The claimant attempted to sue his co-burglar for the
injury, but the court held that the defense of illegality could apply to prevent the claim.
Similarly, in Pitts v Hunt [1991] 3 All ER 344, CA, the claimant was prevented from
claiming for injuries caused when the defendant’s drunken driving caused an accident,
because he had encouraged the defendant to drive dangerously. The court held that where one
person was injured as the result of the actions of another while they were engaged in a joint
illegal enterprise the issue whether the injured party was entitled to claim against the other
person or whether his claim was barred by the maxim ex turpi causa non oritur action.
CONTRIBUTORY NEGLIGENCE

Sometimes when an accident happens, both parties have been negligent and this raises the
doctrine of contributory negligence. To prove contributory negligence it is necessary for the
defendant to show that the plaintiff owed him a duty of care, only that he failed to take
reasonable care for his own safety. In other words contributory negligence is used by the
defendant to reduce the damages he pays to the claimant. By virtue of the law reform
(contributory Negligence) Act where a person suffers damage partly as a result of their own
fault, and partly due to the fault of another person’s fault, the damages recoverable will be
reduced according to their share of responsibility.

An example of the application of this defence can be seen in Baker v Willoughby [1969]
[1970] AC 467, the case discussed earlier, in which the claimant was run over by the
defendant and then, in a separate incident, shot by a robber. In the first incident he was
crossing the road; the defendant was driving carelessly, but the claimant had had a clear view
of the road for the last 200 yards travelled by the car, and had taken no evasive action. The
Court of Appeal found that he was 50 per cent contributory negligent – in other words, that
both parties were equally to blame. The result was that the claimant received 50 per cent of
the damages he would have got if there had been no contributory negligence. A person may
contribute to the damage they suffer although they are not to blame for the accident.

In Jones v Livox Quarries [1952] 2 QB 608, the claimant was riding on the back of a vehicle
called a traxcavator at the quarry where he worked. The vehicle was not designed to carry
passengers in this way. The claimant was injured when another vehicle drove into the back of
the traxcavator. He argued that his contributory negligence amounted only to taking the risk
that he might fall off the back of the traxcavator, but the court held that being hit from behind
by another vehicle was also within the range of possible risks arising from riding on the
traxcavator, and the claimant’s negligence in doing so had contributed to his injury.

In O’Connell v Jackson [1971] 3 ALL E.R., the defendant, a car driver, knocked the plaintiff
off his motor cycle, the accident being entirely the defendant’s fault. The plaintiff suffered
severe head injuries which the evidence showed would have been less serious if he had been
wearing a crash helmet. It was held that the plaintiff’s dam ages would be reduced by 15%.
Similarly in froom v butcher [1978] 3 ALL E.R. a failure by a plaintiff to wear a seat belt in a
motor car reduced damages on the grounds of contributory negligence.