NAME: OJO ABDULRAHMON ADEDOTUN

COURSE: ELEMENT OF TORT

DEPARTMENT: ESTATE MANAGEMENT
COURSE CODE: PPL 221
MATRIC NUMBER: 190502009
LEVEL: 200

Question
1) Damage caused by the breach of duty of care
 Introduction
 Causation in facts
 Remoteness of damages
 Novus actus intervene
 Examples of duty of care (road users, manufactures, accident scenes,
manufacturer of chattels, negligent misstatement, economic loss, legal
practitioners, bailment, employers)

2) Defense to negligence
 Contributory negligence
 Volunti non-fit injuria
Answer
Before we can talk about damages caused by the breach of duty of care, we need to
talk about what brings about the damage which is ‘NEGLIGENCE’
1) What is Negligence?
In day-to-day life, the word ‘NEGLIGENCE’ means nothing else but carelessness.
In law of tort, Negligence is a legal concept that involve any actions that create an
unreasonable risk of harm, failure to exercise reasonable care, resulting in harm or
damages to another individual or property.
It also can be defined as harm caused by failing to act as a form of carelessness
possibly with extenuating circumstances.
Many Scholars as defined the word ‘NEGLIGENCE’ in different meaning some
are
According to Winfield and Jolowicz, “Negligence is the breach of a legal duty of
care by the plaintiff which results in undesired damages to the plaintiff”.
Also, in Blyth v. Birmingham water works company, ”Negligence was defined as
the omission to do something which a reasonable man would do or doing
something which a prudent or reasonable man would not do.
The core concept of negligence is that person should exercise reasonable care in
their actions, by taking account of the potential harm that they might foreseeably
cause to other individual or property. Negligence occurs as a result when an
individual or person fails to take necessary precaution to prevent foreseeable harm
to others.
Something must be established by anyone who want to sue in negligence. There
are what we call ELEMENT OF NEGLIGENCE. In order for a plaintiff to
establish a case of negligence in law of tort, they must establish three required
element. These element are;
 Duty of care
 Breach of duty of care
 Damage.
 Duty of care: A duty of care is legal concept or obligation in law of tort that
refers as to the responsibility that is imposed on an individual, or one party
owes to another party or individual to act reasonably or to follow a level of
reasonable care when conducting any acts that could endanger others or cause
harm, leading to claim in negligence. It is the first element that must be
established to proceed with an action in negligence. In other words, we must
live and act in society in such a way that we don’t cause harm to others.

In law of tort; duty of care arises when there is a relationship between

individuals or parties, such as a driver and pedestrians, property owners and
visitors, employer and employee, and doctor and patients. The duty of care
requires the party with the responsibility to take reasonable steps to prevent
harm to the other party

Example of duty of care: Doctors owe a duty of care to their patients to provide
medical treatment that meets the accepted standards of care. This includes
diagnosing illnesses correctly, providing appropriate treatment, and monitoring
patients for complications.

 Breach of duty of care: The second element of negligence is that there has been
a breach of duty of care. Breach of duty of care is when there is a failure to act
reasonable responsible or with due care, and this failure brings about damages
to another person. When a duty of care is owed to a person lor individual, and
its breached resulting in injury or damages, the injured person can sue the
person who breached the duty of care for damage.

Example of breach of duty of care: if a property owner fails to fix a dangerous

condition on their property, and someone is injured as a result, the property
owner may be found to have breached their duty of care.

 Damage: All of these two element (Duty of care and Breach of duty of care)
must have happened before it result to damage suffered by the plaintiff.
Damage is the loss or harm suffered by a person (plaintiff) due to the wrongful
act of another person (defendant). Negligence, there is no liability unless
damage is shown to have resulted form the breach of the duty of care. The
plaintiff must establish a causal link between the defendants conduct and the
damage, which he has incurred. The last element of negligence in tort is the
 plaintiff must have suffered harm as a result of the negligence of the defendant
which result to damage. To establish a claim for negligence, the plaintiff must
prove that the defendant's conduct caused them harm or loss.

Example of damage: If a store owner falls to maintain their property in a safe

condition, and a customer slips and falls on a wet floor. The store owner is
found negligent and liable for damage suffered by the plaintiff. Which as result
to physical damage suffered by the plaintiff.

Case of damage: Liebeck v. McDonald's Restaurants 1992

In 1992, 79-year-old Stella Liebeck ordered a cup of coffee from a McDonald's
drive-thru in Albuquerque, New Mexico. The coffee spilled on her lap, causing
third-degree burns that required skin grafts and two years of medical treatment.
Liebeck sued McDonald's for negligence, claiming that the coffee was
unreasonably hot and that the company had failed to provide adequate warnings
about the temperature of the coffee. During the trial, it was revealed that
McDonald's had received over 700 reports of injuries from hot coffee over the
previous ten years but had not taken any action to reduce the temperature of the
coffee or to warn customers about the potential for burns.
The jury found McDonald's to be negligent and awarded Liebeck $200,000 in
compensatory damages, which was later reduced to $160,000. They also
awarded her $2.7 million in punitive damages, which was later reduced to
$480,000.

In damages, there are essentially two issues involved which are;

I. Causation
II. Remoteness of damage

I. Causation: Causation in legal terms refers to the relationship or link of cause and
effects between the defendant’s breach of duty either by action or event and the
plaintiff injury or damage. It is the act or process the produces an effect.
Causation requires a plaintiff to show that the defendant’s breach of duty was the
cause of the plaintiff’s injury or losses. Another thing we consider is that to see
whether the defendant could have foreseen that his or her action might cause an
injury. Causation is also likely appropriate to other torts, not just negligence.
Causation is still an issue and the plaintiff’s must have showed there is a direct link
between the defendant’s acts and the damages suffered.
To establish causation in a negligence case, the plaintiff’s must show or prove that
the defendant’s breach of duty of care was the cause of their injury or damage.
This means that the plaintiff must show that their injury was a foreseeable
consequence of the defendant actions or inactions.
Proving causation can be sometimes be difficult or complex, particularly in cases
where there may be multiple causes of the plaintiff’s injury or damages. However,
if the plaintiff can establish that the defendants breach of duty was a significant
contributing factor to their injury or damage, they may be able to succeed in a
negligence claim.
Example of causation: where a pedestrian is hit by a car while crossing the street.
In this case, the driver was texting while driving and failed to notice the pedestrian
crossing the street, the drivers breach of duty (distracted driving) was the
proximate cause of the pedestrian injuries. If the driver had been paying attention
and had applied the breaks in time to avoid hitting the pedestrian, the accident and
the resulting injuries would not have occurred.
Case of causation: Donoghue v. Stevenson
In this case, the plaintiff, Mrs. Donoghue, consumed a bottle of ginger beer that
had been manufactured by the defendant, Mr. Stevenson. The bottle contained the
decomposed remains of a snail, which made Mrs. Donoghue ill. She brought a
lawsuit against Mr. Stevenson, alleging that he was negligent in the manufacture of
the ginger beer and that his negligence caused her injuries.
The case eventually made its way to the House of Lords, which held that Mr.
Stevenson owed a duty of care to Mrs. Donoghue and that he had breached that
duty of care by manufacturing a defective product. The House of Lords also held
that Mr. Stevenson's breach of duty was the cause in fact of Mrs. Donoghue's
injuries because she would not have become ill if the ginger beer had been
properly manufactured.
In Donoghue v. Stevenson, the court held that Mr. Stevenson's breach of duty was
the cause in fact of Mrs. Donoghue's injuries because her illness was a direct
consequence of his negligence in the manufacture of the ginger beer. The court
also held that there was proximate cause between Mr. Stevenson's conduct and
Mrs. Donoghue's injuries because her illness was a foreseeable consequence of his
negligence.
Case of Hines v. Garrett
In this case, the plaintiff, Ms. Hines, was a passenger in a car driven by the
defendant, Mr. Garrett. Mr. Garrett lost control of the car and crashed, causing Ms.
Hines to suffer fatal injuries. Ms. Hines' estate brought a lawsuit against Mr.
Garrett, alleging that his negligence caused her death.
The case went to trial, and the jury found that Mr. Garrett was negligent in the
operation of his vehicle and that his negligence was the cause in fact of Ms. Hines'
death. The jury also found that there was proximate cause between Mr. Garrett's
conduct and Ms. Hines' death because her death was a foreseeable consequence of
his negligence in the operation of his vehicle.
Under this element, there are two types of causation. Which are;
 Cause-in-fact
 Proximate cause

 Cause-in-fact
This refers to the direct cause or prove the relationship between the defendant’s
conduct and the plaintiff’s injury or damages. The plaintiff must prove that the
defendant’s action or inactions were the actual cause of their injury or damages. It
sometimes referred to as the "but for" test. According to the ‘but for’ test, that the
defendant’s negligent act or omission did in fact cause the plaintiff’s damage
(causation in fact); by establishing that the damage is still sufficiently proximate in
law to hold the defendant liable to compensate the victim (causation in law – more
commonly referred to as remoteness of damage).
The simplest proposition, and the effective starting point in establishing causation,
is to say that the defendant will only be liable in negligence if the claimant would
not have suffered the damage “but for” the defendant’s negligent act or omission.
In many cases where the negligence of the defendant is obvious the facts allow the
test to operate simply and straight forwardly. The negligence either was the cause
of the damage or there was some alternative cause and the defendant is not liable.
Example of cause-in-fact: where a person slips and falls on a wet floor in a grocery
store. If the injured person brings a negligence claim against the grocery store, they
must establish that the store's negligence was the cause in fact of their injuries.

Case of cause-in-fact: Brock v Frenchay Healthcare Trust [1998]

Here a 16-year-old boy suffered irreversible brain damage after a fall from a
bicycle when he had not been wearing a crash helmet. He had been taken
immediately to hospital but the doctors had failed to discover that he had a
fractured skull, although it was accepted that there was no negligence involved.
The boy was discharged but was readmitted after it became apparent that he was
seriously ill. Doctors prepared for an emergency operation and to give the boy a
drug, Mannitol, used to relieve pressure on the brain. In the event the an anesthetist
did not use the drug until the surgeon arrived and the issue before the court was
whether the eventual damage could have been averted if it had been administered
earlier, The Court of Appeal held that there was nothing in the evidence to suggest
that the drug, if used earlier, would have had any significant impact on the actual
injuries. It is of course possible that the defendant’s injury follows naturally from
the negligent omission, because the events leading to the damage would not have
occurred but for the negligent omission.
 Proximate cause
Unlike the fact-based timeline of factual causation, proximate causation is a
trickier legal concept. This is because, technically, there is no clear definition, as it
involves many moving parts. Proximate cause is also called legal cause.
Proximate cause is an act, whether intentional or negligent, that is determined to
have caused someone else’s damages, injury, or suffering. It can also be defined as
a legal concept that limits liability for harm caused by a defendant's negligence to
those harms that are a foreseeable consequence of the defendant's conduct. It is
also known as legal cause or direct cause.
In summary, it refers to the relationship between the defendant's negligence and the
plaintiff's harm, and whether the harm was a natural and foreseeable consequence
of the defendant's conduct. If the harm was not a foreseeable consequence of the
defendant's conduct, the defendant may not be liable for it, even if their conduct
was negligent.
Example of proximity cause: where a property owner fails to repair a broken
staircase in their building, and a tenant trips and falls down the stairs, breaking
their leg. In this case, the property owner's negligence in failing to repair the
staircase was the cause in fact of the tenant's injuries, as it directly led to the
accident. However, in order to establish proximate cause, the injured tenant must
prove that their broken leg was a foreseeable consequence of the property owner's
failure to repair the staircase. If the injured tenant can prove that a broken leg is a
common and foreseeable consequence of falling down a broken staircase, then the
property owner's negligence would be the proximate cause of the injuries.
However, if the property owner argues that the injuries are not common or
foreseeable, they may be able to avoid liability for those injuries.
Case of proximity cause: Tarasoff v. Regents of the University of California.
In this case, involved a patient named Prosenjit Poddar, who was being treated by a
psychologist at the University of California. Poddar had told his psychologist that
he intended to kill a woman named Tatiana Tarasoff. The psychologist informed
the campus police, who briefly detained Poddar and then released him. However,
the police did not inform Tarasoff or her family of the threat. Poddar later carried
out his threat and killed Tarasoff. Her family sued the University of California and
the psychologist for negligence, arguing that they had a duty to warn Tarasoff and
her family of the danger posed by Poddar. The court held that the defendants had a
duty to warn Tarasoff and her family of the danger posed by Poddar, and that their
failure to do so was a breach of that duty. However, the court also held that the
defendants were not liable for Poddar's actions, as his decision to kill Tarasoff was
not a foreseeable consequence of the defendants' breach of duty.

II Remoteness of damage: Remoteness of damage relate to the requirement that the

damage must be a foreseeable type. The principle of remoteness of damage is
based on the idea that a defendant should only be held responsible for harm that is
reasonably foreseeable as a consequence of their conduct. Remoteness of damage
refers to the legal term that limits the defendant's liability for harm caused by their
negligent conduct. To determine whether harm is too remote, courts often use the
test of foreseeability. Foreseeability refers to whether a reasonable person in the
defendant's position would have anticipated that their conduct could cause the
plaintiff's harm. If the harm is not foreseeable, the defendant is generally not liable
for it.
Example of remoteness of danger: if a defendant leaves a stack of boxes in a
hallway and a plaintiff trips over them and breaks their arm, the defendant is likely
to be held liable for the harm caused by their negligence because it was foreseeable
that leaving boxes in a hallway could cause someone to trip and fall. However, if
the plaintiff later develops a rare medical condition that is unrelated to the broken
arm, the defendant may argue that the harm was too remote and not foreseeable as
a consequence of their conduct.
Case of remoteness of damage: Hughes v Lord Advocate [1963] UKHL 13
In this case, a road worker left an open manhole on the road, without warning
anyone about it. Later that night, two boys, who were playing nearby, climbed into
the manhole, which contained a chamber full of boiling water. The boys suffered
severe burns and sued the road worker for negligence. The issue in this case was
whether the road worker's conduct was the proximate cause of the boys' injuries.
The defendant argued that the injuries were too remote, as it was unforeseeable
that the boys would climb into the manhole and suffer burns. However, the court
held that the defendant was liable for the boys' injuries, as the harm suffered was
foreseeable, even if the manner in which it occurred was not. The court in this case
applied the "reasonable person" test to determine the foreseeability of harm. It held
that a reasonable person in the defendant's position would have foreseen that
leaving an open manhole without warning could cause harm to someone, even if
they could not have anticipated the specific manner in which the harm occurred.
Therefore, the court held that the defendant was liable for the boys' injuries, as the
harm suffered was a direct consequence of his negligent conduct, and was not too
remote.
Novtus actus intervenies
Novus actus interveniens is a Latin phrase which means ‘new intervening act.’ It
is a principle of Tort law. It can be defined as any intervening act that can separate
or break off the legal connection between a defendant’s conduct and the final
injury incurred by the plaintiff, thus preventing the defendant from being held
legally liable for the plaintiff’s harm. For an act to be considered as Novus actus, it
must be reasonably unpredictable.
In other words, novus actus interveniens is an event that occurs after the
defendant's negligence, which is significant enough to absolve the defendant of
liability for the harm suffered by the claimant.
Example of Novtus actus intervenies: Suppose a homeowner hires a contractor to
repair a leaking roof. The contractor negligently leaves a ladder leaning against the
house, blocking the pathway to the front door. The homeowner returns home and
attempts to climb over the ladder to get to the door, but falls and suffers a broken
arm. During the trial, it emerges that the homeowner had been drinking heavily
prior to arriving home and was visibly intoxicated. The contractor argues that the
homeowner's intoxication was a novus actus interveniens that broke the chain of
causation between their negligence and the homeowner's injury. If the court finds
that the homeowner's intoxication was significant enough to break the chain of
causation, the contractor may not be held liable for the homeowner's injury.
However, if the court finds that the contractor's negligence was the primary cause
of the homeowner's injury and that the homeowner's intoxication was not
significant enough to break the chain of causation, the contractor may be held
liable for the homeowner's injury.
Case of Novtus actus intervenies: