NEGLIGENCE

NEGLIGENCE AS A TORT: THE HISTORY

• Negligence is the most recent and profound
invention of the common law
• It did not exist as such until the case of
Donoghue v Stevenson (1932) AC 562
• defined as the breach of a legal duty to take
care which results in damage undesired by the
defendant, to the plaintiff-meaning that the P
and the D need not have any relationship that
creates duties and rights as between them
• This was unheard of under common law
where the rule was that D will only owe P
duties where there was privity of contract and
not otherwise
• See e.g. Winterbottom v Wright (1842) 10 M &
W 109 where P was contracted to drive a mail
coach by the Postmaster General. The coach
was supplied by D under a contract that
required D to maintain it in a fit, proper and
secure state. The coach collapsed. P could not
recover against D for want of privity.
Justification: the floodgates argument
• See e.g. Lord Alderson in the Winterbottom
case where he justified his decision as follows:
“If we were to hold that the plaintiff could sue
in such a case, there is no point at which such
actions would stop. The only safe rule is to
confine the right to recover to those who
enter into the contract. If we go one step
beyond, there is no reason why we should
not go fifty.”
Two exceptions where privity was
irrelevant
• (a) fraudulent misrepresentation; and (b)
where the thing was inherently dangerous
See Langridge v Levy (1837) M & W 519, 150
ER 863, where the plaintiff’s father bought a
gun for use by him and his son. The defendant
lied that the gun was made by reputable gun
maker when in fact it was not. The gun
exploded thereby injuring the plaintiff. He
recovered damages because of the fraudulent
misrepresentation
 In comes Donoghue v Stevenson
• Here the plaintiff’s friend treated her to a
bottle of ginger beer at a café. The beer was
packaged in an opaque bottle hence it was
impossible to see the contents. Plaintiff
partook of some of the beer but as she was
pouring more into her glass the partly
decomposed remains of a snail came out of
the bottle. She alleged that she suffered
nervous shock and severe gastroenteritis as a
result.
 What difficulties did P face in her case?

• Privity – there was no privity between her and

the manufacturer, let alone the retailer.
• However, requiring her to sue the retailer
even if there was privity would be problematic
as she would have no way of proving
negligence on the part of the retailer as the
latter did not manufacturer the product
• Yet she had suffered injury-how conscionable
would it be to let the manufacturers go scot
free?
The court devised a new principle of duty to
enable P to get a remedy-see Lord Atkins
statement

• At present I content myself with pointing out

that in English law there must be, and is, some
general conception of relations giving rise to a
duty of care. 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 act that I ought
reasonably 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.” This is what has been called the
neighbour principle
• On the basis of this principle the court held
that the defendant owed a duty of care to
plaintiff to ensure that the contents of the
ginger beer were such that they did not pose a
risk of injury to the plaintiff consumer.
• Rule established: a person must take
reasonable care to ensure that his acts or
omissions do not cause injury to those who
are directly and closely affected by such acts
or omissions
The effects of Donoghue
• provides a general formulation of liability in
negligence thus; negligence depends upon
proof that one person has committed a breach
of duty of care binding upon himself and owed
to another and has thereby caused injury to
that other
• Whether or not there is a duty of care depends
on whether that other is a neighbour in law
• Established negligence as a separate and
distinct tort in common law and enabled
liability to arise as between strangers
 THE ELEMENTS OF NEGLIGENCE
• (a) a legal duty of one person to exercise care
towards another
• (b) breach of duty and
• (c) consequential damage.
 An overview
• All elements must exist-mutually inclusive
• The first matter to be proved is that the
defendant owed a duty of care to the
claimant.
• If no duty exists, there is no need to look for
breach and damage.
• The second matter to be considered is whether
the defendant was in breach of the duty of care-
this element lies at the very heart of a suit in
negligence and involves consideration of whether
the act or omission of which the claimant
complained amounts in law to a negligent act.
• The issue is whether the defendant met the
standard of care required by law when
undertaking the particular activity.
• There should be proof of fault in legal terms on
the part of the defendant, i.e. that def acted
unreasonably
• The third question is whether the breach of
duty complained of was the cause of the
damage suffered.
• Must be answered if duty and breach are
established.
• Pl must establish that the negligent act
caused, or substantially contributed to, the
damage or injury which he or she suffered.
• The court must consider also the issue of
remoteness
• The law will not provide compensation for
damage which it regards as too remote from
the accident itself.
• defendant will not be liable for damage which
is too far removed from the negligent act or
omission because the defendant could not
have foreseen the particular kind of damage
which occurred
• This is a question of law and not fact since it is
the law that places a limit on what is
recoverable
 FIRST ELEMENT: DUTY OF CARE

• No duty of care! No liability!

• The test is “foreseeability”: could the injury
to the plaintiff be foreseen?
• Does physical closeness connote
foreseeability? Remember Donoghue. See
also Palsgraf v Long Island Railroad-P & D may
be physically close and yet D will have no duty
of care if the injury could not be foreseen.
• D’s employee negligently pushed X who was
attempting to board a moving train
• X dropped a package which, unknown to D’s
employee contained firecrackers. There was
an explosion which knocked over some scales
one of which hit the plaintiff injuring her
• Held: no duty of care. The risk of an explosion
arising from the package could be foreseen as
there was nothing in it’s appearance that
indicated it might have firecrackers which
would explode if dropped
• Would the result have been different if X
openly carried the firecrackers?
• What if the package was labeled “explosives”?
• What if it was so labeled and D’s employee
could not read?
• What if X had shouted “I am carrying
firecrackers! Please don’t push me!” and a
whole five seconds passed before he was
pushed off!
• Why is P suing D yet the pushing was done by
D’s employee/servant?
• Duty once established is owed to all persons
who fall within the category of persons who are
likely to be injured by D’s action-so P does not
need to be identifiable at the time of D’s act or
omission;
• see Haley v London Electricity Board (1965) AC
778-D dug a trench in the street and took
precautions to avoid injury to persons of normal
sight yet there were sufficient numbers of blind
people going about the streets alone whom D
ought to have foreseen and taken precaution to
protect from injury
• P need not even be in existence at the time of the
negligent act as long as injury was foreseeable
• See e.g. Burton v Islington Health Authority Tina Burton
was born disabled. The disability was caused by a dilation
and curettage procedure (a minor surgical procedure to
remove tissue from the lining of the womb) undertaken
on her mother during her fifth week of pregnancy. The
medical professionals had been negligent in not
performing a pregnancy test before undertaking the
procedure.
• Held: The Health Authority was liable to pay damages to
Tina Burton for her disability. A duty of care is owed to a
foetus despite the fact that a foetus does not acquire a
legal personality until birth.
Duty to an unborn child
• Watt v Rama (1972) established that a car
driver owes a duty of care to a fetus. In that
case, a pregnant woman was involved in a car
accident which was caused by the negligence
of the defendant. The fetus she was carrying
was injured in the accident and was born with
brain damage, epilepsy and paralysis from the
neck down. The court held that pregnancy can
reasonably be foreseen by members of the
community, therefore, drivers owe a duty of
care to unborn children.
Duty owed to unconceived child

• In X v Pal (1991) (Australian case) an

obstetrician failed to do a routine test on a
pregnant woman for syphilis.
• HELD: the obstetrician owed a duty of care not
only to her and the fetus she was then
carrying, but also to a future unborn child who
became infected with syphilis during a
subsequent pregnancy.
 Duty owed by pregnant woman to unborn child

• In Lynch v Lynch (1991), a child who was born

with cerebral palsy, caused while in her mother’s
womb by a car accident attributable to her
mother’s negligence was able to recover
damages from her mother.

• While this case is confined to car accidents and

the court made an attempt to confine its
decision to a compulsory insurance scheme, the
case does tend towards laying a general duty of
care by a pregnant woman towards her fetus.
 Wrongful birth, wrongful life and unwanted
birth actions
• wrongful birth actions will lie where it is
alleged that, if the defendant had not been
negligent, the child would not have been born
at all. Eg where the defendant has not
performed a sterilisation operation properly
or failed to diagnose a pregnancy to allow an
abortion to take place (where it is a legal
option) (Veivers v Connolly (1994).
• Wrongful life actions or unwanted birth
actions are where a claimant claims that, due
to the defendant’s negligence, the child would
have been better off not being born at all.

• For example, a child which is born with a

genetic disease where the parents were not
advised prior to conception of the risk of that
occurring.
• Kenyan courts have largely adopted English
law of foreseeability
• See e.g. Miriti v Firoze Construction Ltd where
D dug a trench close to P’s house and did not
cover them. They were flooded with water
and P’s infant fell and drowned in the trench.
Held: It was foreseeable that children of
tender years would be attracted to such pools
hence D ought to have taken the necessary
precautions Cf Haley case
• See also Bencivenga v Amimo where duty was
imposed on D who while emerging from the
driveway of his house into a public road
collided with a motorcycle carrying P. D was
aware of a tall hedge that obstructed traffic
and ought to have taken precaution as he
emerged into the road e.g. by stopping first
before joining traffic
Additional cases
• Fred Ben Okoth v Equator Bottlers Limited [2015]
eKLR (duty owed by a soda bottling company)
• Kenya Breweries Ltd v Godfrey Odoyo [2010]
eKLR (duty owed by a manufacturer of beer)
• Joseph Kiptonui Koskei v KPLC Ltd [2010] eKLR;
• KPLC Ltd v Joseph Khaemba Njoria (2005) eKLR,
(duty owed by a supplier of electricity)
• Jeremiah Wachira Ichaura & 8 others v Nation
Media Group [2005] eKLR (duty of newspaper to
publish accurate information)
 Wrongful pregnancy cases in Kenya also
follow the common law rules of foreseeability
• AAA v Registered Trustees -(Aga Khan
University Hospital, Nairobi) [2015] eKLR
• Pl consulted the Def’s family planning clinic for
an appropriate contraceptive method as she
did not want to have any more children (she
and her husband already had two).
• The implant known as implanon was
recommended-it would prevent conception
for 3 years from the date of insertion.
• She took the advice and on the same
date, the D’s medical staff at D’s hospital
took her through the medical procedure
of implanting the implanon into her left
upper inner arm under local anaesthesia.
• After the procedure, she was assured
that the implanon was in place and that
she was free to have sexual intercourse
with her husband without using a
condom, and that she would not
conceive for three years.
• She was unpleasantly surprised when in
the month of August 2012, her menses
failed and a home pregnancy test came
out positive. She visited D’s hospital on
10th August 2012 where a further
pregnancy test confirmed that she was
indeed pregnant. Other tests conducted
by the D’s medical staff at the hospital
confirmed that no implanon had been
implanted in her arm after all.
• Pl pleaded negligence against def and
argued that because of the unwanted
pregnancy and subsequent delivery of
the unplanned child, she suffered
emotional pain, distress, psychological
damage, physical incapacity and financial
hardship.
• Sought damages for all that, including
the cost of bringing up the child, (shelter,
care, food, clothing, entertainment and
education, medical and general welfare)
from the date of birth of the child until
she attained the age of 18 years.
• Def entered appearance but never filed a
defence and never appeared for the
hearing
• The court relied on English and
American cases to establish that a claim
for unwanted/wrongful pregnancy lay
against the defendant and that
following comparative jurisprudence,
such a claim though novel was not
untenable .
• Emeh -v- Kensington and Chelsea and
Westminster Area Health Authority
(1985) 2 WLR 215 & (1984) 2 ALL ER 513,
and Thake & Another -v- Maurice (1986)
1 ALL ER 497 (CA). In the latter case, an
American case is quoted at length:
Sherlock v Stillwater Clinic (1977) 260
NW 2D 169.
• These three cases review the history of this
kind of litigation in those particular
jurisdictions. The judges noted that the issue
of compensation for a failed sterilization or
family planning procedure that results in the
birth of a healthy child posed a challenge to
courts in the earlier days.
• The approach then taken by the courts
was that the claimant would only be
compensated for pain, suffering and loss
of amenities and loss of consortium;
and that courts would only award
damages for the upbringing of the child
only if the child was born with
congenital abnormalities.
• The court would decline on account of
public policy to award child rearing
expenses if the child was healthy. That
public policy was that the joy derived by
parents in bringing up a child cancels out
the compensation that could otherwise
be awarded.
• “18. In the course of time, jurisprudence
in this area of litigation evolved in Britain
and in the United States of America.
Courts gradually moved away from the
public policy approach and began
awarding compensation for the cost of
bringing up an unexpected child up to
the age of majority. In the case of Emeh
-v- Kensington (supra) it was held-
• “(1) Since the avoidance of a further
pregnancy and birth was the object of
the sterilization operation undergone by
the plaintiff, the compensatable loss
suffered by the Plaintiff as a result of the
negligence in performing that operation
extended to any reasonably foreseeable
financial loss directly caused by her
pregnancy….
• (2) Furthermore there was no rule of
public policy which prevented the
plaintiff from recovering in full the
financial damage sustained by her as the
result of the negligent failure to perform
the sterilization operation properly,
regardless of whether the child was
healthy or abnormal.
• 19. In the American case of Sherlock -Vs-
Stillwater Clinic (supra) it was held that -
• “Pretermitting moral and theological
considerations, we are not persuaded
that public policy considerations can
properly be used to deny recovery to
the parents of an unplanned, healthy
child of all the damages proximately
caused by a negligently performed
operation…
…Analytically, such an action is
indistinguishable from an ordinary
medical negligence action where a
plaintiff alleges that a physician has
breached a duty of care owed to him
with resulting injurious consequences.
Where the purpose of the physician’s
actions is to prevent conception or birth,
elementary justice requires that he be
held legally responsible for the
consequences which in fact occurred.”
• HELD: “Whatever may have happened
when the Plaintiff underwent the
procedure, one thing is clear:
the implanon was never implanted into
her arm or any other part of her body.
This could only have been because of the
negligence of the Defendant’s medical
staff in the performance of their duties.
The Defendant is vicariously for that
negligence.”
Pure economic loss-no duty of care
• PEL means the value or profit which P would
have made if D had not been negligent. E.g. P
smelts iron ore in a furnace. As a result of D’s
negligence power supply to P’s furnace is cut
off for several hours as P was melting some
metal. The metal solidifies and P is unable to
perform some other melting operation.
• The loss relating to the solidified metal is
foreseeable-it is immediate and hence duty
exists. The loss relating to metal that was
expected to be molten is a pure economic
loss; it is unforeseeable and hence
unrecoverable see Spartan Steel Alloys v
Martin & Co (Contractors) Ltd (1973) 2 QB 27
Muirhead v Industrial Tank Specialities Ltd

• P a fishmonger, conceived of a project to supply

lobsters at times of high demand by keeping
them in tanks. He purchased the facilities from
Industrial Tank Specialities but the pumps in the
tanks failed to function properly, a large number
of the lobsters died and the plaintiff suffered
economic loss in being unable to proceed with his
project. He claimed for profits he’d have made if
the project had succeeded. Held: he could only
recover for the lobster that had died but not for
anticipated profits as these were a PEL
 Negligent misstatements

• If D makes statements negligently, with

knowledge that P will rely on them to
make certain financial or business
transactions i.e. do something to their
detriment and if P in fact relies on the
statement and suffers loss as a result
Hedley Byrne & Co. Ltd v Heller & Partners

• P were advertising agents for Easipower Ltd. D

was E’s banker. P wished to know if E were
financially sound so they could decide
whether to continue advertising for them. P
asked for assurances from D who stated in a
letter that E were a “respectable company
considered good for its ordinary business
engagements.” P did not cancel the contracts.
E was in fact in poor financial shape and went
into liquidation and was unable to pay P.
• Held: D owed a duty of care to P to give
accurate information as D knew that P would
rely on the information to its detriment.
However since D had excluded liability in their
letter which was headed “For your private use
and without responsibility on the part of this
bank or its officials” D would not be liable in
this instance
 Is there duty not to cause emotional distress
thro’ reckless statements/acts?
• Yes; where D by extreme and outrageous conduct
intentionally or recklessly causes severe
emotional distress to P which results in bodily
harm
• See Wilkinson v Downtown; D by way of a
practical joke told P that her husband had been
seriously injured as a result of an accident and
that she was to go at once in a cab with two
pillows to fetch him home. The resultant shock to
P’s nervous system produced severe and
permanent physical consequences. D was liable.
Cf: Bourhill v Young (1943) AC 92
• P had just alighted from a car when she heard
the sound of a collision between a motor cycle
and a car. The motorcyclist died from injuries
sustained. Motorcyclist was riding recklessly
hence the accident. P was over 40ft away, did
see the accident herself but only saw blood at
the scene after the body had been removed. P
stated the blood threw her into a state of
terror and she suffered nervous shock which
led to a miscarriage. P sued motorcyclists
estate. Was there duty?
• Held: No duty between P and motorcyclist.
• Reasoning: While the cyclist was negligent with
respect to the occupants of the car with which
he collided, he owed no duty to P who was not
within his line of vision, did not directly
perceive of the collision and was not herself
put at reasonable apprehension of immediate
bodily injury. She was not in a position where
she could have been affected by the cyclist’s
careless riding.
• How is this case distinguishable from Wilkinson
v Downtown?
 Effect of public policy on DoC
• Where it is against public policy courts will not
impose a duty of care e.g. Where such duty
would unnecessarily burden a public institution.
E.g. a serial killer is known to be in the
neighbourhood. Police do not apprehend him. In
the meantime he claims another victim. In a case
in negligence the victim’s estate may not succeed
against the authorities because the courts reason
that recognising duty under such conditions
would complicate the work of the authorities
Hill v Chief Constable of West Yorkshire
• Where in refusing to impose liability under
such circumstances the court reasoned that:
“it was against public policy to impose a duty
of care for even though it might be beneficial
to the safety of the people, to do so would
lead the police to conduct their investigation
in a defensive way, to the Courts being asked
to adjudicate over matters of police policy and
to the diversions of money to defend such
actions.”
Cf: Home Office v Dorset Yacht

• juvenile delinquents escaped from a penal

institution on an Island and by careless
handling of the boat in which they had
escaped, damaged the plaintiff’s yacht
• there had been numerous escapes before and
on this occasion all the guards were asleep.
• Held: Govt owed duty because it had right of
control over the youth but exercised it
improperly
• How different is this case from the Hill case?
Is there a duty to rescue a person in peril?

• The Parable of the Good Samaritan (Luke

10:25-37) New International Version (NIV)
• 25 On one occasion an expert in the law stood
up to test Jesus. “Teacher,” he asked, “what
must I do to inherit eternal life?” 26 “What is
written in the Law?” he replied. “How do you
read it?” 27 He answered, “‘Love the Lord your
God with all your heart and with all your soul
and with all your strength and with all your
mind’; and, ‘Love your neighbor as yourself.’”
• 28
“You have answered correctly,” Jesus
replied. “Do this and you will live.” 29 But he
wanted to justify himself, so he asked Jesus,
“And who is my neighbor?” 30 In reply Jesus
said: “A man was going down from Jerusalem
to Jericho, when he was attacked by robbers.
They stripped him of his clothes, beat him and
went away, leaving him half dead.
• 31
A priest happened to be going down the
same road, and when he saw the man, he
passed by on the other side. 32 So too, a Levite,
when he came to the place and saw him,
passed by on the other side. 33 But a
Samaritan, as he traveled, came where the
man was; and when he saw him, he took pity
on him.34 He went to him and bandaged his
wounds, pouring on oil and wine. Then he put
the man on his own donkey, brought him to an
inn and took care of him.
• The next day he took out two denarii and
35

gave them to the innkeeper. ‘Look after him,’

he said, ‘and when I return, I will reimburse
you for any extra expense you may have.’
36
“Which of these three do you think was a
neighbor to the man who fell into the hands of
robbers?” 37 The expert in the law replied,
“The one who had mercy on him.”
• Jesus told him, “Go and do likewise.”
 In law would the priest and Levite have
any liability?
• Let’s go back to Lord Atkin’s statement in
Donoghue.
• Who is my neighbour?
• Is Lord Atkin’s neighbour the same as Jesus’s?
• Which neighbour is likely to incur legal
liability?
• Under common law, there is no generalised
tort duty to lend personal assistance to a
person in distress or to warn a person of
imminent danger. Prosser & Keeton state
generally that:
• “The expert swimmer, with a boat and a rope
at hand, who sees another drowning before
his eyes, is not required to do anything at all
about it, but may sit on the dock, smoke his
cigarette, and watch the man drown.‘...
A physician is under no duty to answer the call
of one who is dying and might be saved, nor is
anyone required to play the part of Florence
Nightingale and bind up the wounds of a
stranger who is bleeding to death, or to
prevent a neighbor's child from hammering on
a dangerous explosive, ...
• or to remove a stone from the highway where
it is a menace to traffic, or a train from a place
where it blocks a fire engine on its way to save
a house,' or even to cry a warning to one who
is walking into the jaws of a dangerous
machine.”
• W. PROSSER & W. KEETON, THE LAW OF TORTS
at 375 (5th ed. 1984).
 Justification?
• The early common law was highly
individualistic; it was feared that judicial
intervention in social and economic affairs
would sap men of their self-reliance and
encroach upon their individual freedom. The
emerging spirit of capitalism-the belief that
“the struggle of selfish individuals
automatically produces the common good of
all”-reinforced judicial reluctance to compel
citizens to assist persons in trouble.
• a distinction arose between “misfeasance”
and “nonfeasance”... It was felt that the
common law should be used "to prevent
people from harming one another, rather than
to force them to confer benefits on one
another.“ see Jay Silver, “The Duty to Rescue: A
Reexamination and Proposal” 26 Wm. & Mary
L. Rev. 423 (1985),
http://scholarship.law.wm.edu/wmlr/vol26/iss
3/3
 What is the distinction between
misfeasance versus nonfeasance?
• A, driving along a road, fails to apply brakes on
time to avoid hitting a pedestrian crossing the
road at a zebra crossing
• B, strolling along a river bank notices C, falling
into the river but refuses to throw him a rope
within reach and save him
• What was the role of either A or B in creation
of the risk?
• According to Weinrib, the distinction between
misfeasance and nonfeasance must be based on
the role that the defendant played in creating the
risk.
• In the first instance A created the risk and then
failed to abate it, hence duty arose
• In the second case, B had nothing to do with the
risk, hence he had no duty
• See, Ernest J. Weinrib, “The Case for a Duty to
Rescue”, 90 Yale L.J. 247 1980-1981
• How about the law versus morality argument? How
significant is this argument? Should law enforce
morals?
 Stovin v Wise [1996] 3 WLR 389

• Mr Stovin suffered serious injuries when he was

knocked off his motorcycle by a car driven by Mrs
Wise. She had pulled out of a junction in which
visibility of traffic was hampered due to a bank of
earth which was topped by a fence. The trial judge
held that Mrs Wise was 70% to blame for the
accident and that Norfolk County Council were 30%
to blame because they knew the junction was
dangerous and had been negligent in not taking
steps to make it safe. The Council appealed.
• Held: The council were not liable as liability related
to an omission.
• Lord Hoffman stated:
• “There are sound reasons why omissions
require different treatment from positive
conduct. It is one thing for the law to say that a
person who undertakes some activity shall take
reasonable care not to cause damage to others.
It is another thing for the law to require that a
person who is doing nothing in particular shall
take steps to prevent another from suffering
harm from the acts of third parties or natural
causes.”
There are exceptions however:

• 1. Undertaking: Where the defendant agrees to act or

voluntarily accepts a responsibility, his later failure to
do so will render him liable:
• Barrett v MOD [1995] 1 WLR 1217
• The claimant’s husband was in the Navy stationed at a
remote base in Norway. One night he was celebrating
his 30th birthday and a recent promotion by drinking
with his friends in the bar provided at the Naval base.
It was a Friday night which was a night on which the
men would generally indulge in heavy drinking. The bar
was putting on an Hawaiian night and duty free alcohol
was available.
• The claimant’s husband was drinking
heavily and was involved in a drinking
competition and became extremely
drunk to the point where he passed out.
He was carried to a chair in the lobby. A
senior officer saw him and told another
officer to take him back to his cabin and
look after him. He was taken back and
placed in his bunk and left in the
recovery position. He was in a coma but
tossing and turning.
• The second officer checked on him on two
occasions but he was then found dead at 2.30am.
At trial the judge held that the MOD were liable
for his death because of the relaxed attitude
towards excessive drinking at the base, in that it
was common for officers to drink heavily and rules
and penalties relating to alcohol consumption
were not being enforced. The damages were
reduced by 25% under the Law Reform
(Contributory Negligence Act) 1945. The MOD
appealed on the grounds that no duty of care
should arise to prevent a person becoming
intoxicated.
• Held:
• The MOD were liable, not through breach of a
duty of care to prevent him becoming
dangerously intoxicated, but because once the
senior officer assumed a responsibility for him
by ordering the other junior Officer to look
after him a duty of care did arise. He was in
breach of duty by failing to ensure the
deceased received the appropriate
supervision.
 2. Special relationship

• Where there exists a special relationship, eg

parent and child, employer and employee, school
and pupil, doctor and patient, between the
parties there is a legal duty to act.
• See Children Act, 2001, sec 23. Definition of
parental responsibility (1) In this Act, “parental
responsibility” means all the duties, rights,
powers, responsibilities and authority which by
law a parent of a child has in relation to the child
and the child’s property in a manner consistent
with the evolving capacities of the child.”
• “(2) The duties referred to in subsection (1)
include in particular—(b) the duty to protect
the child from neglect, discrimination and
abuse;”
• Does this raise a duty in tort?
 Occupiers Liability Act cap 34

• S 3(1) An occupier of premises owes the same duty,

the common duty of care, to all his visitors, except
in so far as he is free to and does extend, restrict,
modify or exclude his duty to any visitor or visitors
by agreement or otherwise.
• (2) For the purposes of this Act, “the common duty
of care” is a duty to take such care as in all the
circumstances of the case is reasonable to see that
the visitor will be reasonably safe in using the
premises for the purposes for which he is invited or
permitted by the occupier to be there.
• S 5(1) Where premises are occupied by any person
under a tenancy which puts on the landlord an
obligation to that person for the maintenance or
repair of the premises, the landlord shall owe to
all persons who or whose goods may from time to
time be lawfully on the premises the same duty, in
respect of dangers arising from any default by him
in carrying out that obligation, as if he were an
occupier of the premises and those persons or
their goods were there by his invitation or
permission (but without any contract).
 Work Injury Benefits Act cap 236

• S 10. Right to compensation (1) An employee who is

involved in an accident resulting in the employee’s
disablement or death is subject to the provisions of
this Act, and entitled to the benefits provided for
under this Act.
• (2) An employer is liable to pay compensation in
accordance with the provisions of this Act to an
employee injured while at work.
• (3) An employee is not entitled to compensation if an
accident, not resulting in serious disablement or death,
is caused by the deliberate and wilful misconduct of
the employee.
• (4) For the purposes of this Act, an occupational
accident or disease resulting in serious disablement or
death of an employee is deemed to have arisen out of
and in the course of employment if the accident was
due to an act done by the employee for the purpose of,
in the interests of or in connection with, the business of
the employer despite the fact that the employee was,
at the time of the accident acting—(a) in contravention
of any law or any instructions by or on behalf of his
employer; or (b) without any instructions from his
employer.
• (5) For the purposes of this Act, the conveyance of an
employee to or from the employee’s place of
employment for the purpose of the employee’s
employment by means of a vehicle provided by the
employer for the purpose of conveying employees is
deemed to be in the course of the employee’s
employment.
• (6) For the purposes of this section, an injury shall only
be deemed to result in serious disablement if the
employee suffers a degree of permanent disablement of
forty percent or more.
3. Control of 3rd party who causes damage:
• Carmarthenshire County Council v Lewis [1955] AC
549
• Home Office v Dorset Yacht Co Ltd [1970] AC
1004 Some young offenders were doing some
supervised work on Brown Sea Island under the
Borstal regime. One night the Borstal officers retired
for the evening leaving the boys unsupervised. Seven
of them escaped and stole a boat which collided with
a Yacht owned by the claimant. Held: The Home
Office owed a duty of care for their omission as they
were in a position of control over the 3rd party who
caused the damage and it was foreseeable that harm
would result from their inaction.
4. Control of land or dangerous things:
• Smith v Littlewoods Organisation [1987] AC 241 D
owned a disused cinema which they purchased with the
intention of demolishing it and replacing it with a
supermarket. The cinema was last used on 29 th May
1976. Littlewoods acquired the building on 31 st May
1976. Contractors were present at the cinema until
21st June and thereafter the cinema was empty until the
incident on 5th July 1976. The contractors had left the
building secure, however, vandals had broke into the
building. D had not been informed of this and so the
building remained unsecured. There was evidence to
suggest that further entry by vandals had occurred over
the couple of weeks.
• The fittings inside the building were damaged and
debris was thrown. On one occasion a sink had
been removed and thrown onto the roof of a
billiard hall. There were also two small incidents
involving fire. None of this was reported to the
police or D. On July 5th the vandals broke into the
cinema and set fire to it. The fire spread and
caused damage to neighbouring properties. The
owners of the properties brought an action in
negligence claiming that D owed them a duty of
care to prevent the actions of the vandals.
• Held: Ds were not liable. Whilst they did owe
a duty of care they were not in breach of duty.
They were not required to provide 24 hour
surveillance and were unaware of the
previous incidents. The law is unwilling to
impose liability for the deliberate act of a third
party as held in Lamb v Camden London
Borough Council [1981] QB 625 but will do so
in appropriate cases (Dorset Yacht v Home
Office [1970] AC 1004).
• P Perl (Exporters) Ltd. v Borough of Camden
[1984] QB 342
• Haynes v Harwood [1935] 1 KB 146 The
Defendant left a horse-drawn van unattended in a
crowded street. The horses bolted when a boy
threw a stone at them. A police officer tried to
stop the horses to save a woman and children
who were in the path of the bolting horses. The
police officer was injured.
• Held: the Defendant owed a duty of care as he
had created a source of danger by leaving his
horses unattended in a busy street.
 SECOND ELEMENT: BREACH OF DUTY
• D must have been breached the legal duty of
care for liability to attach
• The test for breach is that of the reasonable
man: the question would be what a
reasonable person under the circumstances
would or would omit doing.
• It therefore depends on the circumstances of
the case because what is reasonable in one
case may not be so in another.
See the case of Roe v Min of Health
• Dr G, an anaesthetist administered to a
patient R, a spinal anaesthetic in preparation
of a minor operation.
• The anaesthetic was contained in a glass
ampoule/capsule which before use had been
kept in a solution of phenol-a benzene
derivative-some of which leaked into the
capsule and contaminated the anaesthetic.
• As a result R became paralyzed from the waist
down
• Dr. G. had been aware of the consequences of
injecting phenol. He had therefore subjected the
capsule to visual examination before administering
the anaesthetic. He was however not aware of the
possibility of the phenol having leaked into the
capsule. Had he been aware of this possibility, the
danger to R could have been eliminated by adding a
powerful colouring agent to the phenol so that
contamination of the anaesthetic could have been
observed. Held: Dr. G was not negligent in not
causing the phenol to be coloured since at the time, it
had not been discovered that there was a possibility
of phenol leaking into a glass capsule and
contaminating the anaesthetic.
• The standard is not that of the most highly
qualified professional in the filed in question;
the skill required is that of a reasonably
competent person in the field in question e.g.
In Wells v Cooper it was held that where D
purports to exercise skills which he in fact
does not have he’ll be measured with the
standard of a reasonably qualified practitioner
in the field in question. D had fixed his door
handle poorly. It came off and injured P as he
attempted to open the door
• See also The Lady Gwendolen case where Ds
argued that as brewers of beer they could not
be liable for the negligent steering of their
ship by their captain because their
competence lay in brewing and not shipping.
• Held: since they had become owners of ship
they must confirm to the standards of
ordinary and reasonable ship-owners
In establishing breach several factors must
be considered
• (i). Magnitude of risk-which is turn made up of
2 elements (a) Likelihood that injury will occur
and (b)seriousness of the injury risked
• (ii). Importance of the object to be attained
• (iii) practicability of precautions
(i) Magnitude of the risk
• (a) Likelihood of injury: The greater the likelihood
of injury, the greater the amount of caution
required.
• See Bolton v Stone where a ball was hit out of the
bounds of a cricket field onto the highway about
100 meters away where it struck and injured P.
Evidence showed that incidences where a ball had
been hit out of the grounds were very few-in a
span of 30 years, a ball had been hit out on only 6
occasions-it was such a rare occurrence that there
was little likelihood of injury hence not requiring D
to take any measures further than it had already
taken (the erection of a tall fence)
• Cf: Hilder v Associated Portland Cement
Manufacturers Ltd
• P’s husband was riding his motorcycle along a
road outside a piece of open land occupied by
the defendants, where children were
permitted to play football, when a ball was
kicked into the road causing him to have an
accident.
• Held: the likelihood of injury was high hence D
should have taken greater precaution to avoid
the risk of injury
(b) Seriousness of injury
• The more serious the injury is likely to be the
more the precaution that should be taken e.g.
where P is a one-eyed garage worker exposed to
the risk of injury thro’ flying pieces of metal, P
would suffer more grave consequences of total
blindness in case of injury to the good eye as
opposed to normally sighted individuals whose
risk is lesser than P’s-loss of one eye only; hence
requiring greater precaution in P’s case such as
the provision of protective wear even when it is
not the practice to do so in the industry in
question See Paris v Stepney Borough Council
(ii) Importance of the thing to be attained
• Where the object to be attained by taking the
risk is important a higher risk threshold may
be called for e.g. it would be much safer if all
vehicles were restricted to speeds of say
5Km/h. But what would be the cost to the
national life? So it becomes necessary to
balance the risk with the objective sought to
be attained.
• E.g. a greater risk will be likely tolerated where
an emergency response vehicle such as an
ambulance had some defects
• In Daborn v Bath Tramways Co Ltd D was
driving an ambulance with a left-hand drive
and with one driving mirror on the left-hand
side attached to the windscreen. The
ambulance was completely shut in at the back
so that D was unable to see anything close
behind her. She gave a hand signal of her
intention to turn right. As she started to turn,
an omnibus that she didn’t see was trying to
overtake her and there was collision.
• Held: there was no negligence on her part
• (per Asquith LJ) in considering whether
reasonable care had been observed, it was
necessary to balance the risk against the
consequences of not assuming that risk. In
view of (a) the necessity in time of national
emergency of employing all available transport
resources, and (b) the inherent limitations of
the ambulance in question, D had done all that
she could reasonably do in the circumstances
• What if it was not a vehicle involved in
emergency operations?
See Watt v Hertfordshire County Council
• P a fireman was injured by the movement of a
heavy jack that sled along the floor of a lorry
they were using to respond to an emergency
where a woman had been trapped under a
heavy vehicle. At the time the lorry was the
only available means of transport. P claimed
that D ought to have had the appropriate
means of transporting such jacks at all times.
• Lord Denning rejecting the proposition stating
that: “It is well settled that in measuring due
care, you must balance risk against the measures
necessary to eliminate the risk. To that
proposition there ought to be added this; you
must balance the risk against the end to be
achieved. If this accident had occurred in a
commercial enterprise without any emergency,
there could be no doubt that the servant would
succeed. But the commercial end to make profit
is very different from the human end to save life
or limb. The saving of life or limb justifies taking
(iii) Practicability of precautions
• If the measures needed to eliminate the risk
totally far outweigh the extent of the risk
there may be no breach e.g. where D’s factory
is flooded as a result of a downpour, then D
takes measures to reduce slipperiness of the
floor by covering a bigger portion of the floor
using sawdust leaving certain small patches
uncovered due to insufficiency of the sawdust,
it would be to imposing too great a burden to
require D to close the entire factory down
merely to avoid risk of person slipping on the
How does P prove that there’s been breach?

• Who has the burden? See s 107(1) Evidence

Act -“whoever desires any Court to give
judgment as to any legal right or liability
dependent on the existence of facts which he
asserts must prove that those facts exist. (2)
When a person is bound to prove the
existence of any fact it is said that the burden
of proof lies on that person.”
• P must prove breach by tendering evidence.
What is evidence?
Standard of proof: balance of probabilities or
preponderance of evidence
• Meaning: P’s evidence must be such as is
enough to slightly tip the scales over in his
favour. If the evidence is evenly balanced in
such a way as to make it possible to conclude
that the injury would have occured with or
without D’s negligence, then P does not
discharge the burden and the suit must be
dismissed
• See Ashford v Mersey Regional Health
Authority where P suffered a partial paralysis
in her face when in the course of surgery on
her left ear the surgeon cut a facial nerve.
Expert evidence showed that this was an
inherent risk in such surgeries whether or not
performed with the greatest of skills. In other
words the injury would have occurred anyway
so it could not have been D’s fault that it in
fact occurred.
What if P is injured thro’ D’s act but P cannot
explain how the injury occurred? Is there proof?

• General rule: see s 107 Evidence Act-P must

prove by evidence. What if P did not perceive
of how the injury occurred? E.g. if P was
unconscious or asleep or obstructed from
view?
• P can rely on the principle of res ipsa loquitor
which allows P to recover damages in cases of
injury but inability to explain how such injury
occurred
Proof in the absence of evidence: Res ipsa
loquitor
• “There must be reasonable evidence of
negligence. But where the thing is shown to
be under the management of the defendant
or his servants, and the accident is such as in
the ordinary course of things does not happen
if those who have the management use
proper care, it affords reasonable evidence, in
the absence of explanation by the defendant
that the accident arose from want of care.”
See Scott v London & St. Katherine Docks
Conditions of application

• There must be lack of direct evidence of

negligence-where there is evidence it becomes
unnecessary to apply RIL
• Where there is no evidence then P will rely on
RIL if: a) the cause of the accident is something
within the control of the defendant or his
servant. b) ordinarily, the accident would not
occur with reasonable control c) the defendant
or his servants has no reasonable explanation
as to how the accident occurred without his
negligence.
(a) Control

• D must be shown to have been in control of the

thing causing the accident see e.g. Turner v
Mansfield Corporation where P, employed by D
to drive a dust-cart was injured when the cart
flipped over as he operated it. Held: RIL not
applicable because P was the one in control
• Gee v Metropolitan Rly: P leaned against the
door of a train as it left station. It flew open P fell
out. RIL applicable; D was in control of train
(b) Accident would not normally occur if there
was proper control
• The fact of the accident must justify the
conclusion that it resulted from D’s negligence.
Byrne v Boadle; P was walking along a street;
barrel of flour fell from the D’s shop window
above him. D argued that there was no evidence
of negligence even though it was clear that the
barrel fell from his shop. HELD: common
experience shows that a barrel will not fall from
an upstairs window on to a passerby in the street
if those in charge take proper care. RIL applicable
(c) Absence of explanation
• D should offer a reasonable explanation that
does not connote negligence. See Barkway v
South Wales Transport Co Ltd; D’s omnibus fell
off an embankment as it reversed. There had
been a tyre burst due to a defect which
would’ve been avoided if D had required its
drivers to report such defects. The omission to
maintain such a system was negligent. Hence
D was liable on the evidence in which case it
was not necessary to apply RIL.
Ng Chun Pui v Lee Chuen Tat
• D’s coach suddenly crossed over to the
opposite lane of a dual carriageway colliding
with another bus. P sought damages and
relied on RIL only and called no oral evidence;
D gave evidence showing that another car had
cut across the coach’s lane and that to avoid
hitting it D had braked and swerved causing
coach to skid across the lanes. RIL was not
applicable; there was a reasonable
explanation showing D was not negligent
Kago v Njenga
• Front tyre of D’s bus suddenly burst causing
driver to lose control hence a collision. The
tyre was new and D had instituted a system
that required the tyres to be subjected to daily
visual inspection. Held: RIL not applicable;
there was a reasonable explanation which
showed D was not negligent
Cf: Embu Public Road Services v Riimi

• D’s bus overturned when one of it’s main

springs broke suddenly. There was an
appreciable time between the breaking and
overturning during which the driver might
have steered the bus to safety. RIL applicable
as D could not offer an explanation that did
not connote negligence on the driver
• So what advantages does RIL offer for P?
• Does D suffer any detriment?
• Is RIL a fair rule?
• Further reading: Boniface Waiti & another v
Michael Kariuki Kamau [2007] eKLR ; Nandwa
v Kenya Kazi Ltd [1988] KLR 488; Ogol v
Murithi [1985] KLR 359
 THIRD ELEMENT:
DAMAGE/INJURY/CAUSATION
• There must be a causal link between D’s act
and P’s injury
• A’s car stalls on a cold foggy morning; his car
has no lights so it cannot be seen. B drives at
100kph on a road that is slippery where the
speed limit is 50kph. B fails to see the stalled
car, crashes into it, rolls over blocks the other
lane causing a pile up involving 4 other
vehicles. Who is responsible for the accident?
Why?
 Causation is determined by considering 3
factors
• (i) factual causation: is the question whether
as a matter of fact did cause injury to the
plaintiff.
• (ii) Legal causation- which is the question
whether the defendant as a matter of law
should be liable to the plaintiff regardless of
proof of factual causation.
• (iii) Remoteness-whether the injury
complained is one for which the plaintiff ought
in law to recover
(i) Factual Causation

• established vide the “But-For” test where the

plaintiff must prove that he would not have
suffered the damage in question “but-for” the
defendant’s negligent act or omission; see
Barnett v Chelsea & Kensington Hospital
Management Committee P’s husband felt sick
after partaking some tea laced with poison; he
went to D’s hospital early in the morning;
doctor on duty refused to attend to him; he
died later. Regardless of any intervention P’s
husband would’ve died anyway. Held: D not
liable
• The rule of causation was restated in Cork v
Kirby Maclean Ltd : “Subject to the question of
remoteness, causation is a question of fact. If
the damage would not have happened but for
a particular fault, then that fault is the cause
of damage; if it would have happened just the
same fault or no fault, the fault is not the
cause of the damage. It is to be decided by
the ordinary plain common sense of business.”
(ii) Legal causation: novus actus (nova causa) interveniens

• if the factual causation is established P must

then show that under law D should be
responsible for the damage suffered.
• The chain between the act and the injury
suffered must not be interrupted. If there are
intervening acts in between the court must
determine the effect of such intervention on
D’s liability.
• Such intervening acts are known as novus
actus/nova causa interveniens
Types of novus actus/nova causa interveniens

• (a) intervening natural event;

• (b) intervening act of a 3rd party;
• (c) intervening act of the plaintiff
(a) Intervening Natural Events

• arises where an independently occurring

natural event causes damage which would not
have occurred but for the defendant’s breach.
• Where D’s breach has not increased the
likelihood that the plaintiff will suffer damage
nor rendered him more susceptible to
damage, it will not be treated as the cause of
damage and the natural event will be held to
be a nova causa interveniens thereby breaking
the chain of causation
See Carslogie Steamship Co. v Royal Norwegian
Government
• D negligently caused a collision that damaged
P’s ship. P’s ship set off on a voyage to the US
which she wouldn’t have done if the collision
had not occurred. There was a heavy storm
and P’s ship suffered extensive damage as a
result. Issue: whether P could recover for loss
caused by storm. Held: No, as that loss was
caused by a storm that was unforeseeable
hence not connected to D’s negligence. Chain
of causation was broken
(b) Intervening act of a 3rd Party

• Where D’s act has done no more than provide

the occasion for an entirely independent act
by a 3rd party and that act is the immediate
cause of the plaintiff’s damage, then the 3rd
party’s act is a nova causa interveniens and D
is not be liable
See The Oropesa
• 2 ships collided: the Oropesa and the Manchester
Regiment; both were to blame but the MR was
extensively damaged. The master of the MR
decided to cross to the O by boat to discuss
salvage operations. The sea was rough and the
boat capsized and nine people were drowned.
Issue: whether the death of the nine was caused
by the initial negligence of the O or whether the
chain was broken by the MR masters act in taking
to the boat despite the rough waters. Held: the
master’s action was a direct consequence of the
collision and was not a novus
Baker v Willoughby
• D injured P in the leg, negligently so, forcing P
to take up a new job. P was shot in that same
leg while at the new job and the leg had to be
amputated. D argued they were not liable to
pay P for loss of use of the leg as P had lost
the leg anyway. Held: The shooting had no
connection with the original negligence; it was
not a novus hence D had to pay
(c) Intervening Act of the Plaintiff

• where P engages in conduct which exacerbates

an injury arising out of D’s conduct, P’s
conduct may constitute a nova actus
interveniens-becomes contributory negligence;
Mckew v Holland & Hannens & Cubbits
(Scotland) Ltd ; D injured P’s left foot
negligently; P lost control of the foot; P
entered a flat via a steep staircase without
handrails, lost control of his leg then fell down.
Held: P’s conduct was negligent and D was not
liable for subsequent injuries from the fall
Cf: Wieland v Cyril Lord Carpets Ltd

• D caused injury to P’s neck; P had to wear a

collar brace as a result of which she had to
stop using her glasses; due to poor sight she
fell down a staircase. Held: her conduct was
not unreasonable unlike P’s conduct in the
McKew case, hence no break in the chain of
causation
(iii) Remoteness of Damage

• Some consequences may be too far removed

from D’s conduct that it becomes
unconscionable to hold D responsible for
them-they are said to be too remote in which
case it becomes unjust and against public
policy to require D to pay for them
• In Overseas Tankship (UK) Ltd v Morts Dock &
Engineering Co. Ltd (The Wagon Mound) (No.
1) the rule established was that damage must
be of a kind which was foreseeable.
• The rule was reiterated in Hughes v Lord
Advocate- where the injury is foreseeable it
matters not how it arises
• Damage is remote if it is against public policy
to recover it. See Pritchard v JH Cobden Ltd
where it was held that when P’s marriage
broke up as a result of his injuries, orders for
financial provision made against him by the
divorce court could not be enforced against Ds
Negligence by persons professing
special skills i.e. professionals
 Advocates
• An advocate owes to a client a duty of care in
relation to all kinds of business which involve
the law-an advocate must exercise a
reasonable degree of care, skill and
knowledge
• In a claim for professional negligence against
an advocate all the three elements of
negligence must be established
• To whom does an advocate owe a duty of care?
• Client; but when is a person a client?
• Kimani Ng’ondu Mburu v Catherine Waithira
Mwangi T/A Waithira Mwangi & Co. Advocates
[2013] eKLR available at
http://www.kenyalaw.org/caselaw/cases/view/
93361/
where Havelock J held that an agreement with
an advocate in which payment is expressed to
be done in future depending on the outcome of
the case does not establish an advocate-client
relationship as such agreements are expressly
Would a duty of care be owed to a non-client?
• Donoghue? Is it applicable? Who is my neighbour
in law?
• Remember Hedley Byrne-how would it apply?
• An advocate “who, upon request, gave any advice
or material information negligently, whether
gratuitously or not, to a non-client, then if had
reason to believe that such was going to be acted
upon he might well be liable, in the absence of a
clear disclaimer of responsibility, were any loss or
damage suffered by the non-client in
consequence.” see Halsbury’s Laws of England
 Lord Denning has stated in Dutton v Bognor
Regis UDC [1972] 1 QB 373 that:
• “Nowadays...it is clear that a professional man who
gives guidance to others owes a duty of care, not
only to the client who employs him, but also to
another who he knows is relying on his skill to save
him from harm. It is certain that a banker and an
accountant is under such duty. And I see no reason
why a solicitor is not likewise. The essence of this
proposition however, is the reliance... The
professional man must know that the other is
relying and that other must in fact rely on his skill
and the other must in fact rely on it.”
Ross v Caunters [1980] Ch 297
• Solicitors prepared a will for a testator then sent it
to him for execution (signature). Under law, the
spouse of a beneficiary under the will was not
allowed to witness the execution otherwise the
disposition to such beneficiary would be rendered
void. Solicitors failed to warn the testator and a
beneficiary’s husband signed as a witness to the
execution. When the testator died the beneficiary
could not get anything owing to this defect and she
sued her solicitors who argued that while they
owed a duty to the testator, they had none in
relation to the beneficiary
• Held: a solicitor could be liable in negligence to a
third party where duty of care would be
established-if the third party was someone who
the solicitor ought reasonably to have
contemplated as being likely to be affected by his
failure to carry out the testator’s instructions
• Such a duty would lie where a testator instructs
an advocate that he wishes to revoke an earlier
will and replace it with a new one, then dies
before the advocate acts on the instructions even
though he had an opportunity to act; see White v
Jones [1995] 2 AC 207
 What amounts to breach?
• The usual test applies: reasonableness i.e. an
advocate must act as a reasonably competent and
diligent advocate would act under the
circumstances; Roe v Min for Health; Wells v
Cooper; The Lady Gwendolen
• See Kogo v Nyamogo & Nyamogo Advocates
[2004] 1 KLR 367 (advocate not liable in
negligence when he failed to ask the plaintiff to
produce certain documents in relation to a
particular claim in a personal injury suit resulting
in that particular limb of the claim being
dismissed for lack of evidence.)
 Kimani Ng’ondu Mburu v Catherine Waithira
Mwangi T/A Waithira Mwangi & Co. Advocates
• “...the liability of an advocate to his client for
negligence in performing his professional
duties must generally arise from some really
elementary mistake and not be an error of
judgment on some complicated point or one
of doubtful construction. Each case must
depend on its own particular facts.” Quoting
from Champion Motor Spares v Phadke (1969)
EA 42 (which in turn had cited a number of
English decisions)
• “...counsel is not liable in negligence merely
because he expresses an opinion which
ultimately turns out to be wrong nor merely
because he overlooks one of a number of
relevant authorities.” Rondel v. Worsley,
[1967] 3 All E.R. 993. (Lord Denning)
• An advocate is not in breach for failing to argue a
new or novel point of law De Souza v Mandavia
[1964] EA 682 at 688, para G; “It is well
established that a solicitor is not answerable for
error in judgment upon points of new
occurrence, or of nice or doubtful construction,
or of such as are usually entrusted to men in the
higher branch of the profession of law.” citing
Tindal J in Godefroy v Dalton (1830) 6 Bing 460
Examples of breaches

• Preparing a defective bill of sale; The

Insurance Company of North America v
Baerlein and James [1960] 1 EA 93
• Negligently giving the value of a property to
be used for security in a mortgage instead of
seeking the services of a professional valuer
Kirima Estates (U) Ltd v KG Korde [1963] 1 EA
636
• Ignorance of a statute that was constantly
being cited and invoked in cases that were
frequent (the advocate consented to a claim
that was not allowed by law resulting in his
client being ordered to pay damages);
Champion Motor Spares Ltd v Phadke and
Others [1969] 1 EA 42
• Failing to personally interview a client and
failing to advise a client to abandon a wrong
course of action that led to dismissal of suit;
Barry v Keharchand (1919-21) 8 EALR 102
• Overlooking the law on limitation in another
country when representing a client in that
other country; Singh & Another v Singh &
Another (1955) 22 EACA 125
 Medical negligence
• All 3 elements of negligence must be
established In M (A Minor) v. Amulega &
Another [2001] KLR 420 the court observed
that in order to succeed in negligence, the
plaintiff must prove that there is a duty of care
owed to him by the defendant and that there
was a breach of that duty of care the breach
of which resulted in damage to the plaintiff
which is not remote.
• Duty of care arises when a doctor accepts a
person as a patient or undertakes to treat the
person
• In Muchoki v. AG [2004] KLR 518, the court
stated that, “when a hospital accepts a patient
for treatment, it must not only use reasonable
care and skill to cure him of his ailment, but
must also provide a safe and secure
environment for such treatment.”
Establishing breach: reasonableness
• McNair J. in Bolam vs. Friern Hospital
Management Committee [1957] 1 WLR 582
said: “The test is the standard of the ordinary
skilled man exercising and professing to have
that special skill … a man need not posses the
highest expert skill; it is well established law
that it is sufficient if he exercises the ordinary
skill of an ordinary competent man exercising
that particular art.”
Additional cases

• Atsango Chesoni v David Mortons Silverstein

[2005] eKLR
• Daniel Kariuki v Aga Khan Hospital and
Another [2005] eKLR
 DEFENCES TO NEGLIGENCE
• Volenti non fit injuria (voluntary assumption of
risk)
• Contributory negligence
• Ex turpi causa non oritur actio (illegality)
• Exclusion of liability
 1. Volenti non fit injuria (voluntary assumption
of risk)
• “one who has invited or assented to an act
being done towards him cannot when he
suffers from it complain of it as a wrong”. See
Smith v Baker
• P must have consented/agreed to the risk; see
Smith v Baker where P was employed to drill
holes in a rock. There were cranes moving
crates of stone above his head, he knew this; a
stone fell on his head; volenti did not apply as
he did not agree to this risk though he knew it
• agreement must be free and voluntary; see
Letang v Ottawa Electric Ply Co “If the
defendants desire to succeed on the ground
that the maxim volenti non fit injuria is
applicable, they must obtain a finding of fact
that the plaintiff freely and voluntarily with
full knowledge of the nature and extent of the
risk he ran, impliedly agreed to incur it.”
• where the plaintiff actively encourages the
defendant to create the dangerous condition,
the plaintiff will not recover See Pitts v Hunt
where P, a pillion passenger on a motorcycle
ridden by D knew D was uninsured and
unlicensed. After four hours of drinking
together, P encouraged D to engage in
reckless, irresponsible and idiotic riding of the
motorcycle leading to a disastrous accident.
Even though the Road Traffic Act, prevented
the plea of volenti the Court observed that the
plea would have defeated the plaintiff’s claim.
• where the activity in question is inherently
dangerous P would not recover if he voluntarily
participates in it: Morris v Murray P and his pilot
friend spent an afternoon drinking together where
the pilot consumed up to 17 bottles of whisky. The
pilot offered to fly P in an aircraft; P agreed. The
plane crashed on take-off killing the pilot and
severely injuring P. Held: volenti applied. P
accepted a flight with an obviously drunken pilot
thereby deliberately putting himself at risk as the
pilot was incapable of discharging any normal duty
of care. Flying a plane when drunk was significantly
risky than driving when drunk Cf Dann v Hamilton
• Associated Battery manufacturers East Africa
Ltd v Julius Mutunga [2005] EKLR, Civil Appeal
452 of 1999; P was a watchman at D’s
premises; he was attacked by armed robbers;
he claimed D was negligent in not taking
precautions to ensure he was not attacked.
Held: volenti applied. The job of a watchman
was inherently risky. (“Any watchman who
takes such a job does so at the risk of being
attacked by robbers and being hurt, there can
be no doubt about it.”)
Khimji v Tanga Mombasa Transport co. Ltd

• The deceased was a passenger in a bus which

was held up in a swollen river. The passengers
pressed the driver to cross the river which he
was unwilling to do. After some persuasions he
agreed to do. The bus struck some obstruction
and slipped into deeper water where it got
stuck. Held: danger was apparent to the
passengers, they had a proper warning as well
and they had adequate opportunity of electing
whether to accept the risk or not and the claim
of negligence failed as the maxim volenti non fit
injuria applied”
2. Contributory Negligence

• Section 4 of the Law Reform Act Cap 26

provides that: “Where any person suffers
damage as a result partly of his own fault and
partly of the fault of any other person or
persons, a claim in respect of that damage shall
not be defeated by reason of the fault of the
person suffering the damage, but the damages
recoverable in respect thereof shall be reduced
to such extent as the court thinks just and
equitable having regard to the claimant's share
in the responsibility for the damage.”
Jones v Livox Quarries
• P who worked in a quarry was riding on the
back of D’s vehicle contrary to D’s express
instructions. Another vehicle also belonging
to D was negligently driven into the back of
the 1st vehicle injuring P who claimed against
D in negligence. D claimed that P was
contributorily negligent. While the trial judge
found D negligent, he reduced P’s damages by
20% for contributory negligence. P appealed;
the appeal was dismissed
Arkay Industries Limited v Amani
• P was employed in D’s factory processing
edible oil. He stood on a slippery table while
operating a machine. He fell into the machine
which contrary to law, was not covered. Held:
P was contributorily liable as he should not
have stood on a table that he saw was clearly
slippery
Mohammed v Muhumed

• Court apportioned liability when it found that

P had equally contributed to her injury. D had
wanted to reverse his lorry out of mud. He
shouted for people behind the lorry to move.
P did not though she heard the instructions.
But even D did not check to find out if all the
people had moved off
Can a child be liable in contributory negligence?

• See cases of Tayab v Kinanu ; Butt v Khan

• Gillick v Wisbech (the Gillick competence)
3. Illegality (ex turpi causa non oritur actio)
• an action cannot be founded upon a wicked
act
• E.g. when P was involved in an illegal activity
at the time of injury; see Ashton v Turner
where P was injured while escaping from a
burglary scene. He could not succeed because
as a matter of public policy, the law does not
recognize a duty of care owed by one
participant in a crime to another in respect of
an act done in furtherance of the common
purpose. See also Pitts v Hunt (above)