According to Judge Alderson, negligence means the breach of a duty caused by the omission to do something, which a reasonable man would do, or doing of something, which a prudent and reasonable man would not do. Negligence consist of neglect to use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect, the person has suffered injury to his person or property.
The plaintiff suing under tort of negligence must prove that:
1. The defendant owed him a duty of care, The circumstances must be such that the defendant knew or reasonably ought to have known that acting negligently would injure the plaintiff. A road user owes other users a legal duty of care. An inviter owes his invitees a legal duty of care. A manufacturer of products owes a legal duty of care to consumers. As a general rule, every person owes his neighbor a legal duty of care. The neighbor principle was enunciated by Lord Atkin in his dictum celebrated case of Donohue Vs Stevenson (1932), a man bought a bottle of ginger beer from a retail shop. The man gave the bottle to his girlfriend who became ill after drinking the contents. The bottle contained the decomposed remains of a snail. The bottle was opaque so that the substance could not be discovered until the lady was refilling her glass. The consumer sued the manufacturer for negligence. Lord Atkin in his ruling said “the law that you are to love your neighbor becomes in law that your must not injure your neighbors…who then is my neighbour? The answer seems to be persons who are so closely and directly affected by my acts that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omission which are called in question”
In the Case of Dulieu Vs. White & Sons (1901), the plaintiff, a pregnant woman, was sitting behind the counter of her husband‟s bar when suddenly a horse was driven into the bar. Fearing her personal safety, she suffered nervous shock and gave birth to a premature baby. In the circumstances, the court held that the plaintiff was entitled to recover in negligence. The standard of care expected of the defendant is that of a reasonable man. This is a man of ordinary prudence. A reasonable person is an objective stand created by law for all circumstances. Where professionals or experts are involved, the standard of care is that of a reasonably competent expert in that field.
There are some circumstances however where not even a reasonable person could have foreseen the plaintiff suffering any loss, in which case, there is no liability upon the person who has committed the injurious act.
In the landmark case of Bourhill Vs. Young (1943), the plaintiff (a pregnant woman) heard the noise of a road accident some distance away and walked to the scene. On reaching there, she suffered nervous shock and subsequently miscarried. In the circumstances, the Court held that the plaintiff could not recover in negligence because the injury she suffered or the manner in which it was caused which was not foreseeable. Had the plaintiff not walked to the scene of the accident, she would not have suffered the injury complained of. Such injury was legally termed as remote.
2. There has been a breach of that legal duty of care.The plaintiff has to prove that there was a duty imposed by common law, statute or otherwise, upon the defendant and that the defendant was in breach of this duty. However, at certain times, negligence is presumed without proof of breach of duty by the plaintiff. This is in the case of res-ipsa loquitor.
RES IPSA LOQUITOR
As a general rule, the burden of proving negligence lies with the plaintiff. He must prove that the defendant owed him a duty of care, that the defendant has breached that duty and that he has suffered damage. However, in certain cases, the plaintiff's burden of proof is relieved by the doctrine of res ipsaloquitor. Where it is applicable Res ipsaLoquitor means that „thing or facts speaks for themselves‟.
This for example, occurs where an accident happens in circumstances in which it ought not to have occurred e.g. a car traveling on a straight road in clear weather and good visibility suddenly swerves off the road and overturns, where a barrel of flour suddenly drops from a warehouse, etc. Such an accident ought not to have occurred except for the negligence of the defendant. Res ipsa loquitor is a rule of evidence and not of law. It merely assists the plaintiff in proving negligence against the defendant. Before it can be relied upon, three conditions must be satisfied, namely:
a) The thing inflicting the injury must have been under the control of the defendant or someone whom he controls.
b) The event must be such that it could not have happened without negligence and;
c) There must be no evidence or explanation as to why or how the event occurred, as the accident is such as in the ordinary course of things does not happen if those who have the duty use proper care.
In the case of Bryne Vs. Boadle (1863), a barrel of flour fell from a warehouse o the defendant onto the plaintiff injuring him in the street while he was passing through. In the circumstances, the Court held that the plaintiff was not required to show how the accident took place because on the facts, negligence could be presumed and the rule of res ipsa loquitor applied.
Effect of Res ipsa rule
1.It provides prima facie evidence of negligence on the part of the defendant.
2. It shifts the burden of proof form the plaintiff to the defendant.
3.The plaintiff has suffered injury to his person or property.Plaintiff has to prove that if it were not of the defendant‟s act he would not have suffered loss or damage.There must be a traceable link between the act and the loss, otherwise it would be considered remote and so, irrecoverable. If the plaintiff act is traceable to an independent intervening act (novus actus), the defendant is not liable.
4. Damage: For the plaintiff to succeed in claim of Negligence, he must prove that he suffered harm, loss or prejudice, unless this is presumed as in the case of Injuria sine damnum. No damage, no negligence.
Defenses to Negligence
1. Contributory negligence: This defense is available to the defendant in circumstances in which the plaintiff is also to blame for his suffering. The effect of this defense is to reduce the amount recoverable by the plaintiff as damages by the extent of his contribution. Liability is apportioned between the parties. In earlier law, a person who had contributed to his injury due to his own negligence could not maintain an action in regard to such injury but this was altered in Kenya by the Law Reform Act (Cap 26).This law now enables the plaintiff to recover damages even in case of contributory negligence. However, the damages to be recovered are to be reduced to such an extent by the court, taking into consideration that the plaintiff contributed to his injury. Contributory negligence does not apply in case of children and they can recover full damages even in case of their contributory negligence.
2. Volenti non fit injuria: This is the doctrine of voluntary assumption of risk.
3. Statutory authority: The defendant must prove in this defense that he acted in accordance with the provisions of the Act.