What You Should Know Negligence

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As far back as 1856, Lord Alderson defined negligence to be the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. It may consist in omitting to do something which ought to be done or doing something which ought to be done either in a different manner or not at all.

In Black’s Law Dictionary, 8th Edition negligence is defined as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others’ rights. As Ogbuagu, JSC puts it, “The general concept of reasonable foresight is the criterion of negligence. In other words, negligence is not established by proving that the loss sustained by the plaintiff might have possibly and with extra ordinary foresight and prudence been avoided by the defendant”.

Negligence is held to be a failure to take reasonable care where there is a duty and it is attributable to a person where failure to take reasonable care has resulted in damage to another. It is a basic principle of law that there can be no action in negligence unless there is a damage. Negligence is only actionable if actual damage is proved. Note that negligence alone does not give a cause of action; damage alone does not give a cause of action; the two must co-exist. Therefore, negligence is only actionable if actual damage is proved. There is no right of action for norminal damages in the tort of negligence.

The three basic components of the negligence are: (a) duty of care; (b) breach of the duty of care; and (c) damage caused by the breach.  Courts of law are concerned in a case of negligence with the actual relations which come before them in actual litigation and it is sufficient to say whether the duty exists in those circumstances. If it exists, the question that follows then is: “was the defendant under any duty of care at all, and if so, did he observe the standard required in the circumstances of the case? Per Mohammed JSC in Edward Okwejiminor V. G. Gbakeji and Anor (2008) 5 NWLR (Pt. 1079) 172 at P.217.

One issue that ought to be stressed is that a plaintiff, as a matter of law, is required in an action on negligence, to state or give particulars, of negligence, to state or give particulars of negligence alleged. It is not sufficient for a plaintiff to make a blanket allegation of negligence against a defendant in a claim on negligence without giving full particulars of the items of negligence relied on as well as the duty of care owed to him by the defendant.

In strict legal sense, negligence means more than heedless or careless conduct, whether in omission or commission. It properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owed. A party who alleged negligence should not only plead the act or acts of negligence, but should also give specific particulars.

Negligence is a matter of fact and not law. Before a court finds a defendant liable to the plaintiff’s claim, the court must carefully consider the evidence called in order to ascertain whether or not negligence was established. Accordingly, in an action on negligence, a plaintiff, to succeed, must in addition to pleading and establishing the particulars of negligence relied on, he must also state and establish the duty of care owed to him by the defendant, the facts upon which that duty is founded and the breach of that duty by the defendant.

The onus of proof of the negligence alleged at the onset is on the plaintiff, but where this doctrine is applicable, after evidence of how the accident occurred is given by the plaintiff, the onus shifts on the defendant to offer an explanation as to why the accident happened. Such explanation will seek to show that the defendant is not at fault.

Damages in an action for negligence are founded on the principle of restitution in integrum, which means that successful party in an action in negligence must be made by the court to recover such sum as will restore him to the position he was before he suffered the loss.