The Tort Of Negligence

As far back as 1856, Lord Alderson defined negligence to be omission to do something which reasonable person guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent 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 reasonable person would have exercised in 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 in the criteria of negligence. In other words, negligence is not established by proving that the loss suffered 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 is attributable to a person where failure to take reasonable care 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 advice does not give a cause of actions; the two must co­exist.

Therefore, negligence is only actionable if actual damage is proved. There is no right of action for nominal damages in the tort of negligence.

The      three    basic components of negligence are: (a) duty of care (b) breach of duty of care and (c) damages caused by the breach courts of law are concerned in a cause of negligence with the actual relations which come before them in 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 circumstance of the case? Rev. Mohammed JSC in Edward Okej imnor V.G Gbakeji and Anor (2008)5 NWLR)Pt.107a) 172 at P.217.

One issue that ought to be a: stressed is that the plaintiff, as a matter of law, is required in an action on negligence, to state or give particulars of negligence alleged. It is not sufficient for a plaintiff to make a blanket allegation if negligence against the defendant in claim or 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 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 plaintiff. The plaintiff must 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 for negligence, the plaintiff must establish the duty of care owed to him by the defendants, the facts upon which that duty is founded and the breach of that duty by the defendant.

The onus of proof of negligence at the onset is on the plaintiff but where the plaintiff has given the evidence of how the negligence occurred, the onus shifts to the defendant.

Damages in action for negligence are founded on the principle of restitution in integrum which means the successful plaintiff 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 loss.