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Tort of Negligence (Elements, Duty of Care, Categories) – Fortune Dikio

Tort of Negligence

Tort of Negligence


The Law of Tort imposes a general duty, which everyone owe’s to persons generally. The Law of Tort enable’s Claimants seek redress in courts for damages and from these cases, principles on Tort begins to evolve, under the Common Law System ( judicial precedent).

Often times before the Tort of negligence was introduced, claims for personal injury was mainly restricted to those falling within established writs and only where contractual relationship, that is privity of contract existed. Hence, the Locus Classicus case of Donoghue v Stevenson in 1932, changed this narrative. The case, succeeded in making negligence a separate and distinct tort, and liability arising from where, the Standard Duty of Care was breached by the defendant, causing harm or injury ( not limited to physical injury).

Everyday, people may at one time or another suffer damage from careless or negligent acts of other persons. Therefore, this classical case, removed the barrier or impediment of having to prove , “privity of Contract”, between the victim and tortfeasor, or bringing such a claim under established writs, or suing for negligence as part of the Tort of Trespass to Person.

However, this case opens a floodgate for different torts of negligence, as elucidated by Lord, MC Millan, he averred in this classical case;

“The categories of negligence are never closed”.

It was feared that the scope would be too broad, hence, the establishment of the Neighbourhood Principle or Proximity or reasonable foreseeability test, in limiting unnecessary claims of negligence, or usurping other areas of Tort. Thus, negligence occurred only where,

  • there was a duty of care owed by defendant to the claimant;
  • a breach of such duty owed;
  • Such breach of duty leading to injury to the claimant.

That, is where defendants act is likely to cause harm to another, and he goes on to carry out such act, the defendant would be liable. This lead to Establishment of ” neighborhood Principle” in donoghue v stevenson.

Nevertheless, it is interesting to note that new cases are still on the increase, due to evolution in socialization, industrialization mechanisms in the society in tandem with Mc Millan’s dictum; “the categories of negligence are never closed”.

This work examines the statement of Lord MC Millan, in the light of judicial and juristic authorities. It does this by examining the Concept of Negligence, the Legal Elements of Negligence; the case of Donoghue v Stevenson and its Significance, the Different Categories of duty of care, Evaluation of dictum of Lord MC Millan in light of the meaning of that dictum, Role of the Courts in expanding the Categories of Negligence, Factors that influence new categories of negligence, and others.

The Concept of the Tort of Negligence

In order to examine and discuss the dictum of Lord Mc Millan, it becomes imperative to understand what negligence entails.

The Tort of Negligence was developed to remedy those acts or omissions, not necessarily intentional which may have occurred without any form of fiduciary relationship. The Tort of Negligence is a very Dynamic, pulsating and scintillating area of Law of Tort. It is the commonest tort. The Tort of Negligence evolved from the period of industrial revolution in the 19th century, during which workers suffered consistent harm during the course of their work in the factories.

What then is Negligence?

In Odinika v Moghalu, per Justice Apata ;

“Generally, negligence is an omission or failure to do something which a reasonable and prudent man under similar circumstances would do, or the doing of something which a reasonable and prudent man would not do”

In Rabiu Hamza v Peter Kure, per Mohammed JSC elucidated;

“Negligence is any conduct that falls below the standard established to protect others against unreasonable risk of harm. The term denotes culpable carelessness.”

That is to say, any conduct or omission falling below the legal Standard established to protect others against that which is intentionally or want only or wilfully disregardful of other’s right. One might be tempted to ask, whether it is just any act of carelessness , recklessness, negligent, indifferent, heedless act of another that can constitute an actionable tort in negligence?

In Lochelly Iron and Coal co. Ltd v Mc Mullan, per Lord Wright, he avowed and unraveled the question above;

“In strict legal analysis, negligence means more than heedless or careless conduct, whether an omission, or commission; it properly connotes the complex concepts of duty, the breach, and damages thereby suffered by the person to whom the duty is owing”.

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The Elements of Negligence.

In P.W (Nig.) Ltd v Mansel Motors Ltd;

The appellate Court averred ;

“Negligence is a tort and is completed and actionable when three conditions are satisfied, these are;

  • The defendant owed a duty of care to the Claimant;
  • That the duty of care was breached; and
  • The Claimant suffered damages arising from the breach”.

These elements would be briefly examined drawing a leaf from the locus Classicus case of Donoghue v Stevenson*.

Duty of Care in Tort of Negligence.

The law of Tort deals generally with the duty fixed by law, owing to all persons generally. In law of Tort, a duty of care is that legal obligation which is imposed on an individual, requiring adherence to a standard of reasonable care while performing any act that could foreseeably harm others. The law of Tort of negligence following the principles in Donoghue v Stevenson, is hinged on whether or not there was a duty of care*, it is to be established before any other element is to be substantiated. Where there is no duty, there is no liability*

However, where there exists a duty of Care defendant must behave reasonably, cautiously and prudently; where he fails to do so and his act or omission causes harm, he is at his own peril.

What are the categories of Negligence?

Following Mc Millan’s dictum in Donoghue v Stevenson, we have anayzed how relevant and prominent the case was in developing a distinct tort of negligence, hinged on the Standard Duty of Care or the reasonable foreseeability test. By this neighborhood principle, Lord Atkin was able to open a floodgate of different areas or categories from which duty of Care could exist, a breach leading to liability.

However, in other to Control these cases and set a reasonable limit, where a case comes before a court, it is no longer necessary, whether it is an established one or a novel case, but what becomes necessary becomes whether , the defendant owed a duty of Care to the Claimant or if he could reasonably forsee that his act could injure his neighbor*. This becomes a viable test and has since evolved progressively.

Some duty of Care situations includes;

  • Employer- Employee Relationship:

In Wilson and Clyde Coal v English* it was elucidated that an employer nunder the common law has the following duty towards his employees;

a) Dury to employ competent staff who wouldn’t jeopardize the safety of his colleagues*

b) a safe place of work*

c) a safe system of work and effective supervision

d) adequate working tools, plants, equipment and thier maintenance.

In Western Nigerian Trading Co v Ajao, an employee sustained injury when a splinter of metal flew into his eyes. The court held the employers liable, as they must provide for safety materials such as safety Googles, handgloves, in tandem with the peculiarities of the job and enjoy strict compliance.These safety equipment, and materials must not be worn out, as in Obakoro v Forex co. Inc, where employee wore tattered handgloves and sustained injuries while working. Also in walker v Northumberland cc; the court held employers have a duty to appropriate task suitable for workers, and provide assistance when necessary.

  • Duty of Care for Road Users:

All persons using the road owe a duty to one another to act reasonably so as not to cause injury, harm to other road users. As in Eseigbe v Agholor , where a trailer hit the Claimants car from behind, causing serious injuries and burns, they Claimant was held liable. In bourgill v Young, Lord Mc Millan stated that ;

“Proper care connotes avoidance of excessive speed, keeping a good look out, observing traffic rules , signals and so on.”

The same Standard of Care is expected of experienced and learner drivers. According to to Lord Denning,* in Nettleship v Weston;

” This standard is an objective standard, impersonal and universally fixed, in relation to the safety of other users of the highway.

  • Baile- Bailor Relationship:

A bailee who accepts goods from a bailor for safe keeping , carriage, or other purposes, owes a duty of Care to take proper care of the goods entrusted to him, whether such bailment is for a reward or gratuitous *. In Hill Station Hotel Ltd v Adeyi, the court of Appeal held, if goods belonging to a guest are stolen or lost or damaged in a hotel, the proprietor of the hotel as an inn keeper, is prima facie liable, although there exits some exceptions.

  • Carriers: in Nigeria Airways Ltd v Abe, the court of Appeal held that a carrier of passengers whether by road, rail, water or air owe a duty to take reasonable care for the safety of their passengers in the course of such carriage and the liability for the breach of this duty applies to carriers equally.
  • Occupiers Liability: an occupier of premises owe a duty of Care to lawful visitors to ensure the premises is reasonably safe.
  • Contractors, architects owe a duty of care, to ensure building’s, roads, and other projects carried on are reasonably safe. E.g in Wells v Cooper, where there was negligence in fixing the door, this caused injuries.Also, the case of Clayton v Woodman.
  • Manufacturers of products: owe a duty of care to consumers of their products, to ensure that the products manufactured are reasonably free from defects, so as not to injure the consumers. As in Osemebor v Niger Biscuits, Donoghue v Stevenson, Grant v Australian Knitting Mills etc.
  • Distributors, traders and Agents must ensure they purchase and sell only reasonable and mercantible goods or products , suitable for the common purpose for which it is used for. As in Ngonadi v Nigerian Bottling company, where a defective refrigerator exploded causing injuries.
  • Negligent misstatement which causes economic loss as in Hedley Bryne v Heller & Partnersltd.
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These instances goes on and on , as stated by Lord Mc Millan in Donoghue v Stevenson; ” categories of Negligence are never closed”.

The Categories of Negligence are Never Closed

What this imply?

The statement above is short, but fundamental. It implies that the different situations in which negligence may occur are endless and carried. As modernization goes on and new products are invented, new relationships are developed, a new duty of care may be recognized by the law and its breach appropriately sanctioned.* In other words, the kinds of negligence are inexhaustible, and the situation within which the duty of care may arise are many and cannot be exhausted, that is it is no possible to enumerate all the situations in which a duty of care is owed to another person.

Man is dynamic, so also is the society swimming in this time of dynamism with modern developments, activities and new relationship, new situations of duty of care would continue to arise. The purview of negligence has gone beyond ‘only established rules’, as new situations arises and are litigated upon by the courts, the judges duty is to grant remedy to the Claimants, in tort of negligence where the court is satisfied that a duty of care exists. – ubi jus Ubi remedium, where there’s a legal wrong, there’s a remedy.

Hence, Donoghue v Stevenson comes very much alive in creating a modern negligence hinged on the duty of care, however, in tandem with rules to limit unnecessary cluster of claims in tort of Negligence. This is further examined in the next subheading.

Are the categories of Negligence so wide and open?

Lord Mc Millan stated that the categories of negligence are never closed, one may be tempted to ask whether this suggests that the categories are so wide to accommodate just any cases of negligence. The question of whether just any act of carelessness, recklessness, negligent, indifference, heedless act of another resulting from different relationship could amount to a tort in negligence is given a succint answer.

In Lochgelly Iron and coal v Mc Mullan, Lord Wright averred;

“In strict legal analysis, negligence means more than heedless or careless conduct, whether an omission or a commission; it properly connotes the complex duty, breach, and damages thereby suffered by the person to whom the duty is owing”.

Therefore, the locus Classicus case of Donoghue v Stevenson, sets out the criteria for determining the existence of a duty of care (neighborhood principle), proximity and foresight which acts a limitation to guard against frivolous and cluster of claims, where no duty existed. As in Edwards v West Herts Hospital Mgt. Committee, where it was held that a resident physician living in a staff hostel in the hospital cannot recover against the hospital , because the hospital owes no duty to the plaintiff to safeguard his property against theft by a third party who comes into the hostel.

Lord Atkin elucidated;

“acts or omissions which any moral code would censure cannot in a practical world…give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy”.

This erudite statement by Lord Atkin , is very succint, as he addressed the fact that while there may exist different or plethora cases on negligence, a rules of law arises to limit this, this rule becomes the “neighborhood principle”, from which standard duty of care evolved, which becomes the basis of the modern law of Tort of Negligence. Where there’s no legal duty owed,no liability arises.

…the rule that you love your neighbour became in law, you must not injure your neighbour….you must take reasonable care to avoid acts or omissions which you can reasonably forsee would be likely to injure your neighbour. Who then is my neighbor? ….persons who are closely and directly affected by my acts that I ought to reasonably to have them in contemplation as being so affected , when I am directing my mind to the act or omission which are called in question.

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Therefore, in as much as Lord McMillan, no so

” However it is generally accepted in law that pulic policy that requires that a limit should be placed as to when the law Should impecede the Duty of Care and when it should not”.

Similarly, in Dorset Yatch v Home office, Lord Denning Stated;

” It is, I think,at the bottom of matter of public policy which we as judges must resolve. This task of ‘duty’ or ‘no duty’ is simply a way of limiting the range of liability for negligence”.

Does the court have a role to play in expanding the categories of Negligence?

Having stated that the principles in law of Tort are judge made, that is from the erudite knowledge of judges in plethora cases, under the common law system. However, judges are wary of creating or expanding these categories of negligence. The judges duty as stated in Dorset Yatch v Home office, is mainly to resolve each case on whether a duty arises or an absence of such duty in order to limit the influx or cluster of Negligence claims. It is important to note that the court does no concern itself with trivialities- Dominimis non curat lex.

In Leisbocsh Dredger v Edison Steamship, Lord Wright stated;

” The law cannot take account of e9 that follows from a wrongful act, it regards some subsequent matters as outside the scope of it’s selection, because it were infinite for the law to judge the cause of causes or consequences of consequences”.

Therefore, the judges are Keen to ensure only relevant situations or categories are developed without usurping other areas of law of Tort.

Does Lord Mc Millan’s dictum still hold water in our Nigerian Legal System?

As society develops, law too develops, along, in fact, law is one of the greatest instrument for changes and development. Certainly it is true, that denying the existence of a duty in some cases, the judge has done so on the ostensible ground that no such authority exists, but recently they have not hesitated to produce a new duty when it seemed right to do so. According to Lord Denning, ” if we never do anything which has never been done before, we shall never get anywhere”. The law will stand still while the rest of the world goes on, this will be bad…

fortunately, in some instances , the Nigerian Courts have followed and adopted some leading authorities in the development of tort of negligence in Nigeria. Although, sometimes, it is applied without modifications to suit our local exigencies.

Nevertheless, the Nigerian Courts are making tremendous progress in developing progressively on the tort of Negligence.

Factors that influence New Categories of Tort of Negligence

Some factors includes;

  1. Modernization and Industrialization Mechanism: this includes an upsurge in social relationships, technical know-how, production efficiency , computer and electronic age, which creates new situations for duty of care to arise. Examples are Software programs, as in Rubicon computers Ltd v United paints, Data privacy, etc.
  2. The Dynamism of Human Society: man is dynamic and subject to changes. Law is created for man, therefore as man evolved alongside societal elements, the need for emerging areas requiring legal protection and Regulations sets in.
  3. Preservation of Life: the law imposes a duty on professionals or alleged professionals to behave and carry out professional services in the most reasonable and prudent manner peculiar to such profession. Little Wonder, the medical and health practices are strictly regulated as any careless could lead to death. Occupiers Liability, negligent misstatement, all these serve to preeeve lifes, property of citizenship from unreasonable risk of harm.
  4. Regulation of human conducts, services, and products: areas such as manufacturing, production, sale( whether reataling or wholesaling), to ensure these novel areas are regulated to prevent defects and unreasonable risk to consumers as in Donoghue v Stevenson, Grant vAusta, etc.


Indeed, judges are endowed with reasoning prowess. Dictums from over centuries are still relevant today. Indeed, the Categories of Negligence are never closed, new situations would always arise, nevertheless, the classical case of Donoghue v Stevenson have set a bench mark to limit any cluster of liability in negligence claims.

About Author

Fortune Nkemakola Dikio is a student of Rivers State University, who is passionate about research and learning on various areas of Law.

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