Course Title: Law Of Tort

Course Code: PPL 301

Date: 12/10/2022
Lecturer: Barr Momodu.

Compiled by Emmanuel Nekpenekpen

NEGLIGENCE

Negligence can be defined as the breach of a legal duty of care undesired by the
defendant to the plaintiff which result to damage. Negligence was defined in Wema
Bank v BBC( Brown Boveri Nigeria Ltd) (1996) pt 454, 364 at 381,
“as the the omission to do something which a reasonable man guided
upon those, consideration which ordinarily regulate the conduct of
the human affairs, would do or doing something which a prudent
or reasonable man will not do”.

Negligence Maybe said to consist in a failure to exercise due care in a case in which a
duty to care exist. The general concept of reasonable foresight is the criteria of
negligence and it is found in it's application. See Lord Wright in Bourhiu v young
(1973)A.C.
In the case of Wema Bank v BBC (Supra) the defendant was issued a cheque dated
May 26th 1983 for one hundred and Seventy two thousand, two hundred and nineteen
Naira by the National Electric Authority (NEPA) drawn on the Central Bank of
Nigeria(CBN).One Mr Ugwumadu who's official duty is thus to do so on behalf of the
respondent collected the cheque, when he was about to launch the cheque in the
plaintiff bank, it was discovered that only one signature instead of two was appended
on it by NEPA The defendant made a photocopy of the cheque and instructed Mr
Ugwumadu to return it to NEPA for the second signature. This was done but instead
of paying the cheque into the defendant usual account, he deliberately opened an
account in the name of the defendant in another bank. He chose the Plaintiff's bank
branch at Ikeja. In Conspiracy with two persons, an account was successfully opened
early in September 1983 with the said two persons being made authorized signatures
to the account. The defendant then sued the Plaintiff in the High Court Claiming the
sum of N17,2219 with interest for the tort of negligence. Before opening the account
and permitting withdrawal the unsuspecting plaintiff demanded and receipt the
original certificate of incorporation of the defendant for sighting retract from the
minute of the board of directors of the respondent where the criminal were described
as the authorized signatories to the account proposed and a copy of memorandum and
articles of association of the defendant.
 The Plaintiff also obtained the passport photographs and usual signature of the
proposed signatures in accordance with usual banking practice for opening of current
account for corporate persons. He furthered a search at company’s registry and
confirmed the due in corporation of the defendants. By the time the defendant got to
know the whereabouts of the cheque, there was only a credit balance of N27.52kobo
in the account of the defendant’s bank and the criminals had disappeared. At all
material time, the defendant was never a customer of the plaintiff’s bank. Among the
particulars of negligence which the defendant pleaded were failure to conform to the
necessary banking practices in dealing with new customers and failure to obtain
necessary reference before opening the account in the name of the defendant’s
company. However, the defendant did not pleas any evidence to the particulars of
negligence. Judgement was entered for the defendant for the sum of N172,219 and the
Plaintiff’s bank appealed. Allowing the appeal, the court of appeal held that the bank
was not negligent by saying that in order to succeed any action in negligence, the
Plaintiff or Complainant must establish there necessary ingredients to it. The
existence of a duty of care peeing to the complainant by the defendant, failure to
attain the standard of care prescribed by the law, and the damage suffered by the
complainant which is usually connected to the duty of breach of care. The Tort of
negligence as we can see in the case of Wema Bnak v BBC (Supra) has the three
ingredients which are;
a) A legal duty owed by the defendant to the Plaintiff
b) A breach of that duty
c) Consequential damage to the Plaintiff arising from the breach of that duty.
see also Orhue v NEPA (1998)10 NWLR Pt 441.

LEGAL DUTY OWED BY THE DEFENDANT TO THE PLAINTIFF .

A man cannot be held responsible in law for every careless act even if the act result
in damage except if he owe the Plaintiff a legal duty of care. A duty of care will be
hold by the defendant in circumstances where it is foreseeable that if he does not
exercise due care, harm will be done to the Plaintiff. See Akita v Aturu (1999)7
NWLR (pt 612)536. The test of foreseeability know as “the neighbours principle”was
laid down by Lord Atkin in Donoghue v Stevenson (1932)AC 562 when he said:
“ The rule that you are to love your neighbour becomes in law, you must
not injure your not injure your neighbour; and lawyer’s question "who
then is my neighbour?" receives a restricted reply. You must take
reasonable care to avoid act or omission 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 closely or
directly affected by my act that i ought reasonably to have them in contemplation as
being so affected when I'm directing my hand to the act or omission are called in
question.
Examples of situation which are legal duty of care are:
a) A teacher owes a duty of care to it's child / student.
b) An occupier of hand go the visitors there.
c) Banker to customers.
d) Maker or repairer of Chattel to the users of chattels.
e) Driver of a vehicle on the road to other road users.
f) Also, a manufacturer of goods owes a duty of care to the customers to ensure that
the goods are free from harmful defects as in the case of Donoghue v Stevenson
(Supra). Where the Plaintiff (Donoghue) drank a bottle of Ginger beer manufactured
by the defendant (Stevenson) which a friend bought from a retailer and gave her. The
bottle allegedly contained the decomposed of a snail which were not or could not be
detected (as the bottle was turbed) until the greater part of the content was consumed.
She alleged that she became ill was a result and sued the defendant. It was held that
the defendant was liable for a breach of legal duty of collection's at which was word
to the Plaintiff.

According to Lord Atkin, a manufacturer of product which he sell in such form

as to show that he intend to reach the ultimate consumer in which they left him with
no reasonable possibility or intermediate examination and with the knowledge that the
absence of reasonable care in the preparation of putting up of the product will result to
an injury to the consumer’s life or property owed a duty to take that reasonable care.
Lord Macmillan in this case said that the categories of negligence are never close.
This in effect means that new classes of persons legally bound or entitled to the legal
exercise of care may from time to time emerge according to the changes in social
needs and standards.
In 1964, it was decided by the house of Lords in Hedley Byrne & Company Ltd v
Heller Partners Ltd (1964)AC 465 that a negligence misrepresentation spoken or
written might give rise to an action for financial loss apart from an contract fiduciary
relationship. In that case, the Plaintiff asked their banker to inquire into financial
stability of a company which they were having business dealings. Their bankers made
inquiry of the company’s bankers who carelessly gave favourable reference about the
company. Reliance on this references cost the plaintiff to lose 17 thousand dollars. The
Plaintiff sued the defendant for careless statement. The action failed because the
defendant had assumed responsibility for their advice, opinion or information, they
would be liable. See Wema bank V BBC (Supra)

NEGLIGENCE AND PUBLIC POLICY

The Public law concept of ultra vices has to some extent been super imposed on the
common law of negligence. The defendant in this case is not liable for any loss that
maybe caused to the plaintiff on policy grounds: Dorset yatch Co Ltd v Home Office
(1969)2 Q.B412 Lord Denning said:

“It is, i think at bottom a matter of public policy which we,

as judges must resolve. These task of duty or no duty is
simply away of limiting the range of liability for
negligence.”

Lord Pearce made that clear in Hedley Byrne & Co Ltd v. Heller partners Ltd (1964)
A.C 465, where he said;
“The Law of negligence had been deliberately limited in his range
by the court insistence that they can be no actionable negligence
in vacuum without the existence of duty to the Plaintiff, for it will
be impracticable to grant relief to everybody who suffers damage
through the carelessness of another. How wide this sphere the duty
of care in negligence is to be laid depend ultimately on the court
assessment of the demand of the society from protection of
carelessness of others.”

In Dorset yatch Ltd V Homes Office (Supra) seven out of ten borstal trainees who
were working on island in a harbour in the custody and under the control of three
officers escaped during night. At this time, the officers had returned to bed leaving
them at their own devices. The seven got on board a yatch docked off the Island and
set in motion. They collided with another yatch, the property of the defendant
damaged it. The defendant sued the home office for the amount of the damage. It was
held that the home office owed a duty of care to the Plaintiff with respect to the
detention and supervision of persons undergoing sentences of borstal training.

Compiled by

Emmanuel Nekpenekpen