Chapter

INTRODUCTION TO THE LAW OF TORTS

The word tort comes from the Latin word tortus, which means crooked. Tort is thus concerned
with crooked/wrong behaviour. It is a breach of a legal duty or infringement of a legal right
arising independently of contract which gives rise to a claim for unspecified damages.

Elements of the definition

1. Breach of a legal duty or infringement of a legal right – there is no liability in tort unless
the law recognizes that a legal duty or right exists which has been breached.
2. Arising independently of contract – no contractual relationship need exist for a claim to
be made [but the existence of a contractual does not preclude liability in tort
3. Claim for unspecified damages – the compensation for the loss is determined by the
courts.

There have been several attempts to define a tort; however, none seems entirely satisfactory.
Perhaps the most acceptable definition of tort was the one given by Sir Percy Winfield who
defined tort as follows:

Tortuous liability arises from the breach of a duty primarily fixed by law; such duty is towards
persons generally and its breach is redressable by an action for unliquidated damages. 1

Unliquidated damages are damages determined by the court, and not previously agreed by the
parties.

In order to understand the definition by Prof. Winfield, it is necessary to distinguish tort from
other branches of the law, and thus to discern how the aim of tort differs from the aims of other
areas of law such as contract law.

It is obvious that in any society of people living together, numerous conflicts of interest will arise
and that actions of one man or group of men will from time to time cause or threaten damage to
others. This damage may take many forms such as injury to the person, damage to physical
property, damage to financial interests, injury to reputation and so on; and whenever a man
suffers damage he is inclined to look to the law for redress. Thus when damage is caused to
another person in any of such situations, that person has breached a duty towards the other
person - he has wronged him, he has committed a tort and will be liable to pay some
compensation to him.

In the great majority of tort actions coming before the courts, the plaintiff is seeking monetary
compensation (damages) for the injury he has suffered. In many cases, however, the plaintiff is

1
See Rogers, W.V.H, Winfield and Jolowicz on Tort (13th edn. International Student Editions, Sweet & Maxwell,
London, 1990)

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seeking an injunction to prevent the occurrence of harm in the future and in this area the
‘preventive’ function of tort predominates.2

The law of torts deals with a wide variety of wrongs - intentional torts, negligence and strict
liability.

i. Intentional torts and unintentional torts

Intentional torts refer to wrongs in law, which a person is held for having acted intentionally or
knew that what he did would harm a person. In intentional torts, the question to ask is whether
the defendant intended or desired to affect the interest of the plaintiff. If his intention was to
affect the interest of the plaintiff or he knew his action was likely to lead to the result, he is
liable. This is because his intention was to invade the plaintiff’s interest.3

ii. Negligence

A negligent act is an act that a reasonable person will conclude would lead to the invasion of the
interest of the plaintiff. Reasonable person is the ordinary layman or the ordinary technical
person as the case may be depending on the matter in issue. Negligence may signify full
advertence (regard) to one’s conduct and the consequences thereof. More usually, it signifies
inadvertence by the defendant, a simple example, being the motorist who falls asleep at the
wheel. In advertent negligence, the tortfeasor has displayed mere negligence. In advertent
negligence, a tortfeasor displays an attitude of mental indifference to obvious risks. An
illustration of full advertence is Vaughan v Menlove,4 where the defendant had been warned that
his haystack was likely to overheat and to take fire, which might spread to the land of his
neighbour. He said he would chance it, and he was held liable for the damage that occurred when
the stack actually took fire.

iii. Strict liability

This finds a person liable in law for an act or omission even if his/her conduct was unintentional.
A classic example of strict liability is the rule in Rylands v Fletcher.5 This rule takes its name
from the case in which it was first formulated. It provides that, if a person brings on his land and
keeps there something likely to do danger if it escapes, he keeps it there at his peril and will be
strictly liable for any damage which follows from an escape, even if there has been no
negligence.

Distinction between torts and other branches of the law6

1. Tort and Contract

2
For example in cases of defamation, nuisance, etc the plaintiff may seek an injunctive relief against the defendant.
3
Examples of intentional torts include assault, battery, false imprisonment, trespass to land; etc
4
(1837) 3 Bing N.C. 468
5
(1868) LR 3 HL 330
6
For a fuller discussion of the distinction between torts and contract on the one hand and torts and crime on the
other see Kumado, Kofi Introduction to the Law of Torts in Ghana (Black Mask Limited, Accra 2009)

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It may be necessary here to make some distinction between the law of contract and the law of
tort. The law of tort is imposed on citizens irrespective of their consent whilst contracts arise
from agreements between contracting parties. The law of contract protects a sole interest for the
performance of promises whilst the law of tort protects interests that are diverse. Contract
therefore comes about as a result of an agreement between two parties whilst the law of tort is on
all persons not to cause harm, suffering or injury to others. It is possible though that the same set
of facts give will rise to an action in tort as well as contractual liability; as for example a
statement constituting misrepresentation in contract may also be actionable in tort as deceit.

2. Tort and Crime

A tort is a wrong, which must be distinguished from a crime. A crime is a wrong the sanction of
which involves punishment. When a crime is detected, it is the responsibility of the State or
Republic to prosecute an individual for the commission of the crime. The interest of the
complainant is submerged to that of the state. The State ensures that peace and tranquility
prevails. The law of torts provides a mechanism whereby individuals can protect their rights, and
if infringed, take action against the wrongdoer. The injured party files a suit in Court and
prosecutes his own case. Criminal law seeks to punish wrongdoers while the law of tort aims to
compensate those who have suffered as a result of the tort. An individual can sue another for tort.
The action does not have to be commenced by the state. A person who commits a tort is called a
tortfeasor. The difference between a tort and a crime may be better appreciated with Lord
Diplock dictum in Knuller v DPP, when he attempted to pinpoint the essential differences
between civil and criminal law as:

Civil liability is concerned with the relationship of one citizen to another; Criminal liability is
concerned with the relationships of a citizen to society organized as a state. 7

3. Damage and Liability

Damage is loss suffered by one person or harm caused to the person. This damage may be
physical or economic, resulting from a wrongful act or default (i.e. not acting) and generally
leading to the award of a measure of compensation. A person therefore suffers damage because
he has lost something or has been harmed by another person’s wrongful acts. Liability is the
accountability for some state of affairs to which one’s conduct has contributed, together with an
obligation to repair any injury caused. A person is therefore liable for his wrongful acts and he
has to compensate the other whom he has wronged. It is important to note that, generally, a
person cannot be held liable for the tort of another person.8

4. Forms of Liability

There are different ways in which liability may arise.

7
[1973] AC 435, HL
8
The only exception is to be found in cases of vicarious liability where an employer is found liable for the torts
committed by his employees in the course of their employment.

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 1. Liability may be imposed as a legal consequence of a person’s act or his omission if he is
under a legal duty to act. For example, if the Electricity Company of Ghana (ECG) was to
remove a live wire but did not cover same and a man was electrocuted, by stepping on the
wire the Electricity Company of Ghana would be held liable for the injuries caused.

2. Liability may also be imposed upon one person as the legal consequence of the act or
omission of another person with whom he stands in some special relationship such as
master and servant. This is known as vicarious liability. In some cases, liability is based
on fault, sometimes an intention to injure is required but more often negligence is
sufficient. In other cases, which are called cases of strict liability, liability is in varying
degrees independent of fault.9

9
For a fuller discussion of vicarious liability, see Chapter 3 above

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 Chapter 9

TORT OF NEGLIGENCE

Negligence is falling short of an objective standard of conduct. Lord Wright described

negligence as ‘the infliction of damage as a result of a breach of a duty of care owed by the
defendant to the plaintiff’.10 It is the breach of any duty to take reasonable care or exercise
reasonable skill. Negligence occurs when, for example, A drives his car carelessly and it knocks
down B and injures him. The law recognizes that in certain situations a person whose
carelessness leads to the injury of another is liable to pay damages to the injured party as
compensation.

Negligence as a tort is the breach of a legal duty to take care which results in damage, undesired
by the defendant, to the claimant. In Lochgelly Iron and Coal Co v M’mullan, 11 Lord Wright
defines negligence as follows:

In strict legal analysis, 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 is owing.12

To succeed in an action for negligence, the claimant must prove the following; namely:

i. A duty of care;
ii. A breach of that duty;
iii. Resultant damage

NB – Claimants must establish all of these in order for their claims to be successful

1. DUTY OF CARE

The concept of duty of care in negligence is at the heart of the tort of negligence. It emerged
towards the end of the 18th century, and is now firmly rooted that there can be no doubt that an
action in negligence must fail where a duty is not established. The first attempt to rationalize the
situations in which a duty may be imposed was made in Heaven v Pender by Brett, MR when he
stated:

Whenever one person is by circumstances placed in such a position with regard to another that
everyone of ordinary sense who did think would at once recognize that if he did not use ordinary
care and skill in his own conduct with regard to those circumstances he would cause danger or
10
See Lochgelly Iron & Coal Co. v M’Mullan [1934] A.C. 1, 25
11
[1934] AC 1
12
Ibid at page 25

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 injury to the person or property of the other, a duty of arises to use ordinary care and skill to
avoid such danger.13

A man will only be liable in negligence if he is under a legal duty to take care. In the tort of
negligence, breach of duty is the chief ingredient of the tort; in fact there is no other except
damage to the claimant. The duty in tort is not simply a duty to act carefully, but a duty not to
inflict damage carelessly.

The crucial element of the concept of duty of care has been popularly generalized in Donoghue v
Stevenson.14 In this case, a ginger beer manufacturer sold a bottle of ginger beer in an opaque
bottle to a retailer. The retailer then resold it to a customer who purchased the bottle of ginger
beer at the retailer’s café for a friend to drink. Unfortunately, the bottle not only contained ginger
beer but also a badly decomposed snail. This snail had found its way into the bottle at the
factory. The woman who drank the contents became ill and sued the manufacturer for
negligence. The case proceeded to the House of Lords on the preliminary point as to whether an
action existed for the tort of negligence irrespective of the fact that there was no contract
between the appellant and the manufacturer of the ginger beer. The basis of this case was that the
manufacturer owed a duty to the consumer to take care that there was no harmful substance in
his product, that he had breached this duty and that she had been injured as a result. The
defendant had acted negligently and was obliged to compensate the plaintiff.

A duty of care is imposed on all persons generally not to cause harm to others. If a person drives,
he is under a duty to have a proper look out so that he does not knock down other road users or
destroy property. So whether a person likes it or not, he has a duty to take care not to cause harm
to others.

i. Development of the concept of duty of care

The law provides that a person will only be liable if he is under a legal duty to take care. But how
can it be established that a person is under a legal duty to take care?

ii. The neighbour test

The neighbour test was formulated by Lord Atkin in a passage in his judgment in seminal
Donoghue v Stevenson when he said:

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour;
and the lawyer’s question, (Who is my neighbour?) receives a restricted reply. You must take
reasonable care to avoid acts or omissions 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 so closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or omissions which
are called in question.15
13
(1882) 11 Q.B.D. 503, 580

14
[1932] AC 562
15
Ibid at page 580

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The defendant’s duty is to take reasonable care to avoid causing foreseeable harm and it is owed
to anyone closely and directly affected by the defendant’s conduct. The close relationship
necessary between the defendant and plaintiff in order for a duty to exist is often referred to as a
relationship of proximity between the parties.

The status of the neighbour principle as a rule of general applicability was underlined by the
House of Lords in Home Office v Dorset Yacht Co. Ltd.16 Here the plaintiff’s yacht was damaged
by borstal trainees (youngsters who had been criminally convicted) who had escaped while on a
training exercise on an island. They had been carelessly left unsupervised by their guards.
Applying the neighbour principle, it was held that the defendant owed a duty of care to the
plaintiff whose yacht had been moored between the island and the main land, as it was
reasonably foreseeable that the trainees might use the yacht as a means of escape. The Home
Office was thus vicariously liable for the failure of its employees to supervise the trainees. This
breach of duty caused the plaintiff’s loss for which the Home Office was liable. In a leading
judgment Lord Reid stated:

Donoghue v Stevenson may be regarded as a milestone, and the well known passage in Lord
Atkin’s speech should I think be regarded as a statement of principle. It is not to be treated as if it
were a statutory definition. It will require qualification in new circumstances. But I think that the
time has come when we can and should say that it ought to apply unless there is some
justification or valid explanation for its exclusion.

Similarly, in Acheampong v Overseas Brewery Ltd, 17 the plaintiff claimed that he suffered after
drinking beer containing kerosene which had been negligently manufactured by the defendants.
In their defence, the defendants said their system of washing bottles was foolproof. The court
held that although the system was thorough and foolproof, the initial stages of washing were
human and there was no evidence that this stage was foolproof. There was a clear inference of
negligence which was not met by defendants.

Restrictions on the application of the neighbour principle

The courts have always taken the view that a careless person should not have to compensate all
the people who suffer as a result of his conduct. For example, when a vehicle driver is injured
due to negligence of another driver, several people may also be affected. There may be a witness
to the accident who suffers nightmares as a result of his experience and a trader to whom the
driver was delivering goods may lose profits because of inadequate stock. In such cases, the task
of the court is to consider the interests of the victims whilst at the same time being fair to the
careless person. In Donoghue v Stevenson the court discussed when a duty of care arises. A
principle was developed in that case that has become known as the ‘neighbour principle’. One
way to determine when the neighbour principle applies is to list the types of situations where a
duty of care has been held to exist. There are two common factors that must exist before the law
will recognize the existence of duty of care. These factors are foreseeability and proximity. For a
duty of care to exist, it must be shown that it was foreseeable that the action of the defendant

16
[1970] AC 1004, HL
17
[1971] 1 GLR 7

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could have caused harm to the plaintiff. The test is one of reasonable foreseeability. It is an
objective test. The question to ask is whether a reasonable person would foresee that damage
may result from another person’s actions. You do not ask whether that person believes damage
will ensue.

a) Is there a sufficient relationship of proximity between the defendant and the plaintiff?
Proximity does not mean physical proximity. It simply means that the parties must be sufficiently
close so that it is reasonably foreseeable that one party’s negligence would cause loss or damage
to the other. This requirement answers the question posed by Lord Atkin in Donoghue v
Stevenson: Who is my neighbour? Despite the reference to ‘neighbour’, the test is not one of
physical proximity, but of the foresight of a reasonable man. Was injury to the plaintiff the
reasonable foreseeable consequence of the defendant’s acts or omissions? Sometimes there may
be physical proximity but no duty, as where a person builds so as to obstruct a neighbour’s view.
Similarly, there may be a duty without any physical proximity, as when goods manufactured in
Accra injure somebody in Navrongo. For this reason therefore, my neighbours are “persons who
are so closely and directly affected by my act that I ought reasonably to have them in
contemplation”.

In Bourhill v Young,18 for example, a lady heard a motor accident some 45 feet away. She did not
see the accident because it happened on the other side of a stationary vehicle. Nevertheless she
saw blood on the road, suffered severe shock, and lost her unborn child. Her claim for damages
failed because she was too far from the accident and not within the foreseeable range of harm.
Again in Boardman v Sanderson,19 a driver negligently backed his car from a garage, and injured
a young boy. The father, who was known to be nearby, heard the scream and ran to the scene. He
recovered damages for his nervous shock. This harm was not too remote, because he was a
relative of the main victim and was known to be in the close vicinity.

Similarly, in King v Phillips20 the defendant carelessly drove his taxi over a boy’s cycle. The boy
who was not on the bicycle screamed. His mother, the plaintiff heard the scream and on looking
out of the window saw the crushed bicycle, but not her son. As a result, she suffered shock which
made her ill. She failed in her action against the defendant because it was held that a driver could
only reasonably foresee that his carelessness would affect other road users and not persons in
houses. He did not therefore owe a duty of care to the plaintiff.

By way of contrast, in McLoughlin v O’Brian,21 the plaintiff’s husband and three children were
involved in a car accident caused by the defendant’s negligence. All four of her family were
injured, one so seriously that she died almost immediately. An hour later, a friend told the
plaintiff of the accident at her home two miles away. They went to the hospital where the
plaintiff was told of the death and then saw the three remaining family members before they had
been properly cleaned up. Though, a woman of reasonable fortitude, the plaintiff suffered severe
shock, organic depression and a change of personality. The House of Lords held that in coming
upon the ‘immediate aftermath’ of the accident in which her family had been so grievously
18
[1943] AC 92, HL
19
[1964] 1 WLR 1317
20
[1953] 1 Q.B.429
21
[1983] 1 AC 410, HL

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injured, the plaintiff was well within the scope of the duty to avoid nervous shock. Witnessing
the aftermath, the Law Lords said, was equivalent to witnessing the incident itself since nothing
in the horror of the sight that met her had changed.

b) If so, are there any policy reasons for negating or reducing the class of persons to
whom a duty is owed?
The second test formulated by Lord Wilberforce was applied in Alcock v Chief Constable of
South Yorkshire Police,22 Liverpool Football Club supporters were injured or killed in the crash
when a crowd at Hillsborough football ground in Sheffield pressed forward against the barristers.
It was claimed that police officers at the scene had been careless in allowing too many supporters
into a small area. The plaintiffs were relatives who had suffered nervous shock in seeing the
accident in a live TV broadcast. The House of Lords held that the police did not owe a duty to
every relative who might conceivably be watching TV at the time. It was not reasonably
foreseeable that psychiatric illness would be caused, except in the case of parent/child and
husband/wife relationship.

Similarly, in Mulcahy v Ministry of Defence,23 the English Court of Appeal held that a
serviceman did not owe his fellow servicemen a duty of care in warlike conditions for it would
not be fair, just and reasonable to impose such a duty.

Economic Loss and Negligent Misstatement

In the beginning, the courts maintained that acts which, although cause foreseeable harm, namely
damage another in his financial interests, did not involve physical injury to his person or property
and therefore not actionable as negligence. It was maintained for example, for a long time that
false statements causing pecuniary loss to the plaintiff did not constitute a cause of action in
negligence, but only in deceit or contract. The courts, it was maintained, were concerned with
physical loss or damage to the person or property and not intangible loss resulting from
misstatement. There is a duty of care not to cause economic loss by negligent misstatement, but
the duty exists only where the person who makes the statement foresees that it may be relied on.
There must therefore be a special relationship between the maker and recipient of the statement.
The special relationship test which has been adopted by the House of Lords in certain cases was
laid down by Lord Denning in Candler v Crane Christmas as:

A special relationship is one where the defendant gives advice or information and the plaintiff
relies on that advice. The defendant should realize that his words will be relied on either by the
person he is addressing or by a third party.24

The facts of Candler v Crane Christmas are as follows: an accountant carelessly prepares a
company’s accounts. He knew at the time that this was to be shown to a prospective investor.
The investor relying on the rosy picture painted in the accounts invested heavily in the company.
Later the company went into liquidation and he sought to sue the accountants for negligently

22
[1992] 1 AC 310, HL
23
[1996] QB 732, CA
24
[1951] 2 KB 164, CA

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preparing the accounts. It was held by the majority of the Court of Appeal that, absent a
contractual or fiduciary relationship between accountant and plaintiff, there would be no liability.
The position at common law appears to have changed since 1964 where it has been possible to
claim damages for a negligent misrepresentation under the principle laid down in Hedley Byrne v
Heller & Partners,25 which provides that where there is a special relationship between the person
making a statement and the recipient of it, a duty of reasonable care is owed in making it. If the
duty is broken damages will be available, representing the loss suffered. The special relationship
concept is central to the decision. The quality of this relationship was referred to by Lord Morris
when he stated:

Where in a sphere in which a person is so placed that others could reasonably rely on his
judgment or his skills or on his ability to make careful inquiry, a person takes it on himself to
give information or advice to, or allows his information or advice to be passed on to another,
who, as he knows or should know, will place reliance on it then a duty of care will arise.

The facts of Hedley Bryne v Heller & Partners Ltd are as follows. The plaintiffs in that case
were advertising agents. They were anxious to know whether they could safely give credit to a
company, Easipower, on whose behalf they had entered into various advertising contracts, and
they therefore sought banker’s references about Easipower. For this purpose, the plaintiff’s
bankers approached the defendants who were Easipower’s bankers, and on two occasions, the
defendants gave favourable references. These were passed on to the plaintiff’s bankers and
although the defendants did not know who the plaintiffs were and had in fact marked their
communication to the plaintiff’s bankers ‘confidential, for your private use’, they did not know
that the injury was made in connection with an advertising contract. They must also have known
that the references were to be passed on to a customer. In reliance on these references, the
plaintiffs incurred expenditure on Easipower’s behalf and when Easipower went into liquidation,
they sought to recover from the defendants over £17,000 owed to them in an action based upon
the defendants’ alleged negligence in giving favourable references concerning Easipower. It was
held that a duty of care in making statements was a legal responsibility and they would have
succeeded, but for the disclaimer of responsibility. The court said that there may in certain
circumstances be a duty of care upon the maker of a statement and thus that person may be liable
for a false statement honestly but negligently made.

In Smith v Eric S. Bush,26 a surveyor employed by a building society to value a house knew that
his report would be relied upon by a specific buyer who had a right to see it. The House of Lords
held the surveyor liable to the buyer (who was not his client) for careless omission.

In order to succeed in such a case, the plaintiff must show a special relationship by proving that:

i. he relied on the special skill and judgment of the defendant and

ii. the defendant knew or ought to have known of this reliance and thus accepted
responsibility for making the statement carefully.

25
[1964] AC 465,HL
26
[1989] 2 All ER 514

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A fiduciary relationship such as that between a solicitor and client is capable of giving rise to a
duty of care in making statements for breach of which the plaintiff may recover compensation.

SCM (UK) Ltd. v W.J. Whittall & Sons Ltd27 is a case that arose from the Hedley Byrne
revolution. In that case, the defendants were building contractors. While rebuilding a boundary
wall, one of their workmen damaged an electric cable owned by the electricity board which ran
alongside the road. The cable supplied electricity to several factories bordering the road,
including the plaintiff’s factory. The plaintiff’s manufactured typewriters and copying machines.
They suffered particularly because at the time of the interruption, they had molten materials in
their machines. These materials solidified owing to lack of electric heat. The company was put to
much trouble in getting the machines clear. They had to strip them down and chip away the
solidified material and re-assemble the machines. Some parts of the machines were damaged
beyond repair. They lost the value of these items as well as profit from one full’s day production.

The plaintiffs brought this action alleging that that the defendants had negligently damaged the
cable thereby causing a seven hour power failure in their factory, resulting in damage to
materials and machines and consequential loss. The plaintiffs also alleged that the defendants
were negligent, and that the consequences of their acts were reasonably foreseeable and that they
owed a duty to the plaintiffs to take reasonable care not to damage the cable. The defendants
denied that they owed any duty of care to the plaintiffs or that they were negligent. Alternatively,
they also argued that the damages were too remote.

On the issue of whether the defendants owed the plaintiffs a duty of care, the court held that the
defendants were liable. The defendants appealed. On appeal, the court was of the view that, the
defendants knew that the cable supplied current to the factory owners in the neighbourhood and
that, if they damaged the cable, the current would be cut off and damage would be suffered and
that based on this the defendants owed the plaintiffs a duty of care and, accordingly, they were
liable for the material damage and consequent loss of production suffered.

Similarly, in Caparo Industries plc v Dickman,28 the firm of accountants engaged by a company
to audit its annual accounts was alleged to have done so negligently, so that the accounts looked
misleading. As a result, the plaintiffs made a successful but unwise take-over bid and suffered
financial loss. The House of Lords held that the annual audit was not for the benefit of potential
buyers of a company’s shares. Nor was it carried out in order to influence existing individual
shareholders in deciding whether or not to buy more shares in the company. Therefore, even if
the auditors had been negligent, they did not owe an actionable duty of care. To have held
otherwise might have made them liable to a very large number of people.

2. BREACH OF DUTY

The second element which the plaintiff in a negligence action must prove is that the defendant’s
conduct amounted to a breach of the duty owed. Proving this breach involves measuring the
defendant’s conduct against the standard required of persons engaged in the activity or conduct
27
[1970] 3 All ER 245, CA
28
[1990] 2 AC 605, HL

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in question by the law. A breach of duty is a failure to take reasonable care. Alderson B
described breach of duty in Blyth v Birmingham Waterworks Co,29 as:

Negligence (in the sense of a breach of duty) is the omission to do something which a reasonable
man guided upon those considerations which ordinarily regulate the conduct of human affairs,
would do, or something which a reasonable and prudent man would not do.

Thus the fact that the defendant has acted less skillfully than the reasonable person would expect
will usually result in breach being established. This is the case even where the defendant is
inexperienced in his particular trade or activity.

STANDARD OF CARE

The duty of care is broken when a person fails to do what a reasonable man would do in the same
circumstances. The standard of care required of a defendant in a particular case will vary
according to the circumstances of the case and the skills which the defendant holds himself out
as possessing. The standard used for arriving at or resolving the issue of breach is that of the
reasonable man. The standard of care required by the law of negligence is an objective one.
What is objective for this purpose is incorporated in the concept of the “reasonable man”.
Clearly the degree, or standard of care to be exercised by such a reasonable person will vary
depending on circumstances, but the following factors will be taken into consideration in
determining the issue:

1. The seriousness of the risk

The degree of care must be balanced against the degree of risk involved if the defendant fails in
his duty. It follows, therefore, that the greater the risk of injury or the more likely it is to occur,
the more the defendant will have to do to fulfill his duty. The degree of care to be exercised by
the defendant may be increased if the plaintiff is very young, old or less able bodied in some
way. The rule is that you must take your victim as you find him (this is known as the egg-shell
skull rule)

2. The likelihood of injury or foreseeability of harm

The courts consider whether the defendant is engaging in an activity which is fraught with
danger. The more dangerous the activity, the greater the degree of care required. This point is
illustrated in Bolton v Stone;30 a batman hit a ball out of the ground during a cricket match. It
struck and injured Miss Stone, who was in the street. The top of the fence surrounding the
ground was 17 feet higher than the pitch at the point where the ball crossed, and Miss Stone was
about 100 yards from the batsman. It was proved that a cricket ball had been hit out of the
ground on only six occasions in 30 years, and there was evidence that the shot was exceptional.
It was held that, in the circumstances, the cricket club had taken reasonable care, and was not
liable. It would have been otherwise if balls had landed in the road frequently. The House of
Lords considered that the likelihood of injury to a person in the plaintiff’s position was so slight
that the cricket club was not negligent in allowing cricket to be played without having taken
additional precautions such as increasing the height of the fence.

29
(1856) 11 Ex. 781
30
[1951] A.C. 850

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Similarly, in Goodman Moshie v Kwaku,31 the plaintiff’s thumb was injured while operating his
employer’s unfenced circular saw in the course of his employment. The thumb had to be
amputated. The plaintiff claimed that the defendant was in breach of his duties under the
Factories Ordinance, 1952 and regulations made thereunder. The plaintiff also alleged a breach
of the employer’s duty of care at common law and contended that that it was these breaches of
duty that had led to his injury. The High Court held that the defendant was under a common law
duty to take reasonable care to provide proper appliances, maintain them in proper condition and
so carry on his operations as not to subject his employees to unnecessary risks. On the facts, this
duty had been breached and therefore the defendant was liable at common law for damages for
negligence.

3. The magnitude or seriousness of the risk or harm

The law does not require the highest possible degree of care, but that which is commensurate
with, inter alia, the seriousness of injury risked. This depends on the consequences of the activity
in question. In other words, greater care will be required if the person exposed to the risk possess
known characteristics which either increases the likelihood of injury or, if an injury occurs,
makes the consequences more serious. Thus greater care is generally expected towards children
and blind persons. In Paris v Stepney Borough Council,32 P who had only one eye, worked for
the council as a vehicle welder. He was blinded completely when a spark flew into his one good
eye. He sued his employers for negligence claiming that he should have been supplied with
goggles. The evidence was that the goggles were not thought necessary for two eyed welders.
However since the loss of a person’s only good eye is far more serious than the loss of one of
two good eyes, goggles should have been supplied to P. The council had broken their duty of
care.

4. The importance or social value of the activity, conduct or enterprise engaged in or the
end to be achieved
In deciding whether the defendant is in breach, the courts consider the social value or importance
of the conduct, enterprise or activity engaged in. Where the object to be achieved is of national
importance or societal benefit, the courts are minded to lower the standard of care. In Watt v
Hertfordshire County Council,33 a fireman was injured by lifting- gear (jack) while travelling in a
lorry not specially fitted for carrying the gear to an emergency where a woman was trapped
under a heavy vehicle. It was held that, though the fire authorities were under a duty to provide
proper appliances and to take reasonable care to avoid exposing their firemen to unnecessary
risks, they were not negligent in requiring the firemen to take abnormal risks which they were
ready to take in order to save life and limb. In these types of cases, the law’s attitude clearly is
that necessity may justify the taking of greater risk, i.e. a lower standard of care.

5. The difficulty or expense involved in averting the foreseeable harm or taking safety
measures as against the risk.
Here different standards apply. In the case of great risk which no precautions can substantially
reduce, the duty of care may be discharged only by ceasing the dangerous operations altogether.
31
[1965] GLR 566
32
[1951] A.C. 367
33
[1954] 1 WLR 835

13 | P a g e
But where the risk is slight, slight precautions will suffice. In Latimer v A.E.C. Ltd.,34during an
unusually heavy rainstorm, the floors of a large factory were flooded making the floor slippery.
The defendants did all they could to clear all the water and make the factory safe. The plaintiff
nevertheless slipped and was injured. Plaintiff alleged negligence, claiming that the factory
should have been closed. It was held that the risk of injury did not justify such a drastic measure.
Consequently, the plaintiff’s claim failed.

6. Whether the activity or conduct complies with general and approved practice.
Since the standard of care is determined by reference to community values, considerable
evidentiary weight is attached to whether the defendant’s conduct conformed to standard
practices accepted as normal and general by other members of the community in similar
circumstances. The defendant may be able to escape liability by showing that his conduct in the
circumstances accorded with accepted community practices, i.e. that he had followed the usual
and approved practice. However he must show that the approved practice itself is reasonable.
The common practice itself may be condemned as negligent, if unreasonable. The determination
of the reasonableness or otherwise of the conduct is made based on the circumstances prevailing
at the time it was engaged in. In engaging in this balancing exercise, the courts, as has already
been indicated, use the yardstick of the reasonable man.

THE STANDARD OF CARE

i. The reasonable man test

In deciding whether or not the duty of care has been broken, the standard against which the
defendant’s conduct will be measured is that of the so-called reasonable man. Negligence will be
deemed to be present if the defendant did not act in a reasonable manner in the circumstances of
the situation. The reasonable man is said to be the model of the standard to which all persons are
required to conform. The reasonable man is the embodiment of all the qualities which are
demanded of a good citizen. The reasonable man’s standard, then, is, in a sense, a certain
average of conduct which satisfies the peculiarities, generally, of the individual defendant. The
standards which the law requires a person to attain must be objectively established. A person will
be regarded as negligent, if he fails to act according to that standard, even if it is more difficult
for him as an individual, to do so than to others. The reason is that everybody is entitled to
expect a certain level of protection from the acts of others. So the concept of the reasonable man
does two things:

i. it judges whether the defendant was careless; and

ii. it also defines the level of safety a plaintiff is entitled to expect.

ii. Standard of care of a professional

The reasonable man is not expected to be skilled in any particular trade/profession. If, however, a
person acts or purports to act in a professional capacity he must show the care and skill of an
ordinary man of that profession. The skill of an ordinary man of that profession will depend on
the profession and standards and practices existing at the time, i.e. not those applied with more

34
[1953] A.C. 643

14 | P a g e
advanced knowledge.35 The above seems to have support from the dictum of McNair J when
discussing the standard of care required of a professional man stated in Bolam v Friern Hospital
Committee,36 thus:

… Where you get a situation which involves the use of some special skill or competence, then the
test as to whether there has been negligence or not … is the standard of the ordinary skilled man
exercising and professing to have that special skill. A man need not possess the highest expert
skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary
competent man exercising that particular art …

The dictum of McNair J was approved by the House of Lords in Whitehouse v Jordan,37 where a
senior hospital registrar in charge of a difficult birth used forceps to assist in the birth. The use of
forceps was unsuccessful and the baby was eventually delivered by Caesarean section. The baby
was born with brain damage; which was alleged to have resulted from the defendant’s negligence
in pulling too hard and too long with the forceps. The House of Lords in confirming the decision
of the Court of Appeal held that the defendant was not liable in negligence even though he had
made an error of judgment.

The House of Lords speaking through Lord Fraser said thus:

The true position is that an error of judgment may, or may not, be negligent; it depends on the
nature of the error. If it is one that would not have been made by a reasonably competent
professional man professing to have the standard and type of skill that the defendant held himself
out as having, and acting with ordinary care, then it is negligent. If, on the other hand, it is an
error that a man, acting with ordinary, might have made, then it is not negligent.

A barrister will not be liable for a breach of the duty of care he owes to his client in respect of
work unconnected with litigation merely because his opinion turns out to be wrong or he
overlooks one of a number of relevant authorities. However, there is no reason why the general
duty of care owed by him should be different from that owed by any other professional. In
Fodwoo v Law Chambers & Co.,38 where a shop owner at Agona Swedru who took out a
burglary insurance policy with an insurance company had his shop broken into by thieves. When
the insurance company repudiated liability on this policy, the plaintiff retained the defendant
firm of legal practitioners to prosecute an action for the recovery of his losses. The plaintiff’s
case was handled by several members of the defendant’s law firm but the lawyer who finally had
charge over its conduct in court failed to prove actual loss sustained by the plaintiff by not
tendering certain documents in the possession. Consequently, judgment was given against the
plaintiff. When the defendant attempted to remedy the omission which had led to the loss by
applying for review of the judgment by exhibiting the documents in its possession, the
application was dismissed. The plaintiff sued the firm in respect of its negligent failure to prove
the loss sustained by the plaintiff, thus causing him to lose his action against the insurer. The
High court dismissed this action. The plaintiff appealed to the Supreme Court. The Supreme
Court held that a lawyer can be sued in negligence on his conduct of a case and the negligence of
35
See Roe v Minister of Health [1954] 2 QB 66, CA
36
[1957] 2 All ER 118
37
[1981] All ER 267
38
[1965] GLR 363

15 | P a g e
one partner of a firm of solicitors is the negligence of the whole firm for which the latter can be
sued.

The decision in Fodwoo supra is a departure from the English case of Rondel v Worsley,39 in
which the House of Lords had decided that a barrister appearing in court was immune from
liability for professional negligence. In the Worsley’s case the plaintiff, who had been convicted
of causing grievous bodily harm, sued his barrister for professional negligence. He claimed that
the defendant barrister had failed to take reasonable care in the conduct of his criminal defence
and that he would have been acquitted if the case had been properly handled. The House of
Lords held that the plaintiff’s claim failed; as a barrister’s conduct of a case in court could never
give rise to a claim in negligence.

iii. Standard of care of an amateur

An amateur who undertakes the job of an expert will be judged by expert standards. This was
considered in Nettleship v Neston where the English Court of Appeal held that a learner driver
was in breach of her duty of care to the plaintiff, a passenger, for failing to demonstrate the
driving skills of a reasonably competent qualified driver, and was liable for the injuries sustained
by the plaintiff as a result.40

Similarly in Wilsher v Essex Area Health Authority, the English Court of Appeal held that
inexperienced was no defence to an action in negligence against a junior doctor, who would be in
breach of his duty of careif he failed to demonstrate the skill of a reasonably competent qualified
doctor. On the facts of the case, however, the junior doctor had discharged his duty by asking a
more senior colleague to check his work.

If a person is carrying on a trade or profession, the standard of care expected is of a reasonably

competent person carrying on that trade or profession (e.g. a reasonably competent engineer,
solicitor or accountant). A professional person will be said to have been negligent although he
has done his best if he does not meet the general standards expected of professionals in his
profession. However, there are special rules to assess doctors and barristers. A high standard of
proof is required to prove that a doctor has been negligent. Thus in Whitehouse v Jordan,41 it was
held that although a doctor had caused damage to a patient by pulling too hard and too long with
the forceps while delivering the patient during his birth, it was an error of clinical judgment and
the doctor was not negligent.

PROVING THE DEFENDANT’S BREACH OF DUTY

The normal rule in civil cases is that the plaintiff must adduce evidence to prove his case on the
balance of probabilities. It will therefore be the plaintiff’s job, in a negligence action, to show
that the defendant did not act in a reasonable way. If he is unable to do this, his claim will fail. In
Waklin v London and South Western Railway Co., 42 the body of the plaintiff’s husband was
39
[1969] 1 AC 191
40
[1971] 2 QB 691, CA
41
[1981] 1 WLR 246, HL
42
(1886) 12 App.Cas 41

16 | P a g e
found near a level crossing on a railway. He had been hit by a train but there was no evidence to
suggest what had happened. The accident could have been his own fault or it could have been
attributable to the fault of the defendant. As the plaintiff was unable to prove that the defendant
acted in an unreasonable manner, he claim failed.

The maxim - Res ipsa loquitur

In an ordinary negligence suit, the burden of proving negligence lies on the plaintiff or he who
alleges. But, in certain cases, it is thought unfair to ask the plaintiff to provide this proof because
somebody else (i.e. the defendant) is in a better position to explain what happened. Those
situations where fairness requires that the defendant, rather than the plaintiff, should be called
upon to explain what happened are described as res ipsa loquitur – [literally means the thing for
itself speaks] That is to say, in some circumstances, the mere fact that an accident occurs raises
an inference of negligence against the defendant; then we say the occurrence tells its own story.

The doctrine of res ipsa loquitur is not a rule of law; it merely describes the state of the evidence
from which one may draw an inference of negligence to enable justice to be done where the
cause remains unknown. The essence of the maxim res ipsa loquitur was discussed in Barkway v
South Wales Transport Co Ltd,43 in holding (1) thus:

The application of the doctrine of res ipsa loquitur which was no more than a rule of evidence
affecting onus of proof of which the essence was that an event which, in the ordinary cause of
things was more likely than not to have been caused by negligence was by itself evidence of
negligence, depended on the absence of explanation of an accident, but although it was the duty
of the respondent to give an adequate explanation, if the facts were sufficiently known, the
question ceased to be one where the facts spoke for themselves and the solution must be found by
determining whether or not on the established facts, negligence was to be inferred.

For example, a barrel of flour that falls out of a warehouse on top of a passerby in the street is
more consistent with negligence on the part of the warehouseman than any other explanation.

Conditions for the application of the maxim Res ipsa loquitur

In the Halsbury’s Laws of England, the conditions necessary for the application of res ipsa
loquitur are stated thus:

The maxim res ipsa loquitur applies only where the causes of the accident are unknown but the
inference of negligence is clear from the nature of the accident, and the defendant is therefore
liable if he does not produce evidence to counteract the inference. If the causes are sufficiently
known, the case ceases to be one where the facts speak for themselves and the court has to
determine whether or not, from the known facts, negligence is to be inferred. 44

Similarly, in Dumgya v Sports Council of Ghana, Anin JA summed up the maxim res ipsa
loquitur as follows:

From the decided cases, it is settled that the maxim res ipsa loquitur comes into operation (i) on
proof of the happening of the unexplained occurrence; (ii) when the occurrence is one which

43
[1950] 1 All ER 392
44
See Halsbury’s Laws of England, 3rd edn, (vol 28) para 81 at page 79

17 | P a g e
 would not have happened in the ordinary course of things without negligence on the part of
somebody other than the plaintiff; and (iii) the circumstances point to the negligence in question
being that of the defendant rather than that of any other person.45

The principal requirement is that the mere fact of the accident having happened is inconclusive
unless the accident is able to tell its own story and raise the inference of negligence so as to
establish a prima facie case against the defendant. The story must be clear and unambiguous.
There are basically three conditions which must exist before the maxim res ipsa loquitur can be
invoked:

1. There must be reasonable evidence of negligence;

2. The thing causing the damage must be under the direct control or management of the
defendant or his servant; and
3. The accident must be of such a type that would not occur without negligence

Where all these three conditions are met, it is then open to the defendant to give a reasonable
explanation to show that the cause of the accident was due to some other cause or causes not
occasioned by the defendants so as to prevent the inference of negligence being made against the
defendant. The reason is that where the explanation raises doubt about the defendants’
negligence, the facts may speak less loudly and less convincingly than before and may exonerate
the defendant from the charge of negligence.

In Hasnem Enterprises Ltd v Electricity Corporation of Ghana,46 the plaintiff contracted with the
defendant-corporation for the supply of electricity to their office for a fee. On 21 March 1981,
the managing director of the plaintiff-company went to his office, and when he switched on the
light there was an explosion from the bulbs from which smoke emitted. This resulted in power
failure in the said office and damage to certain electrical appliances. A report was subsequently
made to the defendant-corporation who sent their workmen to ascertain what has happened. The
workmen found the fault to be a cut in the branch underground cable supplying electricity to the
plaintiff’s office. The main underground cable on the street was, however, intact. The plaintiffs
sued the defendant for negligence and relied on the maxim res ipsa loquitur.

The Supreme Court speaking through Bamford-Addo, JSC said thus:

The doctrine of res ipsa loquitur arises where the cause of an accident is not known or cannot be
proved directly by evidence from which the inference of negligence can be made. Where the
doctrine applies, it is not necessary for the plaintiffs to give direct evidence of negligence. They
may prove their case partly by indirect or circumstantial evidence; in which case the plaintiffs
must prove facts from which an inference of negligence on the part of the defendants, and the
defendants only, may be reasonably inferred. The inference of negligence, however, may be made
where the accident is consistent with negligence on the part of the defendants than with any other
cause since the accident is then said to speak for itself. In such a case, the court may find
negligence against the defendants where the facts are consistent with such findings unless the

45
[1974] 1 GLR 429
46
[1998-99] SCGLR 288

18 | P a g e
 defendants give a reasonable explanation to show how the accident occurred without negligence
on their part, because such a finding is not automatic.47 [Emphasis added]

If these requirements are fulfilled, there is prima facie evidence of a breach of duty. The burden
of proof is then shifted to the defendant, who must prove that he did show reasonable care.

a. Defendant is liable if he is in control

A defendant will not be liable if he was not in control. Thus in Scott v London & St. Catherine
Docks Co.,48 a customs officer was injured when six sacks of sugar fell on him as he was passing
through the defendant’s warehouse. The court held that the res ispa loquitur rule applied and
inferred negligence on the part of the defendant which it was unable to disprove. In the course of
his judgment, Erle, CJ stated:

But where the thing is shown to be under the management of the defendant, or his servants, and
the accident is such as, in the ordinary course of things, does not happen if those who have the
management use proper care, it affords reasonable evidence, in the absence of explanation by the
defendant, that the accident arose from want of care.

Similarly, in Gee v Metropolitan Railway,49 the plaintiff leaned slightly against the door of an
underground train not long after it had left a station. The door flew open, causing the plaintiff to
fall out, and it was held that there was evidence of negligence against the railway company.

In contrast, in Easson v LNE Railway,50 where a small child fell off a train several miles after it
had left the station. It was considered that the door of the train was not sufficiently under the
control of the railway company after the train started moving and could have been opened by
somebody for whom the company was not responsible.

b. The accident must be such as would not in the ordinary course of things have
happened without negligence.
In this situation, the common experience is that a barrel will not fall from an upstairs window
onto a passerby in the street if those in charge take proper care, or that two railway trains
belonging to the same company will not collide without negligence on the part of the company or
its servants. On the other hand, the mere fact that a fire spread from an ordinary domestic grate is
not sufficient for “everyone knows that fires occur through accidents which happen without
negligence on anybody’s part”. In Cassidy v Ministry of Health,51 the plaintiff was injured in a
surgical operation on his hand. Denning, LJ asserted that the res ipsa loquiur rule enabled the
plaintiff to say, in effect: “… I went into hospital to be cured of two stiff fingers. I have come out
with four stiff fingers, and my hand is useless. That should not have happened if due care had
been used. Explain it, if you can”. The defendant was held liable as he was unable to explain
how such a result was consistent with the use of reasonable care.

c. Absence of explanation
47
Ibid 294
48
34 L.J.Ex 220
49
(1873) L.R. 8 Q.B. 161
50
[1944] 2 KB 421
51
[1951] 2 K.B. 343

19 | P a g e
Where it is possible to explain how the accident occurred, the doctrine cannot apply, the question
ceases to be one where the facts speak for themselves, and the case would then have to be proved
directly by the plaintiffs to establish facts from which negligence can be reasonably infrered.
Hence in Ward v Tesco Stores Ltd,52 the plaintiff was injured when she slipped on a pool of
yoghurt which had previously been spilled onto the floor of the defendant’s supermarket and had
not been cleaned up. The court applied the res ipsa loquitur maxim and the defendant was held
liable as it was unable to show that it had taken reasonable care.

In Klutse and another v Nelson,53 the plaintiff was injured as a result of a collision between a
bus on which she was travelling and a tipper truck driven by the first defendant. The plaintiff
claimed the accident was caused by excessive speed, failing to apply his brakes in sufficient time
to avoid hitting the bus etc. The trial judge rejected the defendant’s explanation of how the
accident occurred and, without expressly accepting the plaintiff’s account of how it occurred,
gave judgment for her, applying the doctrine of res ipsa loquitur. On appeal, the Supreme Court
held that the maxim res ipsa loquitur applies only when the causes of an accident are unknown.
In this case, since the plaintiff professed to know the cause of the accident, the trial judge was
wrong to resort to that maxim to throw the burden of disproof of negligence on the defendant.

Similarly, in Asantekramo, alias Kuma v The Attorney – General, 54 the plaintiff, a healthy
housewife of 19 years of age was referred to the Komfo Anokye Government Hospital, Kumasi
by a private medical practitioner after he had diagnosed a case of ruptured ectopic pregnancy.
The doctor in charge of the government hospital examined the plaintiff and decided that she
needed an urgent operation. In the course of the operation her right arm became swollen and
gangrenous, following blood transfusion administered to her by the nursing staff, through a vein
in the right arm. The arm was later amputated to save her life. The plaintiff therefore sued the
state represented by the Attorney – General claiming damages for negligence. It was held that in
actions, such as the instant case, founded on res ipsa loquitur, it was unnecessary to plead res
ipsa loquitur. Facts should rather be pleaded which, taken together, would prove that the injury
suffered by the plaintiff, could not have happened but for the presumptive negligence of the
defendant.

RESULTANT DAMAGE

The third requirement for a negligence action is commonly expressed by saying that the plaintiff
must have suffered damage as a result of the defendant’s breach. Even if the plaintiff proves
every other element in tortuous liability, he will lose his action if the harm which he has suffered
is too remote a consequence of the other person’s conduct, or, as is what is somewhat loosely
said, if the damage is too remote.

Theoretically, the consequences of any conduct may be endless but a defendant is not liable for
all the consequences that flow from his tortuous act, however remote in time and however
indirect the process of causation, for otherwise human activity would be unreasonably hampered.
The law thus places a limit in liability. Thus when the cause of some damage has been
52
[1976] 1 All ER 219, CA
53
[1965] GLR 537, CA
54
[1975] 1 GLR 319

20 | P a g e
established and the basic elements to the tort have been proved, the defendant may be able to
escape payment of some or all of the damages claimed by showing that there is not sufficiently
close connection between his behavior and the damage suffered by the plaintiff, i.e. that the loss
is too remote. In reality the issue of remoteness of damage involves two separate issues:

i. The issue of causation

ii. The remoteness of damage.

i. The issue of causation

The causation issue is concerned with the question of cause and effect: Was the defendant’s
breach of duty the operative cause of the plaintiff’s loss? The plaintiff’s claim will fail if he is
unable to prove this link. He must show that but for the negligence of the defendant, his loss
would not have occurred. Thus in Barnett v Chelsea and Kensington Hospital Management
Committee,55 the plaintiff’s husband was a night watchman, who called at the defendant’s
hospital in the early hours of the morning complaining of vomiting. He was sent home without
being examined and was told to contact his own doctor later that day. He was suffering from
arsenic poisoning and died a few hours later. The court held that the defendants were in breach of
their duty of care, but the claim failed because the negligence of the hospital had not caused the
death. The court accepted on the evidence that even if he had been examined immediately, the
plaintiff’s husband would have still died from arsenic poisoning. In his judgment, Nield J stated
the position of the law when he said:

My conclusions are that the plaintiff … has failed to establish, on the balance of probabilities that the
death of the deceased, William Patrick Barnett, resulted from the negligence of the defendants … my
view being that had all care been taken, still the deceased must have died. 56

ii. Remoteness of damage

Where the plaintiff proves that his injuries were caused by the defendant’s breach of duty, he can
recover damages provided that his injuries were not too remote a consequence of the breach. The
law does not necessarily impose liability for all of the consequences of a negligent act. Some
damage may be too remote. Only damage which was reasonably foreseeable at the time of the
negligent act can be recovered by the plaintiff.

Thus in Overseas Tankship (UK) v Morts Dock and Engineering Co. Ltd. (The Wagon Mound), 57
a large quantity of fuel oil was carelessly spilled by the defendant’s employees while a ship was
taking on fuel in Sydney harbour. Some of the oil spread to the plaintiff’s wharf where welding
operations were taking place. The plaintiff stopped welding temporarily, but recommenced after
receiving expert opinion that fuel oil would not ignite when spread on water. Two days later the
oil ignited when a drop of molten metal fell into a piece of waste floating in the oil, causing
extensive damage to the plaintiff’s wharf. The court found as a fact that it was not reasonably
foreseeable that the oil would ignite in these circumstances. It was held that the damage to the
wharf was too remote, and the plaintiff’s claim failed.

55
[1969] 1 QB 428
56
Ibid 433-434
57
[1961] AC 388

21 | P a g e
The test of reasonable foresight arising out of The Wagon Mound clearly takes into account such
things as scientific knowledge, at the time of the negligent act. The question to be asked in
determining the extent of liability is damage of such a kind as the reasonable [person] should
have foreseen? This does not mean that the defendant the defendant should have foreseen
precisely the sequence or nature of the events. This is illustrated in Hughes v Lord Advocate,58
where employees of the Post Office, who were working down a manhole, left it without a cover
but with a tent over it and lamps around it. A child picked up a lamp and went into the tent. He
tripped over the lamp, knocking it into the hole. An explosion occurred and a child was burned.
The risk of the child being burned by the lamp was foreseeable. However, the vaporization of the
paraffin in the lamp and its ignition were not foreseeable. It was held that the defendants were
liable for the injury to the plaintiff. It was foreseeable that the child might be burned and it was
immaterial that neither the existing of his injury nor the precise chain of events leading to it was
foreseeable.

The test for remoteness

The plaintiff’s damage may be held to be too remote where an unforeseen new independent act,
outside the defendant’s control, intervenes to break the chain of causation. If the plaintiff’s
damage is caused by such novus actus interveniens the defendant will not be liable for it. For
example, an employer’s liability for injury suffered by an employee at work will not extend to
further injuries received in the course of negligent medical treatment in a hospital. Thus in Cobb
v Great Western Railway, 59 the defendant allowed a railway carriage to become overcrowded.
As a result the plaintiff’s pocket was picked and he lost nearly £100. It was held the act of the
thief was anovus actus interveniens and consequently, the plaintiff’s loss was too remote.

In Brandon v Osborne while the plaintiff’s husband and wife were in a shop as customers a
skylight in the roof of the shop was broken, owing to the negligence of contractors engaged in
repairing the roof, and a portion of the glass fell and struck the husband causing severe shock.
His wife who was standing close to him at the time was not touched by the falling glass, but
reasonably believing her husband to be in danger she instinctively clutched his arms and tried to
pull him from the spot. She strained her leg in the process in such a way as to bring about a
recurrence of thrombosis. She sued to recover damages from the contractors. It was held that
both the husband and wife were entitled to damages. The court observed that the wife was
entitled to damages because what she did was, in the circumstances a natural and proper thing to
do.

DEFENCES TO NEGLIGENCE ACTION

There are only two defences to a negligence action;

i. contributory negligence; and

ii. volenti non fit injuria.

58
[1963] AC 837, HL
59
[1894] AC 419

22 | P a g e
 1. Contributory Negligence

Where the plaintiff has successfully established all the elements of a negligence action, but has in
some way contributed to his own injuries by his own negligence, the defendant may raise the
defence of contributory negligence. Contributory negligence is conduct by the plaintiff showing
an unreasonable disregard for the safety of his own interest, which disregard together with the
defendant’s negligence causes harm to that interest. Until 1945 in England and in 1963 in Ghana,
contributory negligence was a complete defence to an action in negligence. 60 In Ghana, the law
on contributory negligence is to be found in the Civil Liability Act, 1963 (Act 176) which
provides:

Where a person suffers as the result partly of the fault of any other person and partly of the fault
of that person or the fault of someone for whom that person is responsible, a claim in respect of
that damage shall not be defeated by reason of the fault of that person suffering damage, but the
damages recoverable shall be reduced to the extent that the Court thinks just and equitable having
regard to the plaintiff’s share in the responsibility for the damage. 61

The effect of this provision is simply that the plaintiff’s damage will be reduced in direct
proportion to the extent to which he is to blame for his injuries. In other words, a plaintiff is said
to contribute to his injury or to be guilty of contributory negligence, if he fails to take reasonable
care for his own safety in relation to the conduct for which he seeks to blame the defendant.

1. Duty of care
We have noted that the existence of a duty of care is essential to a cause of action in negligence.
For contributory negligence, however, it is not necessary that one person must owe a duty of
care. All that is required is that the plaintiff himself failed to take reasonable care for his own
safety.

2. Risk
The defendant must show that the harm sustained by the plaintiff belongs to the general class of
perils to which the plaintiff was exposed by his own negligent conduct. Where the damage
sustained by the plaintiff is foreign to the risk to which his own negligent conduct had subjected
him, the defence of contributory negligence would have to fail. In Jones v Livox Quarries Ltd,62
the plaintiff who was a workman at the defendant’s quarry jumped on to a traxcavator vehicle
and then stood on the towbar at the back of its holding. Plaintiff’s action was in defiance of the
instructions and orders given to workmen. While holding the traxcavator a dumper, vehicle
driven by a servant of the defendant’s with a load of stone, followed the trxcavator and crashed
into the back of the trxcavator injuring the plaintiff severely in the process. The court held that
by sitting at the back of the towbar, the plaintiff had exposed himself to risk of injury.

The court observed that although contributory negligence does not depend on a duty of care, it
does depend on foreseeability. Just as actionable negligence requires foreseeability of harm to
others so contributory negligence requires the foreseeability of harm to oneself. Denning, LJ
stated:
60
See Law Reform (Contributory Negligence) Act, 1945 and the Civil Liability Act, 1963 (Act 176) respectively.
61
Civil Liability Act, 1963 (Act 176), s 1(1)
62
[1952] 2 QB 608

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 A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he
did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must
take into account the possibility of others being careless.63

3. Was the plaintiff’s negligence a contributory factor?

In Davies v Swan Motor Co (Swansea) Ltd,64 the plaintiff was riding on the back of a dust lorry
contrary to his employer’s instructions and was injured when the dust lorry was in collision with
a bus. The court held that the plaintiff’s damages be reduced by 20% since he was contributorily
negligent.

4. Apportionment of damages
The result of a successful plea of contributory negligence is that there will be an apportionment
(reduction) of damages. The plaintiff’s damages will be reduced to the extent of their
contributory negligence. The damages recoverable by the plaintiff are to be reduced ‘to such
extent as the court thinks just and equitable having regard to the claimant’s share in the
responsibility for the damage’. This is usually expressed in percentage terms.

A person can be guilty of contributory negligence if his conduct, while in no way contributing to
the accident itself, contributed to the nature and extent of his injuries. In O’Connell v Jackson,65
D, a car driver knocked P off his moped, the accident being entirely D’s fault. P suffered severe
head injuries, which the evidence showed would have been less serious if he had been wearing a
crash helmet. It was held that the plaintiff’s damages would be reduced by 15%.

The court does not approach the problem by saying ‘what injuries would he have suffered if he
had been wearing a crash helmet- we shall compensate him for such injuries’. The court says-
‘Given that he has suffered injuries X, Y and Z, what was his percentage of fault either in
causing the accident or contributing to such injuries-his damage shall be reduced by this
percentage’

In Stapley v Gypsum Mines,66 the plaintiffs were miners who, contrary to specific instructions by
their employer, worked under dangerous roof. They were injured when the roof collapsed and
fell in on them. Their damages were reduced by 80% for contributory negligence.

Similarly, in Froom v Butcher,67 it was held that the failure to wear a seatbelt was contributory
negligence and that the appropriate reduction in damages was 25% if the seatbelt would have
prevented the injury altogether or 15% if it would merely have reduced the extent of the injury.

63
Ibid 616; contrast with Singleton, LJ who took the view that there would be no defence where C negligently sat
upon an unsafe wall, and a driver negligently ran into the wall and injured C.
64
[1949] 2 KB 291
65
[1972] 1 QB 270, CA
66
[1953] AC 663
67
[1976] QB 286, CA

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Again in Sayers v Harlow UDC,68 the plaintiff became locked inside a public lavatory because of
the defendant’s negligence in failing to maintain the door lock. After failing to attract attention or
assistance, she attempted to climb out over the top of the door. In doing so she fell and was
injured. It was held that the defendant was liable in negligence, but the plaintiff’s damages were
reduced by 25% for contributory negligence.

The test for contributory negligence

The standard of care expected of the plaintiff is in general the same as that in negligence itself. A
person is therefore guilty of contributory negligence if he ought reasonably to have foreseen that,
if he did not act as a reasonable, prudent man, he might be hurting himself, and he must take into
account the possibility of others being careless. In Ekem v Wiseway Cleaners Ltd., Wiseway
Cleaners used electrically powered machine in their laundry. When power was switched on, it
revolved at high velocity and it was stopped by stepping on a foot brake. Ekem, an employee of
the company sustained fatal injuries whist operating the machine and died. The administrator of
his estate instituted an action against the company. The company pleaded that the deceased
sustained the injuries by using unorthodox and unauthorized means to stop the machine.
Examination by an independent factory inspector revealed that the machine was defective. The
court held that the test for contributory negligence was whether in every case the plaintiff acted
reasonably in taking a risk. In the instant case, there had been no instructions on the use of the
faulty machine because the company had even denied knowledge of its defect. It was therefore
simply a case of a workman working with what was available and doing the best in the
circumstances. Consequently, no fault could be laid at the door of the deceased for he could not
be said to have contributed to the accident in the legal sense. (The deceased used the standard of
care expected of him in this situation).

VOLENTI NON FIT INJURIA

This defence is sometimes also referred to as voluntary assumption of risk. There are many
occasions in which harm may be inflicted on a person for which he has no remedy in tort because
he consented, or at least assented the doing of the act, which caused his harm. The general rule is
that a person has no remedy for harm done to him if he has expressly or impliedly consented to
suffer the actual harm inflicted, or if he has consented to run the risk of it. Volenti non fit injuria
simply means that “no wrong is done to the person who consents”.

The meaning of consent

Mere knowledge does not necessarily imply consent. The plaintiff must both appreciate the
nature of the risk of injury and consent to run the risk. Consent need not be expressly given. It is
sufficient that the plaintiff voluntarily agrees to the risk of injury. A consent given under protest
is no consent, as where an employee has the choice between incurring a risk, and giving up a job
which is not normally dangerous. Simple examples are the injuries received in the course of a
lawful game or sport. By agreeing to play in a football game a player is deemed to consent to
injuries that may arise out of the game. A boxer who loses a tooth in a boxing match cannot sue
the opposing boxer.
68
[1958] 2 All ER 342

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In Gyasi v State Gold Mining Corp.,69 the plaintiff brought an action for damages against the
defendants jointly and severally for injuries sustained by him as result of a motor accident. The
first defendants contended that the plaintiff was not entitled to his claim because the plaintiff had
control of the defendant’s vehicle on the day of the accident but had allowed, permitted or
acquiesced in the manner the first defendants’ driver had driven the vehicle on that day, thereby
calling in aid the defence of volenti non fit injuria. The court held that “to succeed on the
defence of volenti non fit injuria, the defendants must prove the fact that the plaintiff voluntarily
and freely with full knowledge of the nature of the risk, impliedly agreed to incur it. Here there
was no evidence whatsoever to support the contention that the plaintiff having full knowledge of
the nature and extent of the risk involved consented to it”

69
[1980] GLR 52

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