i) The defendant owes a duty of care to the plaintiff;
ii) The defendant made a breach of that duty; and
iii) The plaintiff suffered damage as a consequence
thereof.
i) THE DEFENDANT OWES A DUTY OF CARE TO THE PLAINTIFF
It means a legal duty rather than a mere moral,
religious or social duty. There is no general rule of law defining such duty.
It depends in each case whether a duty exists.
Donoghue v.
Stevenson – A purchased a
bottle of ginger beer from a retailer for the appellant. She consumed that and
seriously suffered in her health. She found some snail at the bottom of the
bottle. She sued for compensation. The defendant pleaded that he did not owe
any duty of care towards the plaintiff. The House of Lords held that the
manufacturer owed her a duty to take care that the bottle did not contain any noxious
matter, and that he would be liable on the breach of the duty.
Palsgraaf v.
Long Island Railroad Co. – The
plaintiff with a package was trying to board a moving train. Two servants of
the defendant came to help her. One of them pushed her from the back. At this
moment the package fell on the rail track. The package contained fireworks and
it exploded. The plaintiff was injured. She sued the defendants alleging
negligence on the part of their servants. It was held that she could not
recover. Cardozo CJ said, the conduct of the defendant’s servant was not wrong.
Relatively to her it was not negligence at all.
Duty depends
on reasonable foreseeability of injury
If at the time of omission, the defendant could
reasonably foresee injury to the plaintiff, he owes a duty to prevent that
injury and failure to do that makes him liable.
No liability
when injury is not foreseeable
Glasgow Corp.
v. Muir – The manageress
of the defendant Corporation tea-rooms permitted a picnic party. Two members of
the picnic party were carrying a urn of tea through a passage. There were some
children buying sweets and ice-cream. Suddenly, one of the persons lost his
grip and the children including Eleanor Muir were injured. It was held that the
manageress could not anticipate that such an event would happen as a
consequence of tea urn being carried through the passage, and, therefore, she
had no duty to take precautions against the occurrence of such an event.
Reasonable
foreseeability does not mean remote possibility
Bolton v. Stone
– A batsman hit
a ball and the ball went over a fence and injured a person on the adjoining
highway. This ground had been used for about 90 years and during the last 30
years, the ball had been hit in the highway on about six occasions but no one
had been injured. The Court of Appeal held that the defendants were liable for
negligence. But the House of Lords held that the defendants were not liable on
the basis of negligence.
Duty of care –
Booker v. Wenborn (1962) - The
defendant boarded a train which had just started moving but kept the door of
the carriage open. The door opened outside, and created a danger to those
standing on the platform. The plaintiff, a porter, who was standing on the edge
of the platform was hit by the door and injured. It was held that the defendant
was liable because a person boarding a moving train owed a duty of care to a
person standing near it on the platform.
ii) BREACH OF DUTY – Breach
of duty under Kenya law means non-observance of due care which is required in a particular
situation. The law requires taking of two points into consideration to
determine the standard of care required: (a) the importance of the object to be
attained, (b) the magnitude of the risk, and (c) the amount of consideration
for which services, etc. are offered.communication, acceptance and revocation of proposals
violable
contracts and void agreements
performance
of contracts
(a) The
importance of the object to be attained –
K. Nagireddi v. Government of Andhra Pradesh – Due to construction of a canal by the state
government, all the trees of the plaintiff’s orchard died. The plaintiff
alleged that the government due to negligence did not cement the floor. It was
held that the construction of canal was of great importance and to not
cementing the floor was not negligence from the state government.
(b) The
magnitude of risk –
Kerala
State Electricity Board v. Suresh Kumar – A minor boy came in contact with overhead electric
wire which had sagged to 3 feet above the ground, got electrocuted thereby and
received burn injuries. The Electricity Board had a duty to keep the overhead
wire 15 feet above the ground. The Board was held liable for the breach of its
statutory duty.
(c) The
amount of consideration for which services, etc. are offered –
Klaus
Mittelbachert v. East India Hotels Ltd. – the question of liability of a five star hotel arose
to a visitor, who got seriously injured when he took a dive in the swimming
pool. It was observed that there is no difference between a five star hotel
owner and insurer so far as the safety of the guests is concerned. It was also
observed, a five star hotel charging high from its guests owes a high degree of
care as regards quality and safety of its structure and services it offers and
makes available.
iii)
THE PLAINTIFF SUFFERED DAMAGE – It is also necessary that the defendant’s breach of duty must cause
damage to the plaintiff. The plaintiff has also to show that the damage thus
caused is not too remote a consequence of the defendant’s negligence.
Res
ipsa loquitur- It
means ‘the things itself speaks’. When the accident explains only one thing and
that is that the accident could not ordinarily occur unless the defendant had
been negligent, the law raises a presumption of negligence on the part of the
defendant.
Hambrook
v. Stokes Bors. – Soon after parted with her children in a narrow street, a lady saw a
lorry violently running down the narrow street. When told by some bystander
that a child answering the description of one of her children had been injured,
she suffered a nervous shock which resulted in her death. The defendant was
held liable.
Dickson
v. Reuter –
CONTRIBUTORY NEGLIGENCE
When the plaintiff by his own want of care contributes
to the damage caused by the negligence or wrongful conduct of the defendant, he
is under Kenya law considered to be guilty of contributory negligence. This is a defence in
which the defendant has to prove that the plaintiff failed to take reasonable
care of his own safety and that was a contributing factor to harm.
Rural
Transport Service v. Bezlum Bibi (1980) – The conductor of an overcrowded bus invited
passengers to travel on the roof of the bus. The driver ignored the fact that
there were passengers on the roof and tried to overtake a cart. As a result, a
passenger was hit by a branch of tree, fell down, received injury and died. It
was held that both the driver and the conductor were negligent towards the
passengers, there was also contributory negligence on the part of the
passengers including the deceased, who took the risk of travelling on the roof
of the bus.
Yoginder
Paul Chowdhury v. Durgadas (1972) – The Delhi High Court has held that a pedestrian who
tries to cross a road all of a sudden and is hit by a moving vehicle, is guilty
of contributory negligence.
Doctrine
of alternative danger –
There may be certain circumstances when the plaintiff
is justified in taking some risk where some dangerous situation has been
created by the defendant. The plaintiff might become nervous by a dangerous
situation created by the defendant and to save his person or property, he may
take an alternative risk. If in doing so, the plaintiff suffered any damage, he
will be entitled to recover from the defendant.
Jones
v. Boyce (1816) – The plaintiff was a passenger of defendant’s coach. The coach was driven
so negligently that the plaintiff jumped off the bus fearing an accident and
broke his leg. It was held that the plaintiff would be entitled to recover.
Shayam Sunder v. State of Rajasthan (1974) – Due to the negligence on the part of the defendants,
a truck belonging to them caught fire. One of the occupants, Navneetlal, jumped
out to save himself from the fire, be struck against a stone lying by the
roadside and died. The defendants were held liable.