Falana and Tort of Negligence

Femi Falana SAN

Few weeks ago, Femi Falana, SAN, foremost human rights activist and legal practitioner extraordinaire who has substantially devoted his time, talent, training and treasure to fight the cause of the downtrodden, broke his knee in a manhole in front of his Abuja office. Since the incident, he has hobbled with his knee in a Plaster of Paris (POP) and a walking stick. Narrating his ordeal, Falana recounts that the manhole which appeared as part of the normal road caved in as he stepped on it.

Expressing surprise that a road could be constructed with such a manhole not properly secured, or a notice given, Falana decided to approach the court to ventilate his grievance and seek redress. As he pointed out, the primary motive for instituting an action and seeking remedy against the road builder and the road owner is to compel them to realise that they owe a duty of care against road users. He believes that any person affected by a negligent conduct of a public authority, owe a social duty, to hold the authority accountable, which in turn compels efficiency.

Without prejudice to the particularity of Falana’s claim and the defence available to the defendants, I will in this piece examine the basic provisions of Law of Tort on Negligence.  As posited by learned author, Professor Ese Malami: “the purpose of the tort of negligence is to identify breach of a duty of care, and offer remedy to a person who has suffered harm. In other words, the purpose of the law of negligence is to offer remedy to a person who has suffered harm, because of a breach of a duty of care.”

From the definition, the purpose of the tort of negligence is to hold accountable any person who has the responsibility to exercise the duty of care in his conduct. Where for instance, a person acts negligently or carelessly, and a person suffers damages as a result of such a negligent conduct, the tort of negligence provides legal opportunity for the claimant to seek damages. Of note, it is not all negligent acts that give right to damages. For the negligent act to be actionable, the defendant must owe the claimant a duty of care.

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Defining negligence, Akpata JSC, in Odinaka vs Moghalu, (1992) 4 NWLR part 233, page 1, stated: “Negligence is the omission … to do something which a reasonable man under similar circumstances would do or, the doing of something which a reasonable and prudent man would not do.” In Heaven vs Pender (1883) 11 QBD 503 at 507 CA, Brett MR, held: “Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff, without contributory negligence on his part, has suffered injury to his person or property.”

It will be jurisprudentially significant, if the courts begin to award damages for the varied and rampant grievous neglect of duty of care by public authorities. Travelling on federal, state and local highways, drivers and passengers are confronted with unannounced craters on the highways which have caused the loss of several lives and properties. Until President Olusegun Obasanjo brought them down, most of those death traps were tolled.

Interestingly, the Minister for Works, Power and Housing, Babatunde Fashola SAN, has announced that the toll gates are coming back after the roads are repaired. While many Nigerians may have reservations about the return of toll gates which were sited discriminately, those who ply the affected roads will feel more offended if bad roads are also tolled. But it will open a new chapter, if persons who suffer damages as a result of the bad roads could maintain an action against the road builders and the road owners.

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But of course, the tort of negligence is not a floodgate for every loss. To successfully maintain an action, there are basic principles which must apply before a claimant could succeed. Again, Professor Malami, in his book: Law of Tort lists the conditions thus: that the defendant owed a duty of care to the claimant, that the defendant breached the duty of care and that the defendant suffered damage as a result of the breach.

As Lord Esher MR, stated in Le Lievre vs Gould (1893) 1 QB 491 AT 497: “a man is entitled to be as negligent as he pleases towards the whole world, if he owes no duty to them.” Many Nigerians will anxiously await the pronouncement of the court, whether the builder and owner of a highway owe a duty of care to a road user, on reasonable warranty of the safety of the road? When road signs are placed on the highways warning users approaching a bend, a bridge, a hill or sharp descent, are those acts exercise of duty of care?

The duty of care was defined by Lord Atkin, in his famous dictum in Donoghue vs Stevenson (1932) AC 562 HL, where he said: “The rule that you are to love your neighbour became in law, you must not 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 acts 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 to questions.”

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In practice, it appears the duty of care in tort of negligence is defined more widely by courts when it has to do with private persons unlike public authorities. Perhaps that explains the higher level of negligence by public authorities. But with the conduct of public institutions causing citizens grievous damages, the time appears ripe for holding them more accountable for negligent conducts. One area the law should be vigorously explored is the criminal negligence of public utility companies like electricity providers.

It is heart-rending when an electricity surge for instance, causes heavy damage to factory machines or even home appliances. It should be unacceptable that after paying for electricity, one has no idea when the services paid for would be available, such that perishable items stored in the freezer goes to waste. It will be interesting if customers of electricity distribution companies can successfully maintain an action in Tort, against the service provider, apart from rights arising from breach of contract.

If Femi Falana SAN can successfully maintain an action for the negligent conduct of the road builder and road owner for the harm caused him, the case will be precedence for Nigerians suffering in silence from the negligent acts of state actors. To succeed however, the limitation imposed by the doctrine of public policy which Lord Denning referred to in Dorset Yacht Co. Ltd vs Home Office (1969) 2 QB 412 at 426 must be expounded in his favour.

source: The Nation


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