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AUTHOR

INSTITUTION OF AFFILATION

COURSE TITLE

COURSE CODE

PROFESSOR

DATE
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Introduction

Negligence is a tort in which a one person suffers harm or injury as a result of another’s
reckless acts or omissions. For one to prove negligence, he/she has to establish that the
tortfeassor owed him/her a duty of care, there has been breach of the established duty of care,
there is an element of causation, and that the acts/omissions of the tortfeassor have resulted in
loss/injury to the tortfeassee. Actions of accidents and injuries mostly require proof of
negligence in order to succeed.

Overall, a person is to be held liable for the tort of negligence if his/her acts/ omissions cause
harm/injury to another person to who is so closely related to them to an extent that they ought
to have foreseen that their acts or omissions could have caused such injury and therefore they
should take necessary steps to mitigate the damage failure to which, they are to be held liable
for breach of the duty of care.

Duty of care

In the case of Donoghue v. Stevenson (1932) All ER Rep 1, Lord Atkin defined a duty of
care as the obligation to take all reasonable precautions to avoid acts or omissions that are
likely to cause harm to one’s neighbour. He went on to define a ‘neighbour’ as someone that
is so immediately and narrowly impacted by one’s acts or omissions that one should fairly
consider him/her. The duty of care will be imposed only if the defendant, as a reasonable man
could have foreseen that his/her actions or omissions will lead to injury to the plaintiff.

In the case of Anns v. Merton London Borough Council (1978) AC 728, the plaintiff lived in
flats which had structural flaws. The foundation of the flats was 2ft6 in deep contrary to the
required 3ft6 depth. The defendant was a council charged with the role of inspecting
foundations of flats during construction. There was no damage, but the property continued to
depreciate because it was on a faulty foundation. The plaintiff sued. The House of Lords held
that: the defendant had the obligation of making sure that the foundations were properly
buried. Lord Wilberforce accepted the plaintiff’s case and awarded damages. He then
proceeded to establish a two-stage test for determining whether a duty of care exists or not.
The first question is whether there is a sufficient relationship between the defendant and the
plaintiff also termed as the principle of proximity. Are they closely related that the defendant
can contemplate reasonably in his mind that his action/ inaction is likely to cause injury to the
plaintiff. If the answer is affirmative, and the defendant is found to have done nothing to
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mitigate the loss suffered by the plaintiff, then the defendant is to be held liable. Secondly,
where the requirement of the first question is met, it is important to establish the
consequences of breaching such duty of care.

The defendant in this case, contracted an electrician to set up a light for the purpose of it
being triggered by passing cars on the road. The electrician did not set up the light as required
of if since it was fitted in a manner that it glared towards the road. The owners had the
intention, in my opinion of keeping up with their security detail thus setting up the light for
notification of any passing car. They hence owed a duty of care to the motorists who,
according to Lord Atkins’ definition, qualified to be their ‘neighbours’. The motorists were
bound to be affected by the negligent installation of the light. The owners ought to have
reasonably foreseen that the glare from the light could cause injury to the motorists who
would be blinded temporarily by such glaring.

Breach of duty of care

The defendant will be held liable for breach of the duty of care owed to him/her if he/she
does not take necessary precaution to ensure that his/her acts or omissions do not cause
harm/injury to the plaintiff.

In the case of Home Office v. Dorset Yatch Co. Ltd (1970) AC 1004, a juvenile institution
was not properly secured. Seven of the offenders escaped to the plaintiff’s yard where they
were having a party. While partying, the boat collided with the Yatch owned by the claimant.
The claimant sued. It was held that the Home Office had the powers to control the offenders
who, if not left unsupervised, would not have caused damage to the claimant’s boat. The
Home Office should have foreseen that harm could result if they failed to secure the school.
Thus they had breached the duty of care owed to the claimant and were liable to pay damages
for destruction of the yatch.

The house owners would have foreseen that the glare caused by the negligent installation of
the light would overwhelm some of the motorists. If the light had been angled downwards
instead of outwards into the road, there would have been no glare. The adjustment of the light
fitting would only take five minutes. Failure by the owners to employ someone to adjust the
light the fitting resulted in breach of duty of care owed to the Fatima.
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Causation

Causation establishes the reason or cause of harm, injury or loss suffered by the claimant.
Circumstantial causation and causation by law are the two types of causation. Circumstantial
causation is established by demonstrating that the injury occurred as a result of the
defendant’s failure while causation by law is the ‘but for test’ which shows that with or
without the negligence, the injury or harm would have been suffered still.

In this case, the factual causation is established whereby it was found that it was as a result of
being temporarily blinded by the floodlight, that Fatima slammed her car into a bollard,
severely damaging it as well as her costly golf clubs in the trunk. If the light had been angled
downwards instead of outwards into the road, there would have been no glare.

Causation by law is established whereby Fatima carried on reversing the car regardless of
being dazzled by the glare from the light which was contrary to the Institute of Lighting
Engineers Guidance Notes. Had Fatima not reversed the car immediately after the dazzling
by the light, the damage might not have been suffered.

In the case of McGhee v. National Coal Board (1973) 1 WLR 1, the plaintiff worked at the
brick works owned by the defendant. He was assigned work at the brick kiln, a hot and dusty
environment. The company had no sanitation facilities that could enable the workers bathe or
wash their hands after work thus they had to wait till they got home to wash off the brick
dust. The claimant contracted dermatitis. The skin condition could be attributed to either the
brick dust he was exposed to at work which would not amount to breach of duty of care or
the fact that there were no sanitation facilities at the work place which would amount to
breach of duty of care. The House of Lords held that the claimant only needed to prove that
the lack of sanitation facilities at the work place which were a breach of duty of care by the
defendant, played a significant part in him contracting dermatitis.

In this case, for a claim of negligence against the house owner to pass, Fatima needs to prove
that the glare from the lights increased the risk of her being involved in the accident which
resulted in the damage of her car and her expensive golf clubs.

Remoteness of damage

The requirement that the damage be of foreseeable type or be a direct consequence of the
defendant’s act or omission is referred to as the “remoteness of damage”. After establishing
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that there existed a duty of care and that the defendant has breached such duty of care, the
plaintiff has to show that the injury/ damage suffered was not insignificant.

In the past, the defendant was held accountable for any damage caused by his/her negligence
regardless of whether the damage was too remote or not. Currently, the courts use the degree
of damage suffered as a sieving mechanism in establishing tortious liability to ensure that the
defendant is not taken accountable for all losses caused by his/her breach of duty to the
plaintiff. The plaintiff must prove that the damages suffered are not too remote and that they
could have been foreseen by any reasonable man.

In The Wagon Mound (1961) 1 AC 388, a furnace oil leak from the defendant’s vessel caused
a great fire at the Wharf harbour destroying a few boats at the harbour. The cause of the fire
was a clash of the cotton debris with furnace oil and sparks from welding works. It was held
that: if the consequences of damage can be foreseen by a reasonable man, the damage is not
too remote thus the defendant is to be held fully liable for loss suffered, no matter whether the
extent of damage was foreseeable.

The house owner in this case ought to have foreseen that the light had been fitted in a manner
causing a glare towards the road. Fatima was dazzled by the glaring of the bulb and thus
slammed the car into a bollard damaging it and the costly golf clubs in the trunk. The damage
in this case is not too remote since it could have been foreseen by a sensible person.

A sensible person is one who conducts himself with rational thinking and is sane. In this
case, once it is established that the house owner is a sensible person according to the
prevailing definition, then he/she shall be held fully liable for the loss by Fatima

Defences

The house owner can plead the defence of Volenti non Fit Injuria which simply means,
‘voluntary assumption of risk’ on the part of Fatima. This legal principle establishes that
anyone who knowingly and willingly subscribes to a dangerous situation cannot later on
bring an action for damages. The defendant has to prove that the claimant freely consented to
the action, the claimant knew the risk and that he/she agreed to suffer harm. Once these
elements have been proved to court, the plaintiff is not to be compensated for any loss
suffered as a result of the torts committed by the defendant.

In the case of Khimji v. Tanga Mombasa Transport Co. Ltd (1962), the personal
representatives of one of the passengers that succumbed to drowning while aboard in one of
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the defendant’s buses brought an action against the defendant. The bus driver on reaching a
flooded part of the road was reluctant to carry on with the journey. This is because it was
risky to cross that road. The deceased and some other passengers prevailed on the driver to
continue with the journey regardless of the risk that was accompanied with crossing the road
at that point. After a lot of pressure from the passengers, the driver gave in and carried on
with the journey. The bus drowned and all those aboard it including the deceased died. The
claimant’s lawsuit against the defendant was dismissed. This is because the deceased was
aware of the prevailing danger and willingly accepted it, and this the defence of volenti non
fit injuria was properly applied.

Whereby Fatima decided to carry on with reversing her car even after being temporarily
blinded by the glare from the light which is against the Institute of Lighting Engineers
Guidance Notes, she had knew the risk of doing so and freely consented to suffer the harm of
reversing the car despite of the effect the glaring light had on her. This qualifies as volenti
non fit injuria and thus her claim against the house owner cannot succeed.

Conclusion

Fatima’s claim against the owners of the light cannot succeed. For a claim of negligence to
succeed, one needs to prove all the elements of negligence as discussed above. Fatima was
able to meet all the elements of negligence. However, the fact that she decided to carry on
with reversing the car even after being rendered temporarily blind by the floodlight against
the Institute of Lighting Engineers Guidance Notes, amounted to volenti non fit injuria a
defence which if accepted in court, leads to the plaintiff’s claim not succeeding.
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REFERENCES

Anns v. Merton London Borough Council (1978) AC 728

Home Office v. Dorset Yatch Co. Ltd (1970) AC 1004

McGhee v. National Coal Board (1973) 1 WLR 1

The Wagon Mound (1961) 1 AC 388

Khimji v. Tanga Mombasa Transport Co. Ltd (1962)