Negligence

• Pages: 453-497

Action in negligence Paras.1101-1104

NEGLIGENCE

(1) ACTION IN NEGLIGENCE

1101. Burden of proof in an action for negligence.

“In an action for negligence as in every other action, the burden of proof falls upon

the plaintiff alleging it. It is proved on a preponderance of probabilities. There is

evidence of negligence if the facts proved and the inferences to be drawn from them

are more consistent with negligence on the part of the defendant than with other

causes. Ellor v. Selfridge & Co. Ltd. (1930) 41 T.L.R. 236. If the plaintiff’s evi-

dence is equally consistent with negligence on the part of the defendant as with other

causes, there is no evidence of negligence.” - Per Edozie, J.C.A. in N.B.C. Plc. v.

Borgundu Suit No. CA/J/35/94; (1999) 2 N.W.L.R. (Pt. 591) 408 at 427.

1102. Burden on person alleging negligence.

“A provisional or evidential burden is cast on them to give a satisfactory explanation

to rebut the inference of negligence. Their explanation that the vehicles was serviced

2 days before the accident was considered and rejected by the Court below.” - Per

Edozie, J.C.A. in N.B.C. Plc v. Borgundu Suit No. CA/I/35/94; (1999) 2 N.W.L.R.

(Pt. 591) 408 at 428.

1103. Establishing negligence against a party.

“It is pertinent at this stage of the judgment to state the ingredients that have to be

proved to establish negligence. They are: - (1) That there was a duty on the part of

the defendant towards him. (2) That the defendant breached the said duty, and (3)

That the suffered claim is in consequence of the defendant’s breach of the duty.” -

Per Mukhtar, J.C.A. in Habib (Nig.) Bank Ltd. v. Koya Suit No. CA/J/60/92; (1992)

7 N.W.L.R. (Pt. 256) 43 at 60.

1104. Need to show causal link between cause of action and act of negli-

gence.

“The only issue arising therefore for considering is whether on the facts the appellant

had proved that it was the respondent who was responsible for the accident? In other

words, could it be said that the failure of the respondent to put up the warning sign

that there was diversion of the road from the opposite caused the accident? The

crucial factor to be proved is what caused the accident. The appellant did not lead

any evidence as to how the accident occurred.

He merely gave evidence, that the respondents have failed to put up a notice

warning him that vehicle coming from the opposite direction have been diverted to his

side of the dual carriage way. This in my view is not sufficient to ground an action in

453

Paras. 1104-1107 Vol. 16: NEGLIGENCE 454

nuisance or negligence. There must be a factor connecting the accident with the

failure to provide the notice. From the evidence, it cannot be said that “but for” the

failure to put up the notice, the accident could not have occurred. I agree with the

learned trial Judge that the appellant has failed on the facts to prove that it was the

fault of the respondent that caused the accident.” - Per Musdapher, J.C.A. in B. J.

Ngilari v. Mothercat Ltd. Suit No. CA/J/136/90; (1993) 8 N.W.L.R. (Pt. 311) 370 at

380 - 381.

1105. Principle upon which measure of damages is founded in an action for

negligence.

“The law or the measure of damages in action for negligence is settled, it is founded

on the principle of restitution in intergrum that is the restoration of the claimant (if

he succeeds) to his original position if and so far as the original position can be

restored plus loss of use or earnings during the period or repairs or replacement,

where applicable. See L.C.C.C. & Anor. v. Unachukwu & Anor. (1978) 3 S.C.

199; Seismograph Services v. Mark (1993) 7 N.W.L.R. (Pt. 304) 203.” - Per

Musdapher, J.C.A. in Moghalu v. Ude Suit No. CA/A/59/97; (2001) 1 N. W.L.R.

(Pt. 693) 1 at 14.

(2) CAUSATION

1106. Evolution of “causation” in determining negligence.

“Initially when liability was strict, the guiding principle was whether the defendant’s

conduct caused the accident. With time, the determining factor was whether the

defendant’s fault caused the accident. In a further effort to determine negligence, the

Courts draw a dichotomy between the causa causans, that is the effective factor

and the causa sine, qua non, that is the factor without which the damage could not

have occurred. See Oliver, J., in Holling v Yorkshire Traction Co. Ltd. (1948) 2 All

E.R. 662 at 664.” - Per Tobi, J.C.A. in A.N.T.S. v. Atoloye Suit No. CA/L/169/89;

(1993) 6 N.W.L.R. (Pt. 298) 233 at 247.

1107. Relevance of “causation” in determining negligence.

(1) “If in the process of the application of common sense and a value judgment, the

Court identifies the negligent party, the issue of apportionment abates. This is be-

cause the Court can only apportion causative responsibility if it cannot locate which

of two or more factors caused the accident. Where the Court identifies the negligent

party, it will quietly leave the fault where it rightly belongs and give judgment accord-

ingly.” - Per Tobi, J.C.A. in A.N.T.S. v. Atoloye Suit No. CA/L/169/89; (1993) 6

N.W.L.R. (Pt. 298) 233 at 247.

(2) “In arriving at the decision, the Court must determine the primary or effective

cause of the accident. In other words, the Court will ask the question: “whose negli-

gence substantially caused the accident. Causation, as a fault finding or fault placing

mechanism, whether in criminal law or in the law of tort, has an element of fluidity in

455 Causation Paras. 1107-1110

its practical application to any given situation as it lacks specific fixation. It does not

therefore serve any useful purpose to seek a precise test. The more acceptable

criterion is to identify first, the fact or factors but for which the damage complained

of should have not occurred and then “to select what appears to be the most respon-

sible cause”. By and large, the selection process is not a matter of law but one of

common sense borne out from the rich experiences of human interaction in society,

tailored to the facts and circumstances of the case with a view to arriving at what is

essentially a value, judgment.” - Per Tobi, J.C.A. in A.N.T.S. v. Atoloye (1993) 6

N.W.L.R. (Pt. 298) 233 at 247.

(3) CLAIM FOR TOTAL LOSS OF PROPERTY

1108. Awards of damages on claim for total loss.

“He was awarded damages on the basis that the chattels were irreparably damaged.

The exhibits as far as the respondents were concerned were scraps. If the exhibits

were sold by the appellant the price would have been deducted from their estimated

value at the date of the damage-See: Ubani Ukoma v. C.E. Nicol (1962) 1 All

N.L.R. 105; (1962) 1 S.C.N.L.R. 176. Since they were not sold, I am of the view

that the appellant is not entitled to keep them.” - Per Ogwuegbu, J.C.A. in Soyinka

v. Inaolaji Builders Ltd. Suit No. CA/I/225/87; (1991) 3 N.W.L.R. (Pt. 177) 21 at

32.

1109. Proof of loss of earning.

“The plaintiff from the above has obviously not led any evidence in strict proof of his

loss earning which would readily lend0. itself to quantification or assessment because

of its inherent uncertainty: see West African Shipping Agency (Nig.) Ltd. v. Alla

(1978) 3 S.C. 21. Therefore even if the plaintiff had proved a case of negligence

against the defendants the learned trial Judge would have been wrong to award

damages for loss of earnings based on the evidence available. Worse still there was

no justification for making an arbitrary award of N100.00 a day. That was clear

indication that the learned Judge found it impossible to make an award upon the

evidence. In that situation the defendants had no duty to show that the project loss of

earning by the plaintiff were improbable and no need to challenge the evidence thus

led: see A.G. Oyo State v. Fairlakes Hotels (No. 2) (1989) 5 N.W.L.R. (Pt. 121)

255 at 284 per Nnamani, J.S.C.” - Per Uwaifo, J.C.A. in Seismograph Serv. v.

Mark Suit No. CA/E/49/89; (1993) 7 N.W.L.R. (Pt. 304) 203 at 216.

(4) CONTRIBUTORY NEGLIGENCE

1110. Burden of proving contributory negligence.

“The burden of proving contributory negligence in the plaintiff rests on the defendant.

But this may be inferred from the plaintiff’s own evidence, or on a balance of prob-

abilities from the facts.” - Per Mukhtar, J.C.A. in N.B.N. Ltd. v. T.A.S.A. Ltd. Suit

No. CA/I/133/3; (1996) 8 N.W.L.R. (Pt. 468) 511 at 528.