NEGLIGENCE

It is the breach of a legal duty of care which results in damage by the Defendant on the Plaintiff.
The Kenyan tort of negligence is based in English common law.
Therefore, the history of the development of the tort in England is directly relevant to the
Kenyan situation.
Until 1932, common law did not recognise negligence as a separate & distinct tort, the position
of the law was that no liability could arise against a party unless there was a contractual relation
subsisting with respect to the transaction in question.
Where, for instance the plaintiff purchased an item for his/her consumption then they suffered
injury as a result of defect in the item, the position was that the plaintiff could not recover against
the Defendant who manufactured the item unless there was a contractual relationship
However, the case of Donoghue v Stevenson changed this general principle. The facts of this
case were that the plaintiff was treated to a bottle of ginger beer at a cafe by a friend. The beer
was in an opaque bottle which meant that the plaintiff could not see the contents.
The plaintiff consumed a glass of the beer but as she was pouring the rest of the content into a
glass there came out of the bottle the decomposing remains of a snail.
The Plaintiff claimed that she suffered severe nervous shock and severe gastroenteritis (intestinal
inflations); after consumption of the ginger beer.
The plaintiff sued the manufacturer.
The defendant argued that there was no cause of action because there was no privity of contract
between him (manufacturer) and the plaintiff.
Lord Atkin characterised the issue as follows; whether the manufacturer of an article or drink
sold by a distributor in circumstances that prevent the distributor from discovering any effect by
inspection is under any legal duty to the ultimate purchaser or consumer to take reasonable care
that the article is free from defects likely to cause injury to health"
The difficulty that the plaintiff faced was that there was no privity between her and the
manufacturer, let alone the retailer of the beer. She could therefore not sue the retailer.
Even if she could sue the retailer, she would face a difficult burden in the sense that she could
not prove fault on the side of the retailer; yet it was very clear that the plaintiff had indeed
suffered injury as a result of consuming a defective product.
It would be unfair if the defendant who had manufactured the item with the intention that it
would be consumed by a person such as the plaintiff would not be made to shoulder liability
when the plaintiff consumed the item as was intended and thereby suffered injuries.
The court had to device a mechanism that could allow to the manufacturer to be held liable under
the circumstances.
The court laid down a general principle of duty of care which would be used to determine
liability against the defendant who did or omitted to do some of the acts with consequences to
third parties when it was reasonable to expect that those acts or omissions would negatively
affect the third party.

Lord Atkin stated "there must be some general conception of relations giving rise to a duty of
care. The rule that you are to love your neighbour becomes in law that you must not injure your
neighbour and the legal question as to who my neighbour is receives a restricted reply. You must
take reasonable care to avoid acts or omissions which you reasonably foresee would be likely to
injure your neighbour. Who then is my neighbour in law? The answer seems to be persons who
are so closely and directly affected by my actions that I ought to have them in contemplation as
being so affected when I am directing my mind to the acts or omissions being called to
question." This is the neighbour principle.
One should take care to avoid acts or omissions that he reasonably foresees would cause injury to
their neighbour.

On this basis then it was held that the Defendant owed a duty of care to the Plaintiff to ensure
that the contents of the ginger beers did not have any harmful effects to the consumers. The case
of Donoghue v Stevenson is credited as the source of tort of negligence.
Negligence would therefore depend upon proof that the defendant has breached a duty of care
owed to the plaintiff hence causing them injury.

Whether or not there is a duty of care depends on whether that other person is a neighbour in
law.

Elements
 i. Duty of care
ii. Breach of that duty of care.
iii. Injury or damage to the plaintiff (causation)

Duty of care
The Defendant would only be liable in negligence if he/she is under a legal duty to take care.
The test is one of foreseeability and the question would then be whether the injury to the plaintiff
would have been foreseen by the Defendant.
a) Foreseeability
This test requires a determination of whether or not the plaintiff is a neighbour in law as set out
in the Donoghue case.
It therefore does not matter that the Plaintiff is close to the Defendant physically. The issue is
whether the injury to the plaintiff could have been foreseen by the Defendant.
If the defendant had no reason to expect that the plaintiff would be affected by his act or
omission, then a duty of care would not exist.

Palsgraf v Long Island Railroad 248 NY 339

The Defendant’s servant negligently pushed another person who was attempting to board a
moving train. That person dropped a packet containing explosives which resulted to an explosion
over some scales which were several feet from the plaintiff causing injury to her.
In a claim for negligence by the plaintiff it was held that there was no duty of care in respect to
the plaintiff because there was nothing in the appearance of the package to suggest even in the
eye of the vigilant that it contained explosives that would explode and cause injury.

Cardozo CJ stated that "If no hazard was apparent to the eye of ordinary vigilant, an act
innocent and harmless, at least on the face of it, with reference to her, did not take to itself
the quality of a tort because it happened to be a wrong”

“The orbit of the danger disclosed to the eye of reasonable vigilant would be the orbit of the
duty."
The rule of foreseeability does not necessary require that the plaintiff be identifiable. The
plaintiff need only to fall within a class of persons to whom injury can be foreseen.

Haley v London Electricity Board (1965) AC 778

The defendant dug a trench in the street. The pit contained warning learning signs indicating the
risk of injury to passers-by. However, these precautions were sufficient for persons with normal
sight only. Evidence lead to show that the street in question was also used by a significant
number of blind persons. The plaintiff who was blind fell into one of the trenches. It was held
that the defendant ought to have foreseen that blind persons would be exposed to injury and
therefore they had a duty of care and it was required of them to take precautions to avoid such
injuries.

Miriti v Firoze Construction Ltd (1982) KLR 275

The defendant while constructing a road dug trenches near the plaintiff’s house. The trenches
were left uncovered. The plaintiff’s child aged five and a half fell into one of the trenches and
drowned. It was held that it was foreseeable that children of tender age would be attracted to
such trenches and therefore the defendant should have taken the necessary precautions.

Bencivenga v Amimo [1986] KLR 269

The high court imposed a duty of care on a motorist who when emerging from the driveway of
his residence into a public road collided with a motorcycle carrying the plaintiff. It was shown
that the driveway was surrounded with a tall hedge which obstructed the view of the road.
The defendant was aware of this fact because he had lived in the house for a while. He was also
aware that there was traffic on the road. It was held that there was a legal duty of care expected
of the defendant to take care that he did not emerge into the road in a manner that would cause
injury to other road users e.g. by stopping to confirm that there was no traffic.

b) Negligent misstatements
The legal duty of care exists not only with respect to the act or omissions of the defendant but
also with respect to statements that the defendant may make which result in loss or injury by the
plaintiff.

Hedley Byrne & Co. Ltd v Heller & Partners Ltd (1964) AC 465
The plaintiff were the advertising agents of a company known as Easi power Ltd. They had
doubt over the company’s credit worthiness. They asked their bankers to obtain from Easi power
Ltd bankers a statement on Easi power financial position. The defendants who were Easi power's
bankers replied that the company was able to fulfil all its commitments.
The Defendants replied in a letter headed "for your private use and without responsibility on the
part of this bank officials."
They also stated that Easi power Ltd was a respectable company considered good for its
economic or business engagements.
As a result of these statements and in reliance thereon the Plaintiff refrained from cancelling
advertising contract with Easi power Ltd.
Easi power then went into liquidation and the plaintiff suffered over 17,000 sterling pounds
worth of losses.
It was held that the Defendant had a legal duty to take care to ensure that the information that
would get to the plaintiff was accurate and would not lead to loss if relied upon by the Plaintiff.
However, because the Defendant had absolved himself from the liability, the Plaintiff could not
succeed.

c) Pure economic loss

Where the injury to the plaintiff is pure economic loss, it is not foreseeable therefore no duty of
care exists. A pure economic loss is the profit or benefit that the plaintiff might have gained if
the defendant had not been negligent.
Spartan Steel Alloys v Martin & Co. (Contractors) Ltd (1973) 2 QB 27
The defendant negligently caused damage to a cable that supplied electricity to the plaintiff’s
factory and as a result some metal which had been melted solidified and the plaintiff was not
able to perform further melting operations.
It was held that whereas a duty of care would be imposed in respect to the solidified metal there
was no duty of care with respect to the melting operations that were not done because this
consisted a pure economic loss which in law is not foreseeable.
Candler v Crane, Christmas & Company (1951) 2 KB 164

The plaintiff, a fish monger conceived of a project to supply lobsters at times of high demands by
keeping them in tanks. He purchased the tanks from industrial Tank specialties but the pumps
failed to function.
As a result, a large number of the lobsters died and he was unable to proceed with his project.
It was held that there was a legal duty of care in regard to the death of the lobsters but he could
not recover the profit he would have made from the business since this was a pure economic loss.

d) Causing emotional distress

Where the defendant by extreme or outrageous conducted negligently or recklessly causes severe
emotional distress to the plaintiff he/she will be liable for such emotional stress if it results in
bodily harm.

Wilkinson v Downtown (1897) 2QB 57

The defendant by a way of a practical joke told the plaintiff that her husband had been seriously
injured in an accident. The plaintiff suffered shock to the nervous system which produced severe
and permanent physical consequences.
It was held that a legal duty of care was to be imposed on a person who makes a statement to
another negligently or recklessly and which results in severe emotional distress.
In this case the plaintiff’s injury was a direct and foreseeable consequence of the defendant’s
conduct.
If the injury does not result from conduct that is directed specifically to the Plaintiff, then there is
no duty of care.

Bourhill v Young (1943) AC 92

The plaintiff had just alighted from a car when she heard a sound of a collision between a
motorcycle and a car. The motorcyclist had been travelling at an excessive speed and was unable
to avoid the car when it crossed his path and sustained serious injuries leading to his death.
The accident had occurred about fifty feet away from the plaintiff.
The plaintiff was not herself put at the risk of injury. She only saw blood on the road after the
motorcyclist’s body had been removed.
She alleged that the sight of the blood threw her into a state of terror as a result of which she
sustained a very severe shock to her nervous system.
At the time of accident, she had been eight months pregnant 5 weeks later she gave birth to a still
born (stable) baby.
She sued the motorcyclist’s estate.
It was held that even though the motorcyclist was negligent with respect to the car which he
collided with, he owed no legal duty to the plaintiff because she was not in his line of vision.
Further, she did not perceive the collision and she was not herself put in reasonable apprehension
of immediate bodily injury.
e) Limiting Duty of Care based on Public Policy Consideration
Courts would be reluctant to impose a duty of care where it appears to be against public policy to
do so.
Hill v Chief constable of Yorkshire Industries (1989) AC 53
The plaintiff’s 20-year-old daughter was attacked at night in a city street and died from her
injuries. The defendant was a chief constable of the area in which the street was located. The
attacker was convicted of the murder of the daughter and had allegedly committed a number of
offences of murder against young women in the same area over a period of years prior to the
deceased’s murder. The plaintiff claimed damages against the defendant for negligence on
grounds that having investigated the previous cases of murder in the area, the police had failed to
apprehend the attacker and prevent the murder of her daughter. The Queen’s Bench struck out
the writ and statement of claim as disclosing no cause of action. The Court of Appeal dismissed
the plaintiff’s appeal.

It was held that it would be against public policy to impulse such a duty because even though it
might result into certain benefits to the public, it would lead to the police conducting their
investigation in a defensive way to the courts being asked to adjudicate over a matter of police
policy and to the diversion of money to defend such actions.

BREACH OF DUTY OF CARE

Not only must the Defendant owe a duty to the Plaintiff there must also be evidence that the
Defendant was in breach of that duty owed to the Plaintiff.
a) The Test
The test of breach is the reasonable man test. The question that the court will ask is whether the
Defendant deviated from the conduct reasonably expected of them in the circumstances. If the
Defendant did what a reasonable man would have done under these circumstances, then there is
no breach of duty of care.

Roe v Minister of Health (1945) 2 Q3 66

Doctor Malcolm Graham an anaesthetist administered vaccination to a spinal anaesthetic in
preparation for a minor surgery. The anaesthetic was contained in a glass ampoule which was
immersed in a solution to reduce the risk of infection – this was the common practice at the time.
Some of the phenol leaked into the anaesthetic and contaminated it.
The patient became paralysed from the waist downwards.
Doctor Graham was aware that injecting phenol in a human being would produce such
consequences. He had therefore subjected the glass capsule to a physical examination before
administering it to the patient.
He injected the Plaintiff with the anaesthetic when he was sure that there was no leakage.
At the time of the incident, it had not been discovered that it was possible for phenol to leak
through a glass of ampoules.
Had it been known; a more vigorous test would be performed by Doctor Graham to ensure that
there was no contamination.
It was held that under the circumstance, the Doctor had acted reasonably as expected of him to
ensure that there was no risk to the patient. The Doctor was not in breach of the duty of care
owed to the patient.
What about where the defendant holds himself to be in possession of a skill that he does not
have?
Wells v Cooper (1958) 2 Q3 265
It was held that if the Defendant holds himself to possess certain skills when in fact he does not,
for the purposes of establishing breach of a duty he will be measured on the standard of
reasonably qualified member of the field in question. The degree and skill required will not be
measured by the Defendant’s own degree of personal competence.
In this case the Defendant had fixed a door handle and the plaintiff was injured when the handle
came off as she pulled the door forcefully in order to shut it and fell.
However, the defendant was not liable since he had acted in accordance with the level of skill
expected of a reasonably skilled amateur carpenter under the same circumstances.

Where a person participates in or engages in a transaction which he offers himself out as a

professional, the degree of skill and care, would be in reference to the competence
associated with the proper discharge of the duties of that profession.

The lady Gwendolen (1965) p 294

The directors of a brewing company argued that they were not liable for negligence arising from
the conduct of a captain they had employed to operate their ship.
They suggested that their competence was in the business of brewing and not shipping.
It was held that since they had become the owners of ship, they must be measured at the standard
of reasonable ship owners.

b) Factors Relevant in Establishing Breach

I) Magnitude of the risk
II) Importance of the objective to be attained.
II) Practicability of precaution.

I) Magnitude of the risk

Comprises the following elements:
- Likelihood of injury
- Seriousness of the injury.

With respect to the likelihood of injury, the rule is that the greater the likelihood of injury,
the greater the amount of caution that would be required.

Bolton v Stone (1951) AC 850

The Plaintiff was standing outside her house in Cheetham Hill Road next to a cricket ground.
When she was struck by a ball which had been hit out of the ground.
Such an event was foreseeable except that it had happened only 6 times in 30 years. The
Defendant had erected a seventeen-foot fence as a precaution. The likelihood of a ball being
struck out of the ground was rare therefore the Defendant was not required to do any more than
he had already done.

Hilder v Associated Portland Cement Manufacturing Co. (1961) 3 ALL ER 709

The Plaintiff’s husband was riding a motorcycle along a road next to an open land occupied by
the Defendant where children were permitted to play football. A ball was kicked onto the road
causing him to have an accident. It was held that the conditions were such that a likelihood of
injury to passers-by was high therefore the Defendant should have taken additional precautions.

Seriousness of injury
The more serious an injury is likely to be, the greater the precaution that will be required.

Paris v Stepney Borough Council [1951) AC 367

The Plaintiff was employed in the Defendant’s maintenance garage. He had been blinded in one
eye during the war but had successfully managed to conceal this from the Defendant until he was
examined by a doctor for the purpose of the council’s superannuation scheme. When it became
known to his employers that he was blind in one eye, he was given a two weeks’ notice of
dismissal.
Two days before he was due to leave, while attempting to remove a bolt from the vehicle, a piece
of metal flew off and entered his good eye and he became totally blind.
The Defendant had not provided him with any goggles as was the practise in that industry. He
claimed damages for negligence on the basis that he, as an individual with extra susceptibility to
serious injury, should have been provided with goggles.

It was held that in respect to the Plaintiff that the Defendant should have taken greater
precautions because an injury to him was likely to result into total blindness as opposed to an
injury to a person with two eyes working under the same circumstances.
The House of Lords stated that the duty to take reasonable steps by an employer for preventing
injury of employees is owed to each employee individually.

If an employer is aware of a condition which makes that employee more susceptible to injury, or
makes the consequences of injury more severe than usual, he must take extra precautions. In this
case, the provision of goggles to Mr Paris would have been reasonable even if no goggles were
provided to other workers doing the same kind of job.

ii) Importance of the Objective to be Attained

In establishing a claim, the court will weigh the risk against the objective sought to be attained.
As a general rule, where the objective involves a public interest matter or the saving of life or
limit the court will be more likely to relate the risk that is taken as opposed to a situation where
the risk is taken in furtherance of a commercial objective.
Daborn v Bath Tramways motors co. Ltd (1946) 2 All ER 333
During World War II, the plaintiff was injured in a collision with the defendant's ambulance. The
ambulance was a left-hand drive vehicle which was not fitted with signals. The accident
happened when the defendant turned after attempting to signal with her hand.
Did the defendant's purpose lower the standard of care required?
The Court of Appeal found that converting the left-hand drive vehicles would have been
prohibitively difficult and expensive. By providing an ambulance service during wartime, the
defendant was acting in public interest and this value to society meant that there was a lower
standard of care required.
Asquith LJ:.. if all the trains in this country were restricted to a speed of five miles an hour, there
would be fewer accidents, but our national life would be intolerably slowed down. The purpose
to be served if sufficiently important, justifies the assumption of abnormal risk....

Watt v Herfordshin County Council (1954) I WLR 835

The plaintiff, a fire fighter, was injured by heavy lifting equipment required to assist at a tragic
road accident, which had slipped off the back of a vehicle. The fire officer, employed by the
defendant, had ordered the use of an ordinary lorry to carry the equipment as the usual vehicle
was engaged in other work at the time.
Had the defendant breached their duty of care by allowing an ordinary lorry to carry the
equipment?
The court found that the benefit of saving the woman trapped in the accident was greater than the
risk of injuring the fire fighters by using an unsuitable lorry to carry the equipment. Therefore,
the defendant had reached the standard of care required.
Lord denning stated “It is well settled that in measuring care one must balance risk against the
measures necessary to eliminate the risk. In addition, one must balance the risk against the end to
be achieved. If this accident had occurred in a commercial enterprise without any emergency the
plaintiff would succeed. However, the commercial end to make fit is very different from the
human end to save life or limb. The saving of life or limits justifies the taking of considerable
risk”

iii) Practicability of precautions

The courts will consider the cost and practicality of measures the defendant could have adopted
in order to prevent the injury or damage. The defendant is likely to have acted unreasonably if
the risk would have been substantially reduced at a low cost and the defendant failed to take the
necessary precautions. However, if the precaution would only produce a very limited reduction
in the risk and cost, then a defendant is more likely to have acted reasonably. Essentially, the
greater the risk of injury, the greater the requirement to take precautions. A lack of resources is
not usually accepted as a defence for failing to exercise reasonable care.

Latimer v AEC Ltd (1953) AC 643

The Defendant’s factory floor was flooded after an exceptionally heavy storm to.
To reduce the slipperiness of the floor, the Defendant spread sawdust over it.
The sawdust was however not enough and certain portions of the floor were left uncovered. The
Defendant had used warning signs and informed staff of the danger.
The Plaintiff was injured when he slipped and fell on uncovered portion of the floor.
In a claim for negligence the Plaintiff argued that because the Defendant could not eliminate the
risk of injury totally then the Defendant should have closed down the entire factory.
It was held that such a requirement would be too burdensome for the Defendant considering that
the Defendant had done all they could to reduce the risk of injury. Closing the factory was not
practical.

c) Proof of Breach of Duty

Under Section 107(1) of the Evidence Act Cap 80, whoever desires any court to give judgement
as to any legal right or liability dependent upon the existence of facts must prove that those facts
exist.
Section 107 (2), when a person is bound to prove the presence of any fact it is said that the
burden of proof lies on the person.
Where the Plaintiff states that the Defendant is negligent then the burden of proof lies on the
Plaintiff to give the evidence on those facts that would lead the court to conclude that as a matter
of law the Defendant was indeed negligent.
The standard of proof that the evidence must attain is on a balance of probabilities.
Balance of Probabilities / of Evidence
This means that the Plaintiff’s evidence must be in such as it is enough to tip the scales slightly
over onto his side.
If the evidence is evenly balanced with that of the Defendant and such that it is possible to
conclude that the injury would have occurred without the Defendant’s negligence, then, the
Defendant does not discharge the burden and the suit will be dismissed.
Ashford v Mersey Regional Health Authority (1983) 2 A11 ER
The Plaintiff suffered a partial paralysis in her face when in the course of carrying out a surgery
on her left ear, the surgeon cut a facial nerve. Expert evidence showed that this was a risk that
was inherent in such operations whether they were performed with greatest expertise /skills or
not. Therefore the Plaintiff did not discharge the burden and the suit was dismissed.

i) Res Ipsa Loquitor

Generally, the law requires that the Plaintiff gives direct evidence of the Defendant’s negligence.
However, in certain instances the Plaintiff may be unable to do so because he/she did not
perceive of the Defendants’ acts or omissions that led to his/her injury.
In such a case then it is likely to be unfair to demand of the plaintiff direct evidence of the
Defendant’s negligence because the Plaintiff simply did not see what the Defendant did. For
example, the Plaintiff might have been asleep or unconscious at the time of the accident or the
negligent act or omission or the negligent act may be as a result of complex or technical matters
beyond the Plaintiff’s understanding.
For this rule, the court devised the Res Ipsa Loquitor which was set out in the case of:
Scott v London & St. Katherine Docks Co. (1865) 3 H&C 596
The Claimant was a dockworker who was injured when large, heavy bags of sugar fell from the
Defendant’s crane and hit him. The Claimant sued the Defendant in the tort of negligence.
Issue:
Establishing negligence entails establishment of the fact that the Defendant breached their duty
of care to the Claimant. In this case, the claimant could not prove what had happened to cause
the sugar bags to fall, making it difficult to prove that the defendant had breached their duty. The
issue was whether a claimant can establish negligence if they cannot prove what the Defendant
did to cause the harm.
Holding:
“In an action for personal injury caused by alleged negligence of the Defendant, the Plaintiff
must adduce reasonable evidence of negligence to warrant the judge in leaving the case to the
jury. Notwithstanding this, where the thing is shewn 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 had proper care, it affords reasonable evidence in the
absence of the explanation by the Defendant, that the accident arose from want of care.”

Conditions for Res Ipsa Loquitor

i)The cause of the accident should be something under the control of the Defendant or
his/her servants.

Turner v. Mansfield Corporation (1975) 119 Sol. Jo. 629

The Plaintiff was driving a dust-cart belonging to the Defendant. It flipped and he got injured. It
was held that he could not rely on Res Ipsa Loquitor because he was the one who was
controlling. It was him to explain the accident rather than the Defendant.

Gee v Metropolitan Railway

The Plaintiff stood against the door of a train a few minutes after it had left the station. The door
flew open and the fell out and he sustained injuries. It was held that Res Ipsa Loquitor was to
apply since the D was in control of the train.

ii) The accident would not occur if there was proper management. The mere fact of
happening of the accident should not justify a conclusion that the Defendant was negligent.
Byrne v Boadle (363) 2 4 & C 722

The Plaintiff was walking along a street when a barrel of flowers fell from the Defendant’s shop
through a window above the Plaintiff. The Defendant argued that even though the barrel fell
from his shop there was nothing to show negligence on the part of employees /himself. It was
held that common experience shows that a barrel of flour cannot fall from a window unless those
who oversaw it were negligent.

iii) Absence of explanation

Once the Plaintiff has proven the first two conditions; the Defendant assumes the burden of
having to give a reasonable explanation as to the cause of action. This explanation must be in
such a way that it does not show negligence on the part of the Defendant. If there is absence of
explanation to show that the Defendant was not negligent then the Defendant will be liable.

Barkney V South Transport Co. Ltd

Res ipsa loquitor did not apply but the Defendant was negligent based on the facts. The court
found that the defect of the tyre could have been discovered well in advance if the Defendant had
instituted a system that requires the drivers to report anything that would result in a tyre burst.

Mg Chun Pul V. Lee Chuen Tat

The first defendant was driving a bus owned by the second Defendant in the outer lane of a dual
contingency. The bus suddenly crossed over to the inner lane of the opposite carriage way
colliding with another bus killing one passenger and injuring others. The Plaintiff sought to rely
on Res Ipsa liquour arguing that the mere fact of the accident alone as sufficient for the entire
negligence by the second Defendant.

The Defendant however, called evidence which established there was a cover that cut across the
ken that the bus was using, and to avoid hitting the car the first defendant braked and swaged to
the right which caused the bus to slide across and over to the second lane.

It was held that R.I.L could not apply since a reasonable explanation had been given which
rebutted the presumption of the negligence on the Defendant.

Kago V. Njenga (1981) KLR 186

The Plaintiff was a passenger in a saloon car, which collided with the Defendant’s bus. The
Plaintiff sought to rely on RIL, the Defendant stated that it was the bus’s front tyre that suddenly
burst causing the driver to lose control and hence the collision.

The tyre was new; and had been bought from a reputable tyre manufacturing company known as
firestone. A government examiner testified and stated that indeed the tyre was in good condition
and there was also evidence given by the Defendant that they subjected the tyres to visual
inspection daily to ensure that there were no defects. It was held that RIL could not apply
because a reasonable explanation had been given which shows there was no negligence on the
Defendant’s part.

In Embu public Road services V. Jemima Riimu 1968 E228 as sited in Msuri Muhhidin V
Nazzo bin Seif [Taco] EA 201.
The husband of the respondent was killed after a bus overturned as a result of one of its main
springs breaking while travelling along a straight road. The respondent relied on R.I.L in her
argument. There was expert evidence that there was appreciable time between the breaking of
springs and the bus overturning and that it would have been possible for the Plaintiff to control it
despite the sudden breaking of the spring.
It was held that the defendant never displaced the prima facie presumption of negligence. On
appeal, which was dismissed, it was held that the driver was not faced with a condition he could
not have taken that preventive action that should be expected of a competent driver of a public
service vehicle.

INJURY/CAUSATION
Liability will only be imputed if there is a causal link between the Defendant’s negligent act and
the Plaintiff’s injury.
The determination of causation involves three different considerations.
i) Factual causation – entails the question whether as a matter of fact the
Defendant should be held liable for the injury suffered by the Plaintiff.
ii) Legal causation – involves the question whether the Defendant as a matter of
law should be liable to for the injury suffered by the Plaintiff.
iii) Remoteness of damage - entails the question whether the injury complained of
is one for which the Plaintiff ought in law to recover.

Factual Causation
Factual Causation is established by the But for test.
The Plaintiff must prove that he would not have suffered the damage or injury but for the
Defendant’s negligent act.
Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428
Three night watchmen one of whom was the Plaintiff’s husband went to the Defendant Hospital
early in the morning and complained of vomiting after having taken tea. The doctor on duty did
not attend to them but instead advised them to go see their own doctors later on. Later the same
day, the Plaintiff’s husband died. It was established that the three had deliberately been poisoned
when a chemical known as arsenic was added to their drink.
In an action against the Defendant it was established that, regardless of the measures that the
doctor would have taken, the Plaintiff’s husband would have died anyway; and therefore, the
but-for test was not justified and therefore the Defendant was not liable.

The burden is on the Plaintiff to prove that the Defendant’s negligence caused the harm.
This means that they must prove that without the negligence, the harm would not have
occurred. The wife does not do this here, as it is probable that the man would have died
even without the hospital's negligent refusal.

Cork v Kirby MacLean Ltd [1952] 2 All ER 402

It was held that if the damage would not have happened but for a particular fault then that fault
is the cause of damage. If it would have happened, fault or no fault, the fault is not the cause of
the damage.
In this case the Claimant was working in a factory and died when he had an epileptic seizure
while working on a platform with no railings over 20 feet above the ground. The employer was
not aware of his condition, nor of the fact that the Claimant’s doctor had told him not to work at
heights. The Claimant’s partner sued the defendant employers in the tort of negligence.
Issue:
Establishing negligence entails proving that the defendant owed the claimant a duty of care,
breached this duty of care, and that the breach caused the harm. It was evident in this case that a
duty was owed and had been breached because there was no railings. However, the Defendant
stated that the absence of railings did not cause the employees death, but rather the epilepsy did.
As the Defendant did not cause the epilepsy, Defendant argued it did not cause the death.
The question in this matter was how causation is established in the tort of negligence.
Holding:
The Court of Appeal held that the Defendant was liable.
The Court set out the test for establishing causation. If the harm would not have happened but for
the breach of duty, the breach has caused the harm in the sense required under the tort of
negligence. If the harm would have occurred anyway even if the defendant had not been in
breach, the breach is not a cause of the harm.
In this matter, had appropriate railings been installed, the claimant would not have not fallen off
the platform while having the epileptic seizure. The Defendant’s breach therefore resulted in the
accident. However, the Claimant’s damages were reduced to reflect his contributory negligence
in failing to inform his employers of his condition.

Legal Causation
If the factual causation is established, then the Plaintiff must also demonstrate that under the law
the Defendant should be held liable for the damage. If there is a direct causal link, then, legal
position is easily established.
However, when the Defendant’s act or omission is not the cause of injury but merely provides an
opportunity for another person or thing to inflict injury, then there arises the question of novus
actus interveniens i.e. the intervening effect of an event that is caused either by another third
party or another thing that is not attributed to Defendant.
Novus actus interveniens breaks the chain of causation between the Defendant’s negligence and
the Plaintiff’s injury and where that happens, then, the Defendant would not be held liable.
There are three types of novus actus interveniens.
i) Intervening natural event.
ii) Intervening act of a 3rd party
iii) Intervening act of the Plaintiff.

a) Intervening Natural Event/Act of God

Arises where an independently and naturally occurring event causes damage which would not
have occurred but for the Defendants’ breach.
Where the Defendant’s breach has neither increased the likelihood that the Plaintiff would suffer
damage nor rendered him more susceptible to damage, it will not be treated as the cause of the
damage and the natural event will be held to be an intervening natural event, therefore breaking
the chain of causation.
Carslogie Steamship Co Ltd v Royal Norwegian Government [1952] AC 292
The Plaintiff’s ship was damaged in a collision for which the Defendant’s ship was wholly
responsible; after temporary repairs, the Plaintiff’s ship set on a voyage to US across the Atlantic
Ocean. During the voyage, she suffered extensive damage because of heavy weather.
It was held that the Plaintiff could not recover damages for the loss caused by the heavy weather
because the severity of the weather was unforeseeable and therefore it was improper to hold that
the losses caused by the storm were attributable to the negligence of the Defendant.

Besson v Allibhoy [1906] KLR 322

The Plaintiff sued the Defendant for the loss of a cargo which went down with the dhow used to
transport it. The dhow belonged to the Defendant and there was a storm which caused it to
capsize. It was argued that it was negligent for the Defendant’s servant to attempt to sail at night
when it was clear that the storm was heavy. It was held that it was a common practice for a dhow
to sail at night and that the accident resulted from the storm but not the Defendant’s negligence.

b) Intervening Act of a Third Party

If the Defendant’s act has done no more than provide the occasion for an entirely independent act
by a third party and that act is the immediate cause of the Plaintiff’s damage, then the third
party’s act is a novus actus interveniens and Defendant will not be liable.

The Oropesa case [1943] P 321

“Two steam vessels collided. One’s master sent fifty members of his crew in boats to the other
ship and about an hour and a half after the collision decided himself to go to that ship and confer
with her master on measures to be taken. He transferred to another lifeboat, which he embarked
with sixteen men. The weather was rough and before the lifeboat could reach the other ship, it
capsized and sank with nine of the occupants drowning. The badly damaged vessel subsequently
sank and its owners sued the owners of the other ship. In addition, the parents of one of the
deceased sailors joined as plaintiffs. They recovered against the other shipowners. It was argued
that the drowning was not caused by the collision and therefore no liability should ensue.

Held: The plea failed: ‘If the master and the deceased in the present case had done something
which was outside the exigencies of the emergency, whether from miscalculation or from error,
the plaintiffs would be debarred from saying that a new cause had not intervened. The question is
not whether there was new negligence, but whether there was a new cause. I think that is what

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Lord Sumner emphasized in The Paludina. To break the chain of causation it must be shown that
there is something something unwarrantable, a new cause which disturbs the sequence of events,
something which can be described as either unreasonable or extraneous or extrinsic.’ They were
not prepared to say that in all the circumstances the fact that the deceased’s death was due to his
leaving the ship in the lifeboat and its unexpected capsizing prevented it from be a direct
consequence of the casualty.”

Baker v Willoughby (1969)

Mr Baker (the plaintiff) was knocked down by the defendant's car, leaving him with a stiff ankle
on his left leg and reduced mobility and income. After the accident but before the trial, Mr Baker
was shot by a robber in his injured leg and the leg had to be amputated.
The defendant argued that the injuries he had caused to Mr Baker were obviated by the later
accident. His argument was based on causation: the shooting was an intervening event, which
was not caused by his negligent driving and the amputation of the man's leg meant that the
defendant could not be held accountable for any loss, since the damage he had done previously
no longer existed.

Holding:
The House of Lords has unanimously rejected this argument. Lord Pearson held although this
argument seemed to make logical sense, it would produce a "manifest injustice" if it were
allowed to succeed. Lord Reid considered that the damage caused by the defendant, the plaintiff's
inability to run, his reduced working capacities etc. was not obviated by the shooter's act.
Furthermore, if the shooter (who could not be found), were to be held liable, he would only have
to pay the losses he caused Mr Baker by the shooting, not by the earlier car accident (because of
the rule that "the defendant must take the plaintiff as he finds him"). Consequently, Mr Baker
would remain undercompensated.

g) Intervening act of the Plaintiff

Where the Plaintiff engages in conduct which exacerbates harm arising out of the Defendant’s
conduct; the Plaintiff’s conduct becomes novus actus interveniens and the Plaintiff held to be
contributorily liable.
McKew v Holland & Hannen & Cubitts (Scotland) Ltd. [1969] 3 All ER 1621
The Plaintiff lost control of his left foot as a result of an accident for which the Defendant was
responsible. Before trial, the Plaintiff entered a flat using a steep staircase with no hand rails
between the walls.
As he left the flat, he suddenly lost control, fell down and was injured.
It was held that the Defendant was not liable for the subsequent injury because the chain of
causation had been broken by the conduct of the Plaintiff. The Plaintiff unnecessarily put himself
in a dangerous situation.

Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006

The Plaintiff suffered a neck injury as a result of the Defendant’s negligent conduct. She was
forced to have a neck collar; the result was that she could not wear her glasses as she would
normally have done. She fell downstairs because she could not see properly. It was held that the
Defendant was liable for this further injury because it was a direct consequence of the original
negligence.

3. Remoteness of damage
Where the consequences are considered to be too remote for the Defendant’s negligence, then it
would be unjust and against public policy to hold the Defendant liable /responsible for those
consequences.
Remoteness of damage therefore requires the Plaintiff to prove that the injury in question is one
for which the Defendant should be held liable.

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound No.1)
[1961] AC 388
The Defendant in this case carelessly discharged oil from their ship to a harbour. Six hours later,
the ship set sail and left the harbour. The oil was carried by wind and tide to the Plaintiff’s wharf
a distance away. The Plaintiff was doing some welding work on another ship at the wharf. The
Plaintiff stopped the welding operations because of the presence of the oil. They were later
advised that it was safe to proceed with the welding and did so.
Two days later, hot metal produced as a result of the welding operation fell at some cotton waste
floating in the oil beneath the wharf.
The metal set fire on the cotton waste which in turn set fire to the oil. There was a huge fire
which damaged the wharf as well as the ship that was being repaired.
The court held that Overseas Tankship (UK) Ltd could not be held liable to pay compensation
for the damage to the wharf. This case disapproved the direct consequence test in Re Polemis
and established the test of remoteness of damage. This asks whether the damage would be
reasonably foreseeable. In this case, the damage caused to the wharf by the fire and the furnace
oil being set alight could not be foreseen by a reasonable person.

As long as the injury to the Plaintiff is foreseeable, then the Defendant would be liable even
though he could not anticipate the precise set of circumstances that caused the harm.

Hughes v Lord Advocate [1963] UKHL 31

Employees of the post office opened a manhole in the street in the evening and left it covered by
a canvas shelter, unattended. They however placed paraffin having lamps around the manhole.
The boys aged 7 and 10 started playing with the equipment and one of the boys, who was the
Plaintiff took hold of one of the maps and was swinging it by the rope over the hole.
He stumbled and the lamp fell into the hole and there was an explosion and a fire and the
Plaintiff was seriously burnt.

The Defendant argued that they should not be found liable in respect to the fire injuries because
they were not foreseen. It was held that under the circumstances, injury by fire could be foreseen
because they had placed paraffin lamps around a hazard that they themselves had created.

Where it is unreasonable or undesirable to hold the Defendant liable due to a public policy,
the loss is said to be remoted and therefore improbable.
Pritchard v JH Cobden Ltd [1988] Fam 22
The claimant sustained brain damage in an accident caused by the defendant’s negligence, and
this consequentially led to the claimant’s personality change and the subsequent breakdown of
his marriage.
The claimant sought to recover damages for the financial loss incurred from the divorce.
The Court of Appeal held that even though it had been conceded that the divorce and the loss it
caused to the claimant were foreseeably caused by the claimant's injuries, damages for those
losses could nonetheless not be recovered.

DEFENCES TO NEGLIGENCE
Even though the Plaintiff may establish a breach against the Defendant, it is possible for the
Defendant to avoid paying any damages or to limit the amount of damages on the basis of the
defences that are available in law.
The Defendant may rely on certain defences to avoid paying any damages or limit the amount of
damages based on the following defences.
i) Volenti non fit iniuria (or Volenti non fit injuria)
ii) Contributory negligence
iii) Illegality (Ex turpi causa non oritur actio)
iv) Exclusion of liability

i) Volenti non fit injuria

Volenti non fit iniuria is also known as voluntary assumption of risk.
In cases where someone willingly places himself/herself in a position where harm or injury is
likely to come their way, being aware that some degree of harm might result, he or she may not
be able to bring a claim against the other party in tort.
This defence applies only to the risk which a reasonable person would consider them as having
assumed by their actions. For example, where a boxer gives consent to being hit, and to the harm
that might be expected from being hit in the course of boxing, he does not consent to his rival
striking him with an iron bar, or punching him outside the usual terms of boxing.
The acceptance of the risk must be free and voluntary.
Letang v Ottawa Electric Railway Co. [1926] AC 725
It was held that for the defence of volenti to apply it must be shown that the Plaintiff freely and
voluntarily in full knowledge of the nature and extent of risk to him consented to incur the risk.
The mere fact of knowledge of the risk is not enough it must be shown that the Plaintiff
consented to it.

Smith v Baker & Sons [1891] AC 325

The Claimant sued his employers for injuries sustained in the course of working under their
employment. He was employed to hold a drill in position whilst two other workers took it in
turns to hit the drill with a hammer. Next to where he was working another set of workers were
engaged in taking out stones and putting them into a steam crane which swung over the place
where the Claimant was working. The Claimant was injured when a stone fell out of the crane
and struck him on the head.
The Defendant raised the defence of volenti non fit injuria in that the Claimant knew it was a
dangerous practice and had complained that it was dangerous but nevertheless continued. At trial
the jury found in favour of the Claimant. The Defendant appealed and the Court of Appeal
allowed the appeal holding that the Claimant was precluded from recovering as he had willingly
accepted the risk. The Claimant appealed to the House of Lords.
The Claimant’s appeal was allowed by the House of Lords. The Claimant may have been aware
of the danger of the job, but had not consented to the lack of care. He was therefore entitled to
recover damages.

Where the Plaintiff actively encourages the Defendant to create a dangerous condition
volenti will apply.

Pitts v Hunt [1991] 1 QB 24

The Plaintiff was a pillion passenger of a motorcycle ridden by the Defendant. The Plaintiff
knew that the Defendant was uninsured and unlicensed. After 4hrs of drinking together, the
Plaintiff encouraged the Defendant to engage in reckless, and idiotic riding of the motorcycle. It
was held that the volenti would apply to defeat the Plaintiff’s claim.

Morris v Murray [1991] 2 QB 6

The Claimant and Defendant had been drinking all day. The Defendant, who had a pilot licence
and a light aircraft, suggested that they take the aircraft for a flight. The Claimant agreed and
drove them both to the airfield. They started the engine and the Defendant took off but crashed
shortly after. The Defendant was killed and the Claimant was seriously injured. An autopsy
revealed that the Defendant had consumed the equivalent of 17 Whiskeys. In an action for
negligence, the Defendant raised the defence of volenti non fit injuria.

Holding:
The defence was allowed. The actions of the Claimant in accepting a ride in an aircraft from an
obviously heavily intoxicated pilot was so glaringly dangerous that he could be taken to have
voluntarily accepted the risk of injury and waived the right to compensation.

ii)Contributory Negligence
Section 1 of Law Reform Act Cap 26 provides that where any person suffers injury as a result of
partly his own fault and partly the other parties’ fault, the claim of injury shall not be defeated by
reason of the fault of the persons suffering but damages recoverable shall be reduced to the
extent that the court thinks just and equitable having respect to occurrence of damage.
Therefore, contributory negligence affords only a partial defence. Where it is proven, the court
will apportion liability against the Plaintiff and the Defendant to the extent of each person’s
contribution to the injury in question. To succeed in defence the Defendant must plead and
prove that the Plaintiff’s injury resulted from the risk the Plaintiff exposed by himself by their
own negligence.
Secondly, that the Plaintiff contributed to their own injury. There was fault and negligence on the
side of Plaintiff.

Jones v Livox Quarries [1952] 2 QB 608

The plaintiff had ridden on the back of a kind of tractor in a quarry and in defiance of his
employer’s instructions, risking being thrown off and injured. Another vehicle ran into the back
of the first vehicle, injuring the plaintiff. He contended that his damages should not be reduced
because although it was foreseeable that he might be thrown off the first vehicle, it was not
foreseeable that he would be injured by another vehicle running into him.
Held: A party 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. The Plaintiff had
contributed to his injury therefore the damages were reduced by 20%.
Denning LJ: ‘Just as actionable negligence requires the foreseeability of harm to others, so
contributory negligence requires the foreseeability of harm to oneself. 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.’

Arkay Industries Limited v Abdalla Amani [1990] eKLR

The Plaintiff was employed in the Defendant factory which processed edible oil. The Plaintiff’s
duties included removing oil cake from the cleaner and putting it in tins. After removing the oil
cake, he was then supposed to pour more oil cake into the processing machine. To do so he had
to climb and stand on a table; after a while some oil which had poured on the table made the
table slippery.
The Plaintiff nevertheless stood on the table to pour oil cake into the machine and he slipped and
fell on the machine and his left hand trapped by the moving parts of the machine. Some of his
fingers were amputated. The machines moving parts however were not covered contravening
Section 23 (1) of the Factories Act.
It was held this notwithstanding; the Plaintiff would not deliberately put himself on to the risk
and then rely on the Defendant’s non-compliance of the law. This is because the Plaintiff was
aware that the table was slippery and as a reasonable person he should not have stood on the
table covered with oil without taking precautions to avoid slipping and falling especially having
regard to the nature of machine on which the Plaintiff was working. The Plaintiff had therefore
contributed to his own injury.
.
Osman Dhahir Mohammed v Mohammed
The court apportioned liability at 50% to 50% when it was established that the Defendant and the
Plaintiff contributed equally to the accident. The Plaintiff was a passenger in the Defendant’s
lorry when it got stuck in the mud and had to be pushed; after some pushing the driver decided
that he would later reverse the lorry and told those who were pushing the lorry to stay clear so
that he could reverse.
He did not however make sure that everyone had moved before he started to reverse. The
Plaintiff in her part failed move away from the lorry’s path even though she had heard the
driver’s instructions. It was held that they had both contributed equally to the accident.

Illegality (Ex turpi causa non oritur actio)

The defence of illegality is available when the Plaintiff was involved in an illegal activity at the
time of the injury.
Ashton v Turner [1981] l QB
The Plaintiff was injured while escaping from a burglary scene. It was held that he could not
succeed because as a matter of public policy the law does not recognise a duty of care owned by
one party to crime to another in respect to action done in furtherance of that crime.

Pitts v Hunt
This defence was also raised in the case of Pitts v Hunt. It was stated by the court that a claimant
cannot claim damages for an act which arose due to his own illegal act or participation in it.

Exclusion and liability

The defendants may by agreements otherwise exclude all potential liability to another person’s
incidence of exposing himself to the risk of a possible claim. See the case of Hedley Byrne
&Co. Ltd.