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The thrills and frills of Christmas (3)

By Awa Kalu

As Anderson B., noted in the leading case of Blyth v. Birmingham Waterworks Co. (1843 -60) All E.R. Rep. 478, “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”.

Broken down in legal shorthand, a person will be held liable in an action founded in negligence if the act complained of results from a breach of duty owed by the defendant to the plaintiff. The presumption, in that connection, is that a duty of care was owed the plaintiff and a breach of that duty had occurred.

A third element upon which liability is founded is that damage to the plaintiff had resulted from that breach. Lord Wright, in the well known case of Lochgelly Iron & Coal Co. v. McMullan put it beyond doubt that negligence is not created simply by absent mindedness or carelessness when he held that “in strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission; it properly connotes the complex concept of duty, breach and damage suffered by the person to whom the duty was owing”.

It is always a question of fact, in most cases, whether or not a duty of care is owed by one person to another. In some other cases, the duty of care situation and its breach may be presumed from the circumstances surrounding the event which has happened. However, where the accused and his accuser seem to be partaking in an event which ordinarily would not receive the blessings of the law, the courts would be most reluctant to infer a duty of care.

Accordingly, in the equally well known case of Ashton v. Turner (1980) 3 All E.R. 870 where a participant in a crime was injured through the careless driving of his friend with whom he was fleeing from a burglary scene in which both had participated, it was held that no duty of care existed. The trial Judge was emphatic on this matter when he enunciated the principle in rather lucid terms. He said that “The law…may in circumstances not recognize the existence of a duty of care by one participant in a crime to another participant in the same crime, in relation to acts done in connection with the commission of that crime.

That law is based on public policy, and the application of the law depends on a consideration of all the facts in the case. I have come to the conclusion that a duty of care did not exist between the defendant and the plaintiff during the course of the burglary and during the course of the subsequent flight in the get-away car.”

Having regard to the akpurukaness of some of the buses which ply our highways, it is quite a matter of conjecture, what the courts would do should a passenger, seeing the rickety condition of such a bus, enter same in circumstances where such a passenger may be called an attachee. You need to recall, as had been previously explained, that attachment passengers do not normally have any contractual connection with the bus owner even though in normal cases, such passengers board at the instance of the driver. The peculiar question which inevitably will arise, is whether a bus driver owes any duty of care to the attachee. However, what is not in doubt is that there are settled instances where a driver would undoubtedly be held to owe a duty of care to road users. By road users, we have in mind drivers and passengers in other vehicles, pedestrians, cyclists of all kinds (including “Okada”), truck pushers, innocent by –standers, etc.

Any person for instance, who drives under the influence of alcohol, or other intoxicant, will on the authority of Queens v. Brimwell (1977) Q.B. 859 be held to have acted without due care if he brings harm unto others. Thus, by virtue of the provisions of section 8(1) of the Federal Highways Act (Cap. 135 LFN 1990), “any person, who when driving or attempting to drive, or when in charge of, a motor vehicle on a Federal Highway is under the influence of drink or drugs to such an extent as to be incapable of having proper control of such a vehicle, shall be guilty of an offence and liable on conviction to fine…or to imprisonment…”

A not too infrequent act is that of overloading or driving a vehicle in unsafe condition or at an excessive speed. There is the story of a man who took four passengers in the front of his saloon car. In order to create space for his fourth passenger, he had to allow the said passenger to sit beside him (the driver) on the left to the extent that the driver was hedged between the passengers.

At a road block mounted by policemen, a policeman furious about the obvious danger to which the passengers were thus exposed slapped the passenger sitting to the left of the driver but later realized that he had punished the wrong person. Would that passenger be able to recover in trespass?

The above example may more interestingly, serve as a reminder that a lot more consideration has been given to what is commonly referred to as the “Nigerian factor” in our affairs. The Nigerian factor refers simply to those indices of life which are by far, peculiar to the conduct of our affairs in our local environment. Thus in the case of Ekwo v. Enechukwu (1954) 14 W.A.C.A. 512, the West African Court of Appeal did not find it strange that the plaintiff had gone to consult a native doctor notwithstanding the fact that the defendant, in whose lorry the injury had occurred, offered to take the plaintiff to hospital for proper medical treatment.

Foster-Sutton P., stated his views as follows: “I think it is important to remember that the accident occurred in Nigeria, where it is common knowledge that a considerable proportion of the population still hold a strong belief in their native doctors. In my view, this is not an occasion for considering the merits of such belief. It is the widespread existence of it which is relevant …”. His Lordship concluded rather firmly that “In all circumstances, can it fairly be said that the plaintiff must be regarded as having acted unreasonably in making the choice he did, suffering from shock and in great pain as he undoubtedly was, and bearing in mind the belief in native doctors to which I have already referred? I think an injustice will be done by holding that he did, if, in a sudden emergency, he makes a choice which he might reasonably think proper; although those before whom the case comes for trial are, with more time to consider the matter, and not sharing the belief in the native doctors, able to see that t
he course which he adopted was not in fact the best”.

It has to be borne in mind that that case was decided in 1954 i.e. fifty years ago. With the present state of affairs whereby there is a preponderance of doctors versed in western medicine and hospitals virtually a few kilometres apart, it may be difficult to pre-empt our Judges on how they will choose to balance the liability of the defendant with facts upon which ordinarily the victim would be adjudged to be liable for contributory negligence in the light of the fact that the victim who meets with an accident ought to take reasonable steps in mitigation of the harm which comes upon him.

The normal scene of an accident in this country (a very common occurrence during Christmas) is usually one of confusion rather than a controlled exercise for the rescue of victims and the minimization of damage or injury. I recall with pain the fact that during the yuletide, I chanced upon the scene of an accident which at the time I met it was in absolute chaos. The rescue effort saw individuals lacking the rudimentary skill for the handling of trauma.

There was so much confusion and commotion that most of the rescuers spent more time answering questions about how the accident occurred, which of the drivers involved in the accident was the more likely to be at fault, about the identity of the victims and above all general speculation about everything else. Meanwhile, life was fast ebbing out of those who in more regulated environments would have their lives saved.

The normal scene of an accident in this country (a very common occurrence during Christmas) is usually one of confusion rather than a controlled exercise for the rescue of victims and the minimization of damage or injury. I recall with pain the fact that during the yuletide, I chanced upon the scene of an accident which at the time I met it was in absolute chaos.

The rescue effort saw individuals lacking the rudimentary skill for the handling of trauma. There was so much confusion and commotion that most of the rescuers spent more time answering questions about how the accident occurred, which of the drivers involved in the accident was the more likely to be at fault, about the identity of the victims and above all general speculation about everything else. Meanwhile, life was fast ebbing out of those who in more regulated environments would have their lives saved.

By more regulated environments, reference is made to those developed nations where a mere telephone call will trigger the response of those who have the requisite knowledge and skill in handling emergencies. In our peculiar environment, as already noted, an emergency occasions bewilderment, wailing and such display of panic that would usually foster more confusion. In a head-on collision, it is usual to find the deployment of very heavy objects for the necessary and inevitable dismemberment of the vehicles involved in the collision in order to extricate trapped passengers.

Often, more damage is done to the victims through improvised rescue. The question then is whether the rescue scenario painted above has any implications under the law. It has to be stated quickly that the law is happy with the rescuer (call him the Good Samaritan) and though this subject is intricate, it ought to be noted rather quickly too, that the law also offers protection to the rescuer.

This principle is stated in simple terms and it is to the effect that if someone, acting negligently, puts another person in a peril of a kind which warrants rescue, the negligent person is not only liable to the imperilled but equally to the person who subsequently comes to rescue the imperilled victim. The law is founded upon the emphatic dictum of Cardozo J. in Wagner v. International Railways (1921) 232 N.Y. Reports, 76.  He stated the principle as follows: Danger invites rescue; the cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequence.


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