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The thrills and frills of Christmas (4)

By Awa Kalu

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.

It recognizes them as normal and possible … The wrong that imperils life is the wrong to the victim; it is also the wrong to the rescuer. What this principle simply means is that if a person embarks on a rescue and thereby sustains an injury, he will be entitled to recover in respect of the injuries. However, it must be borne in mind that a principle which may upset our own brand of rescuers was established in the Canadian case of The Ogopogo (1971) 2 Lloyds Rep. 410.

The decision in that case is to the effect that a rescuer may be liable in negligence if it is shown that by the way in which he performed the rescue, he acted negligently. Similarly, if out of exasperation the rescuer abandons the rescue effort and leaves the victim in a condition worse than he would have been (had no rescue been embarked upon in the first place) the rescuer would be liable. This may be a lesson to those who, without any skill whatsoever, descend on an accident scene either with a heavy heart or in absolute panic and inflict more damage than would otherwise have been expected.

Perhaps it would seem apposite to drop a hint or two about the condition of our roads – be they federal, state or local government roads. Most Nigerians and particularly frequent road users believe that the condition of our roads contributes immensely to the accidents which occur either on our highways or within town. As has rightly been noted by the authors of Clerk and Lindsell on Torts, ‘at common law, there was no liability for nonfeasance, e.g. when a road became dangerous through lack of repair, but there was liability for misfeasance’.
Reliance was placed on a section of the Highways Act which imposed on “the authority who are for the time being the highway authority for the highway maintainable at the public expense…a duty to maintain the highway”.  The authors have explained that “this duty is owed to all persons who use it in the normal way and in the normal course of events, bearing in mind that the drivers do make mistakes and miscalculations”. This writer is not aware of any highway in this country not maintained from public expense and we may, with humility, venture the opinion, that whichever authority – be it federal or state – that owns and controls the highway owes a duty to properly maintain same. It is probably for this reason that there is now a tussle between the federal government and the Nigerian Labour Congress (NLC) as to whether toll gates or sales tax will be more appropriate a tool for generating revenue for highway maintenance.

Attention must be drawn to the decision of the Court of Appeal in England in the recent case of Gorringe v. Calderdale Metropolitan Borough Council (The Times Law Reports 2000 pages 202 – 203) wherein it was held that “a highway authority was under no duty to paint warning markings on the surface of the road under section 41 of the Highways Act 1980 and therefore was not negligent for failing to do so”.

It was further held that “the highways authority’s statutory duty to promote road safety under section 39 of the Road Traffic Act 1988, which was primarily concerned with preventing or reducing accidents, gave rise to a parallel common law duty of care where there was evidence that, before the accident suffered by the claimant, the site ought to have been regarded as an accident black spot and the authority irrationally failed to take appropriate measures to prevent accident at the site”. It is apparent that a few lessons may be drawn from that decision. For instance, there are obvious black spots on our highways that have clearly become fabled (at least amongst frequent travellers) as accident sites. It does not matter that such sites have become notorious because the accidents occur at night when night buses are about and at liberty to fly or because the sites are supposedly dedicated to mammy water (if you believe in it).

The point to make is that warnings ought to be conspicuously displayed at such sites to prevent re-occurrence. Perhaps, the old perilous road through the “ninth mile corner” was mindful of this fact when it warned motorists to “better be late than the late”. It appears that reasonable effort has been made, even if tangentially, to examine the thrills and frills which accompany a road user in the course of the yuletide.

There is some consolation for those who feel cheated by the economy and therefore cannot afford to travel by any other means – especially by air. Our discerning readers would by now, have become acquainted with the travails of our brothers and sisters who returned from the US in a particular airline and later became stranded in Nigeria on account of the inability of the airline to ferry them back to their abode in the United States. As was widely reported, some of the passengers took ill while here in this country, some others ran out of money due to the extended nature of their stay while a good number of others lost their jobs in consequence of being unable to return ‘as and when due’. It is not difficult to fathom the fact that the airline in question would by now be facing heavy weather from those whose trip to Nigeria for the purpose of Christmas later turned into a nightmare.

As a reminder, this article was meant to call our attention to the fact that “the passenger who boards a vehicle, the shopper who enters a shop in order to make some purchases or even for window shopping, the would-be celebrant who books a band or disc jockey, the innocent bystander who witnesses an accident, the masquerade or other dancer who throws up a lot of dust while performing, the musician who plays his music at the highest decibel and that visitor (invited or uninvited) who pays you a visit in the course of the yuletide all trigger activities that have a causal connection with the law”.

Unfortunately, bearing in mind the wide latitude which individual consideration of these issues will entail, it is hoped that the reader will not be too disappointed if the field at issue is terminated without much ado. It will be sufficient to note that further consideration of this topic will drag us into the law concerning occupier’s liability, vicarious liability, exclusion clauses and of nuisance.

Above all, it will lead to a review of the intricacies surrounding the legal personality of masquerades. For, I recall that a few years ago, an Nsukka Magistrates Court acquitted some masquerades on charges of assault on the ground that a masquerade is a spirit. Spirits have no capacity under our laws to commit offences. You may have a good bite on the implications of such theory.

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