By Awa Kalu, SAN

In the previous installments of this piece, we have seen that very often, a simple journey by bus or indeed, any other means of transportation, may lead to a result that carries varied legal consequences. Again, great reliance will be placed on our imaginary journey in an akpuruka bus. The presumption is that that grade of bus is quite often, not in a road-worthy condition and it would, in our hypothetical context, be fair to assume that putting such a bus on the highway in the busy season of Christmas will amount to negligence.

*Awa Kalu, SAN

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 recognise 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.