AN APPRAISAL OF THE DEVELOPMENT OF THE TORT OF NEGLIGENCE IN NIGERIA.
As social organization developed from a predominantly agricultural to a predominantly technological and urban system, as the relations of men became more and more intimate, the greater was the need, the need of Law. A basic force at work here is change which necessarily has its effects upon the law, habits, manners, modes of thought, the production of goods and distribution of goods. The very sizes of the population are far different today than they were a century and half ago. As the society develops law too develop, along, in fact law is one of the greatest instrument for changes and developments1
These changes and developments brought about the tort of negligence as a separate and independent tort (Though it is of a recent origin) 2. It is necessary to emphasize that the law of tort, like those other branches of the law, is concerned with the question of liability; an action founded upon tort is an action between persons, either natural or artificial (i.e. corporation) and the outcome can only be that one of them, the defendant is or is not liable to do or refrain from doing something at the suit of the other. If there is no defendant whose liability can be established according to the principles of the law then the plaintiff is left without redress.
The tort of negligence, in its formative stages, was treated merely as a mode of committing other torts and not as an independent tort itself until 1825.
- Gordon Post, (1945) An Introduction to Law, Sweet and Maxwell Londonp 1
- Winfield and Jolowicz,(1989) Law of Tort, Sweet and Maxwell, London p 75
Consequent upon frequency of actions in which negligence was the substance of the action, the increase in mechanization and industrialization of society and the consequent multiplication of personal injury caused by negligence have all led to the idea of negligence as a separate tort itself and not simply as a mode of committing trespass or other torts.
Then came the view that liability for negligence can only exists if the case is covered by a duty which has already been recognized3. It was put most forcibly in Landon‟s case4 that “Negligence is not actionable unless the duty to be careful exists. And the duty to be careful only exists where the wisdom of our ancestors has decided that it shall exist”.Certainly, it is true that in denying the existence of a duty in some cases the judges have done so on the ostensible ground that no authority for such a duty exists, but recently, they have not hesitated to produce a new duty when it has seemed right to them to do so. That is why Lord Denning L.J. has said, “If we never do anything which has never been done before, we shallnever get anywhere.The law will stand still while the rest of the world goes on; and this will be bad for both”5.
The most important thing that has ever happened to the tort of negligence; is the decision in Donoghue v.Stevenson6, a manufacturer of a ginger beer sold to a retailer ginger beer in an opaque bottle. The retailer resold it to A, who treated a young woman of her acquaintance with its contents.