RIGHTS ON NEGLIGENCE: DUTY OF CARE

[Olajire Deborah]

NEGLIGENCE

In general parlance, negligence means a careless or inadvertent act or omission by a person which puts the other person at risk. This is more or less the same definition of negligence under the law. The defendant here may not have acted with any intention to harm others, but must have failed to act or acted in such careless manner that resulted in injury to others. Negligence is, therefore, the omission to do something which a reasonable man in those circumstances would do, or doing something which a reasonable man in that same situation will not do.

Under the law, however, in cases of negligence, some conditions must be established. These are, one, that the defendant owed the victim a duty of care; second, that he has breached this duty of care, and third that the victim has suffered some injuries as a result of this breach. We shall now consider these conditions one after the other.

a. Duty Of Care:

To determine that the defendant owes you a duty of care under negligence, three things must be established, as follows:

1) There must be a relationship between the defendant and the victim. Wwhen you talk of relationship here, it does not mean that the defendant and the victim must have a filial, biological or contractual relationship. It only means that there must exist in law a situation that brings them into contact with one another. For example, when two drivers approach themselves from opposite directions, the law automatically at that instant creates a relationship between the two of them, and the law also assumes that that situation binds them together in such a way that both owe a duty of care to each other, though they never knew each other beforehand, or might never met again after that.

2) From that relationship, there must be a standard of conduct between the defendant and the victim which is to guide the relationship. In our previous example of two drivers approaching each other, a relationship has already been established. Out of that relationship, the law also automatically sets a standard of conduct between them. For instance, the law expects that the driver of a vehicle is expected to maintain his lane and avoid collision with the other driver. Again, the law expects that a driver of an oncoming vehicle is not expected to drive against the traffic, normally called “one way”. Therefore, the law of negligence expects that there is a recognized standard of behaviors between the defendant and the victim.

3) Thirdly, once the law has established a relationship between the parties, and has set a standard of conduct between them, it now goes further to determine the level and scope of the duty owed by one to another.

So, before you can determine whether someone has committed the tort of negligence against you, you must first consider if that person owes you a duty of care by establishing that there is a relationship between you both, out of which there is a standard of behavior from which the level and scope of the duty will be determined. It must be clear that the defendant owes you a duty of care which he must ordinarily observe in order to prevent injury to you or your property. Therefore, the tort of negligence imposes a duty of care on the defendant to avoid acts or omissions which he is ordinarily expected to foresee will put his neighbor at risk. My neighbor in law does not mean the person next door but persons who will directly be affected by my actions in such a way that I must put them in mind in whatever I am doing or omitting to do.

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