Understanding Negligence in Kenyan Tort Law
Negligence in Kenyan Tort Law
Negligence is a breach of a legal duty of care that results in damage to the plaintiff by the defendant. Kenyan tort law is based on English common law.
Key Elements of Negligence
Duty of Care
A legal obligation to take reasonable care to avoid causing harm.
The Neighbour Principle, from Donoghue v Stevenson, states that a duty of care is owed to those closely and directly affected by your actions. Foreseeability is essential; the injury to the plaintiff must be reasonably foreseeable by the defendant, as seen in Palsgraf v Long Island Railroad. It doesn’t matter if the plaintiff is physically close to the defendant; what matters is whether the injury could have been foreseen.
A duty of care can arise from acts, omissions, or even statements, as illustrated in Hedley Byrne & Co. Ltd v Heller & Partners Ltd. A duty of care is imposed on a person who makes a statement to another negligently or recklessly which results in severe emotional distress, as seen in Wilkinson v Downtown.
Public policy considerations may limit the imposition of a duty of care, as seen in Hill v Chief constable of Yorkshire Industries. Pure economic loss is generally not considered foreseeable and thus does not create a duty of care, as seen in Spartan Steel Alloys v Martin & Co. and Candler v Crane, Christmas & Company. However, if the Defendant causes emotional distress by extreme or outrageous conduct which results in bodily harm, a legal duty of care is imposed. A duty of care is not owed if the Plaintiff was not in the line of vision of the Defendant and was not put in reasonable apprehension of immediate bodily injury as seen in Bourhill v Young.
Breach of Duty
Failure to meet the required standard of care. The standard is determined by what a reasonable person would do in similar circumstances, as shown in Roe v Minister of Health. Professionals are held to the standard of a reasonably qualified member of their profession, as seen in Wells v Cooper and The lady Gwendolen.
Factors in establishing breach:
- Magnitude of the risk (likelihood and seriousness of injury), as seen in Bolton v Stone and Paris v Stepney Borough Council.
- Importance of the objective, as seen in Daborn v Bath Tramways motors co. Ltd and Watt v Herfordshin County Council.
- Practicability of precautions, as seen in Latimer v AEC Ltd.
Causation
A direct link between the defendant’s negligence and the plaintiff’s injury.
Factual causation: Use the “but for” test: the injury would not have occurred “but for” the defendant’s negligence, as seen in Barnett v Chelsea & Kensington Hospital and Cork v Kirby MacLean Ltd.
Legal causation: A direct causal link is easily established; however, an intervening event (novus actus interveniens) can break the chain of causation. Types of intervening events include:
- Intervening natural events/act of God as seen in Carslogie Steamship Co Ltd v Royal Norwegian Government and Besson v Allibhoy.
- Intervening acts of a third party as seen in The Oropesa case and Baker v Willoughby.
- Intervening acts of the plaintiff as seen in McKew v Holland & Hannen & Cubitts (Scotland) Ltd. and Wieland v Cyril Lord Carpets Ltd.
Remoteness of Damage
The injury must be a reasonably foreseeable consequence of the defendant’s negligence, as seen in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co and Hughes v Lord Advocate. Pritchard v JH Cobden Ltd illustrates how a court may limit liability based on public policy considerations.
Important Points of Law
Res Ipsa Loquitur
“The thing speaks for itself.” This shifts the burden of proof to the defendant when the cause of an accident is under the defendant’s control and wouldn’t normally occur without negligence, as seen in Scott v London & St. Katherine Docks Co. Cases like Byrne v Boadle, Gee v Metropolitan Railway, Turner v. Mansfield Corporation, Barkney V South Transport Co. Ltd, Mg Chun Pul V. Lee Chuen Tat, Kago V. Njenga, and Embu public Road services V. Jemima Riimu help illustrate when this applies.
Defenses to Negligence
Volenti Non Fit Injuria
(Voluntary assumption of risk): The plaintiff willingly and knowingly accepted the risk of harm. The acceptance must be free and voluntary as seen in Letang v Ottawa Electric Railway Co. Cases such as Smith v Baker & Sons, Pitts v Hunt, and Morris v Murray further illustrate the application of this defense.
Contributory Negligence
The plaintiff’s own negligence contributed to the injury. Damages are reduced proportionally to the plaintiff’s contribution, as per the Law Reform Act Cap 26 and seen in cases such as Jones v Livox Quarries, Arkay Industries Limited v Abdalla Amani, and Osman Dhahir Mohammed v Mohammed.
Illegality
(Ex turpi causa non oritur actio): The plaintiff was involved in an illegal activity at the time of the injury, as seen in Ashton v Turner and Pitts v Hunt.
Exclusion of Liability
The defendant has excluded potential liability through an agreement with the plaintiff, as seen in Hedley Byrne & Co. Ltd.