Introduction:

Negligence generally means carelessness in doing an act or making an omission. Negligence

may be an ingredient of some tort such as trespass and nuisance. But, it is also a separate
tort which originated early in the 19 th century. Although of fairly recent origin, it is the most
important of all torts; more literature has been written on it than or any other tort. Again,
negligence as a tort, involves the existence of a legal duty to take care owed to the plaintiff,
breach of that duty by the defendant and damage resulting from the breach to the plaintiff.
Ordinarily, the plaintiff must prove by evidence, regarding the defendant’s conducts,
that the defendant was negligent. But often only the defendant knows how and why the
accident happened. In such a case the plaintiff can sometimes invoke the assistant of the rule
of evidence known by the latin maxim Res Ipsa Loquitur (“the event speaks for itself”).

In the light of the foregoing, this paper analyses the applicability of the principle of Res Ipsa
Loquitur in negligent actions. To this end, the objective of this paper shall be to highlight the
essentials and effects of the application of the principle in case involving negligent actions.
Lastly, the paper concludes that the doctrine has assisted the courts in ensuring that persons
who suffer harm or damage as a result of the careless conduct of others are protected are duly
compensated.

A General Survey of the Nature of

Negligence actions

Definition of Negligence:

The term ‘negligence’ is both a concept of the law of torts and an independent tort. It is this
later aspect alone that will be death with in this paper. As an independent tort, negligence
has been defined broadly “as the breach of a legal duty to take care which results in damage
undesired by the defendant, to the plaintiff”.1 Accordingly, it is not every act of carelessness
or negligence which is actionable under the tort of negligence. This is in tandem with the
observation of Lord Wright in the case of Lochgelly Iron and Coal Co. Ltd. v. Mcmullcan 2
where he stated 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 thereby suffered by the person to whom the duty was owed.

Elements of the Tort of Negligence:

There are three essential elements of tort of negligence. A plaintiff must establish
these three elements in order to succeed in an action for negligence.3 The elements are:
1. A duty of care owed by the defendant to the plaintiff.

2. Breach of that duty by the defendant.

3. Damage to the plaintiff resulting from the breach.

These elements will now be briefly examined.

Duty of Care Owed by the Defendant to the Plaintiff:

This is the first question to be determined in any action for negligence. Thus, liability in
negligence will only arise where the defendant owed the plaintiff a legal duty to take
reasonable care in the circumstance of the case and it is a question of law whether in a given
situation a duty of care exists or not. Today, the most important creative generalization of
the existence of a duty of care is contained in the judgment of Lord Atkin in Donoghue v.
Stevenson.4 There, the plaintiff sued the defendant in negligence alleging that she became
seriously ill as a result of drinking ginger beer manufactured by the defendant which
contained a decomposed snail.
The ginger beer which was sold in an opaque bottle was bought from a retailer by a friend.
There was privity of contract between the plaintiff and the defendant and therefore no
contractual duty. However, the court held that a manufacture of an article owes a duty of
care to the ultimate consumer to see that the article is free from any defect likely to cause
harm. The House of Lords went further in this case to lay down the reasonable “foreseability
test” otherwise known as the “neighbour principle” 5 with a view to guiding the courts in
determining situations where there is a breach of legal duty to take care. Under this
neighbour principle, the test of liability for negligence is based on reasonable foreseability
of harm to persons who are likely to be harmed or negatively affected by a particular act or
omission.

Breach of the Duty of Care by the Defendant:

The element of breach of the duty of care by the defendant seeks to determine whether the
defendant was negligent. The law has set a yardstick for measuring whether the defendant is
in breach of a duty of care. This yardstick is the standard of care which the ordinary
reasonable man could take in the circumstances. This supports the opinion of Anderson B.
in Blyth v. Birmingham Water Works Co.,6 when he stated that:
“Negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human attains, would do or doing
something which a prudent and reasonable man would not do.”

Again, foreseability is relevant in determining whether the conduct of the defendant falls
below what is expected of the reasonable man. It is not the only factor, however, for the
degree of care which the law requires human beings to observe in the conduct of their affairs
varies according to the circumstances. These circumstances which affect the degree of care
include: the likelihood that injury will result; the seriousness of the injury if it occurred; the
utility of the defendant’s act and the practicability of avoiding harm.

Damage to the Plaintiff Resulting from the Breach:

Negligence is not actionable per se but upon proof of actual damage. Thus, the plaintiff
must prove that he has suffered damage for which the defendant is liable in law. In other
words, a plaintiff does not recover compensation for every damage which he sustains as a
result of the defendants’ breach of duty. He will fail if the court considers that the damage is
too remote or that the injury he sustained was not a consequence of the defendant’s breach
of duty of care.

Nature and Application of the Principle of Res Ipsa Loquitur in

Negligence Actions

Meaning, Nature and Purpose of the Doctrine of Res Ipsa Loquitur:

The doctrine of Res Ipsa Loquitur simply means “the thing speaks for itself”. In the case of
Strabag Construction (Nig.) Ltd. v. Ogarekpe,7 the court observed as follows:
“The meaning of the phrase Res Ipsa Loquitur is this: that there is in the circumstance of the
particular case, some evidence which viewed not as a matter of conjecture, but reasonable
argument, make it more probable that there was some negligence upon the facts as shown and
undisputed.”

Again, the maxim is no more than a rule of evidence affecting onus. It is based on common
sense, and its purpose is to enable justice to be done when the facts bearing on causation and
on the care exercised by the defendant are at the outset unknown to the plaintiff and are, or
ought to be within the knowledge of the defendant.8

Furthermore, the doctrine of Res Ipsa Loquitur is to the effect that when the thing is shown
to be under the management of the defendant or his servants, and the accident is such as in
the ordinary course of things does not happen if those who have the management use proper
care, it affords reasonable evidence, in the absence of explanation by the defendant, that the
accident arose from the want of care.9 This highlights certain requirements that the plaintiff
must prove before he can successfully rely on the doctrine.

Requirements of the Doctrine of Res Ipsa Loquitur:

a. The plaintiff must establish, that the thing or object causing the injury was under
the management and control of the defendant or his servants; and
b. That the accident was of such kind as would not in the ordinary course

of things happened without negligence on the defendant’s part

Firstly, in (a) above, it is a question of fact in each case as to whether or not the
thing causing the accident was under the defendant’s control. Thus, in the most common
type of case, that of negligence driving, the driver of the motor vehicle will be presumed to
have sufficient control over his vehicle and the surrounding circumstances to attract the
doctrine.
Again, where the activity causing the damage is under the control of one of the
several servants of the defendant and the plaintiff is unable to identify which particular
servant had control, he may still invoke the doctrine so as to make the defendant
 vicariously liable. Thus, for example, a hospital authority has been held liable to a patient
in respect of negligent treatment; even though the patient could not show which member of
the hospital staff was responsible.10

On the other hand, under (b) above, negligence will be presumed where the
common experience of mankind shows that the type of mishap which has occurred would
not normally have happened unless the defendant had been careless.

Application of the Doctrine of Res Ipsa Loquitur in Negligent Actions:

The doctrine of Res Ipsa Loquitur has been successfully applied in a number of cases. Where
the maxim applies, it shifts the onus of proof from the plaintiff to the defendant to show
either that the accident was due to a specific cause which did not involve negligence on his
part or that he had used reasonable care in the matter.11

Furthermore, the effect of the invocation of the doctrine is to afford prima facie, evidence of
negligence, so that the defendant cannot succeed in a submission of “no case to answer”.
Thus, in Ibekendu v. Ike,12 the respondent as plaintiff sued the appellant at the High Court
claiming damages for injuries sustained in an accident caused by the negligence of the
appellants. The said accident occurred when the haice-bus driven by the appellant swerved
from its own side of the road to the other side and collided with the respondent who was
walking by the side of the highway. The bus eventually ended up in a ditch along the road.
The court held that these facts clearly raised a prima facie presumption of negligence which
automatically brings into play the doctrine of Res Ipsa Loquitur, thereby shifting the onus
on the appellant to provide an acceptable and credible explanation to show why it
happened. Omo J.S.C.13 graphically presented the position of the law as follows:
“Normally, the onus of proof of the negligence alleged at the outset is on the plaintiff, but
where the doctrine is applicable after evidence of how the accident occurred is given by the
plaintiff, the onus shifts on the defendant to offer an explanation as to why the accident
happened. Such explanation will seek to show that the defendant was not at fault”.

Conversely, the doctrine will not apply where the facts proved are equally consistent with
accident as with negligence and where there is evidence of how the accident happened and
the difficulty arises merely from an inability to apportion blame. Thus, in WACC Ltd. v.
Caroline Poultry Farm Ltd.,14 the respondent an owner of a poultry farm with bad odour had
engaged the services of the appellant to control and remove the odour. After the appellant
carried out the service, the respondent’s birds started dying in large numbers. Consequently,
the respondent brought this to the attention of the appellant who did not respond. At the trial,
the respondent gave evidence through three witnesses to the effect that it was the
disinfectant used by the appellant in removing odour that made the birds to die in their
numbers after inhaling the substance.

The trial court gave judgment in favour of the respondent and awarded it special and general
damages. However, on appeal, the Court of Appeal allowed the appeal holding that, the
respondent in his Statement of Claim, attributed the death of its birds in large numbers to
the spraying of the farm by the appellant. The means the cause of the loss of the birds was
known by the respondent. Accordingly, the court further held that the trial court was wrong
in applying the principle of Res Ipsa Loquitur since the respondent knew the cause of the
incident and the respondent had the duty to prove that the known cause was eventually
responsible for the death of the birds.
On the authority of the above case therefore, where the cause of the accident is known, the
doctrine of Res Ipsa Loquitur will not apply. In such a case, the plaintiff will only be
required to plead and prove the particulars of the defendant’s negligence. 15 However, a
plaintiff may plead and rely upon the doctrine of Res Ipsa Loquitur in the alternative to the
particulars of negligence already pleaded. This was confirmed by the Court of Appeal in the
case of Flash Fixed Odds Ltd. v. Akatugba,16 when it held that ‘where a plaintiff alleges
negligence and provides that particulars of negligence, he has given to himself the burden of
proving the particulars and doctrine of res ipsa loquitor may not arise unless pleaded in the
alternative.’17

Additionally, it is common for the defendant to attempt to rebut the inference of negligence
by contending that the accident was caused by some factor or factors beyond his control;
such as a skid, tyre burst, or a latent defect in his vehicle. Thus, in Kuti v. Tugbobo, 18 the
defendant driver sought to rebut the inference of negligence by relying on the fact that the
lorry skidded on the wet road and he submitted that it was through no fault of his own that
he was unable to control the vehicle. Lewis JSC; delivering the judgment of the Federal
Supreme Court held, inter alia, that if a prima facie case of negligence had been raised for
the defence to answer, it was not sufficient for the defendant to answer that the accident was
due to a skid. He had to go further and establish that the skid was not due to his negligence.
Similarly, in Jibowu v. Kuti,19 the defendant attributed the sudden swerving of his bus across
the road, which hit the plaintiff’s car on the other side of the road to a tyre burst on his
vehicle and pleaded inevitable accident. The Court of Appeal in reversing the decision of the
trial court, held that when there is a violent swerve as in this case, there is no doubt that the
doctrine of res ipsa loquitor will apply particularly as the defendant/appellant failed to prove
that the tyre burst was not due to his negligence.

Again, in Aniechebe v. Onyekwe,20 the defendant’s plea that the U-bolt of his vehicle
suddenly broke because of a latent defect also failed. The court held, in that case, that for the
plea to succeed, the defendant had to go further to show that he had taken all reasonable
precautions to ensure that the U-bolts were in satisfactory condition and that the vehicle was
in a fit mechanical state to be on the road.

One of the rare cases in which the defendants offered a satisfactory explanation about the
occurrence of the accident and discharged the burden placed on them by the doctrine of res
ipsa loquitor was the relatively recent case of Royal Ade Nig. Ltd. V. National Oil and
Chemical Marketing Company Plc.21 In that case, the appellants were contractors for the
respondents for the supply of petrol tankers to the respondent’s petrol station. During one of
such deliveries, a fire engulfed the appellant’s petrol tanker and it was completely burnt
down. The appellants as plaintiffs at the trial court sued the defendant/respondent in
negligence and claimed for the replacement of their petrol tanker, which was completely
burnt down. The court held that the company cannot be found liable in negligence without
first establishing the negligence of its servants and the appellants failed to do so.
It was further held that by the evidence of what they did before companies with the
discharge of fuel brought into their station by the appellant’s tanker and what happened to
their knowledge, the respondents were able to show that they where not negligent and
therefore succeeded in discharging the burden placed on them by the doctrine of res ipsa
loquitor.

Conclusion:

Conclusively, it is instructive to note that the burden of proving negligence (that is,
that they defendant was in breach of the duty of care he owed to the plaintiff) always lies
on the plaintiff. Thus, in order to render the defendant liable for negligence, there must be
either an admission of fault by him or sufficient evidence adduced by the plaintiff before
the court, upon which a finding of negligence can be based. The plaintiff must therefore
plead in his statement of claim, sufficient particulars of negligence to support his case and
prove same by evidence at the trial.
However, if the plaintiff can only prove that the accident happened, without being
able to show why it happened, the best option for him is to rely on the doctrine of res ipsa
loquitor. A party seeking to rely on the doctrine of res ipsa loquitor must plead the doctrine
specifically or the facts leading to such conclusion positively alleged in the statement of
claim.
Accordingly, the doctrine may be raised in any one of two ways; either-
a. by specifically reciting the latin maxim, or

b. by making known that the plaintiff intends to rely on the very collision itself as
evidence of negligence.

c. were in satisfactory condition and that the vehicle was in a fit mechanical state
to be on the road.
d. One of the rare cases in which the defendants offered a satisfactory explanation
about the occurrence of the accident and discharged the burden placed on them
by the doctrine of res ipsa loquitor was the relatively recent case of Royal Ade
Nig. Ltd. V. National Oil and Chemical Marketing Company Plc. 21 In that case,
the appellants were contractors for the respondents for the supply of petrol
tankers to the respondent’s petrol station. During one of such deliveries, a fire
engulfed the appellant’s petrol tanker and it was completely burnt down. The
appellants as plaintiffs at the trial court sued the defendant/respondent in
negligence and claimed for the replacement of their petrol tanker, which was
completely burnt down. The court held that the company cannot be found liable
in negligence without first establishing the negligence of its servants and the
appellants failed to do so.
e. It was further held that by the evidence of what they did before companies with
the discharge of fuel brought into their station by the appellant’s tanker and
what happened to their knowledge, the respondents were able to show that they
where not negligent and therefore succeeded in discharging the burden placed
on them by the doctrine of res ipsa loquitor.