MZUMBE UNIVERSITY MAIN CAMPUS

FACULTY OF LAW

PROGRAME LLB I
COURSE LAW OF TORT
COURSE CODE LAW 128
LECTURER’S NAME MS. P. MUSAMBA
NATURE OF TASK GROUP ASSIGNMENT
GROUP NUMBER 04 STREAM C
No. NAMES REG. NUMBER
1. SUZY FABIAN MTANGA 1236118/T.23
2. EMMANUEL TAMSON NGWETA 2631080/T.23
3. HEPIFANIA ELIAS CHANDA 1236137/T.23
4. AGNES MGOSI MHERE 1236115/T.23

5. CHRISTOPHER JOSEPH DAMAS 1236092/T.23

6. EMMANUEL WADUGU MALLON 1236119/T.23
7. MARIAM CHACHA ZAKAYO 1236267/T.23
8. ABDUL A. MAULID
QUESTION:
Ruby, who recently passed her driving test, decides to drive into town. On turning right at a
junction, she negligently fails to see a car being driven by Sapphire and crashes into it. Sapphire
was not wearing a seatbelt at the time of the accident and was badly injured. Sapphire’s husband,
Tom, hears the crash and rushes to the scene of the accident; he is so shocked at seeing
Sapphire’s injuries that he shortly afterwards develops a psychiatric illness. Explain the essential
ingredients of a negligence action and consider the legal liability of Ruby in the Law of Torts.
 TABLE OF CONTENT

1.0. INTRODUCTION

1.1. MEANING OF NEGLIGENCE

2.0. MAIN DISCUSSION

2.1. INGREDIENT OF NEGLIGENCE ACTION.

2.1.1. DUTY OF CARE

2.1.2. BREACH OF THE DUTY OF CARE

2.1.3. DAMAGE RESULTING FROM THE BREACH OF DUTY.

3.0. LEGAL LIABILITY OF RUBY IN THE LAW OF TORT.

3.1 WHETHER RUBY CAN BE LIABLE IN NEGLIGENCE TOWARD SAPPHIRE

3.2 WHETHER RUBY HAS LIABILITY FOR NEGLIGENCE ACTION TO

PSYCHIATRIC INJURIES TOWARD TOM

3.3 POSSIBLE DEFENCE AVAILABLE FOR RUBY’S LIABILITY

4.0. CONCLUSION

5.0. REFERENCE

1.0. INTRODUCTION
1.1. MEANING OF NEGLIGENCE

Negligence, is an act or omission which constitute a breach of duty of care to another person by
the person whose act or fail to act and which cause another person to suffer harm. Also,
Alderson B, in the case of BLYTHE V. BIRMINGHAM WATER WORKS1 who defined
negligence as follows; “…omission to do something which a reasonable man would do or doing
something which a prudent and reasonable man wouldn’t do…”Negligence can be defined as an
omission to do something which a reasonable man would do or doing something which a prudent
and reasonable man would not do,2

Negligence was developed by lord Atkin in the case of Donoghue vs Stephenson,3 in this case
lord Atkin established the neighborhood principle by stating that;

“You must take reasonable care to avoid acts or omissions, which you can reasonably foresee,
would be likely to injure your neighbor (who is your neighbor) the answer seems to be persons
who are so closely and directly affected by my act that ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or omissions which
are called in question…”.4 Negligence is the most important tort in modern law. It concerns
breach of a legal duty to take care, with the result that damage is caused to the claimant. Just a
few examples of the type of case which might be brought in negligence are people injured in a
car accident who sue the driver, businesses which lose money because an accountant fails to
advise them properly, or patients who sue doctors when medical treatment goes wrong.5

Negligence is also defined as a conduct that falls below the standards of behavior established by
law for the protection of others against reasonable risk of harm. Thus, is when a person has a
conduct that missed the legal standard required or that departs from the conduct that a reasonable
and prudent person would to protect foreseeably risky or harm to the other person.

2.0. INGRIDIENT OF NEGLIGENCE

2.1.1. DUTY OF CARE

1
[1856] 11 EX 784
2
Prof. Binamungu. (2002). “Law of Tort in Tanzania” Researcher and publication department.
3
[1932].
4
Prof. Binamungu. (2002). “Law of Tort in Tanzania” Researcher and publication department.
5
E, Catheline & F, Quinn. (2009). “Law of Tort” British Library Cataloguing-in-Publication.
Negligence is essentially concerned with compensating people who have suffered damage as a
result of the carelessness of others, but the law does not provide a remedy for everyone who
suffers in this way. One of the main ways in which access to compensation is restricted is
through the principle of the duty of care. Essentially, this is a legal concept which dictates the
circumstances in which one party will be liable to another in negligence: if the law says you do
not have a duty of care towards the person (or organization you have caused damage to, you will
not be liable to that party in negligence, no matter how serious the damage.6 Before 1932 there
was no general duty of care and courts were very restrictive to impose liability on cases of
negligence. But this doesn’t mean there was no negligence since for instance road users,
occupier’s premises were having duty of care before 19327. The case of Donoghue v. Stevenson
8
established the principle of neighborhood by lord Atkin that “You are to love your neighbor i.e.
a person who are so closely and directly affected by my act that I ought to have them in
contemplation as being so affected when I am directing my mind to the acts or omissions which
are called in question”. The case expands the presence of duty of care in various aspects. In
1970’s and 1980 the scope of duty of care was expanded by courts. Any person can be liable for
negligence as the result of his act unless for policy reasons.

In 1990 through the case of CAPARO V. DICKMAN9 the court laid down three stages test to
determine whether a duty of care exist or not but before these stages the court would ask itself
the question “whether a duty of care has been established previously by case laws” If the answer
is yes then it is obvious that there is a presence of a duty of care and the need to go through those
stages is not important but if the answer is no then three stages should be tested to determine
whether there is duty of care or not. Those stage that the harm or loss or injury must be
reasonably foreseeable.

You can’t impose a duty of care where the injury imposed was not reasonably foreseeable. For
example, in the case of HOME OFFICE V. DORSET YATCH CO.10, the Boys who were taken
on a trip to Brown Sea Island by their officers escaped one night and they damaged the claimant

6
E, Catheline & F, Quinn. (2009). “Law of Tort” British Library Cataloguing-in-Publication.

7
Prof. Binamungu. (2002). “Law of Tort in Tanzania” Researcher and publication department.
8
[1932]
9
[1990]
10
[1970]
yard. The claimant sued the home officers for negligence. Held: The home officer was liable
because owed a duty of care to the claimant. There was a special relationship between the boys
and the home officers.

The duty of care is the obligation imposed on a person requiring them to take standard of
reasonable care when performing a certain act, that.

1, The act could foreseeably harm others

2; Whether there was a sufficient relationship or proximity between the claimant and the
defendant.

Proximity means nearness or closeness. Proximity doesn’t necessarily mean physical closeness
between the claimant and the defendant but the legal closeness between the two such as personal
relationship between the two, rank of time between the events11. The level of proximity differs
from one case to another depending on the type of damage suffered. Example where loss
suffered is economic loss then in that particular situation the claimant must prove the existence
of close relationship between him and the defendant.

3; It must be just and fair and reasonable to impose a duty of care. This goes hand with the public
policy morals and public interest. For example, in the case of ASHTON V. TURNER12, Facts:
Three drunken men had committed burglary and were seeking to escape in a car which was
owned by one of them. The car crashed and the claimant who was one of the passengers was
injured and brought a claim for negligence against the driver. Held: The driver was not liable
because of public reasons. It is important to note that if those two stages as discusses before on
how to determine the existence of duty of care succeeded but the last failed then no duty of care
can arise at all.

It was also stated in the case of LE LIEVRE AND DENNIES v. GOULD13 that

“The question of liability for negligence cannot arise at all until it has been established that the
man who has been negligent hold some duty to the person who seeks to make him liable for his

11
Prof. Binamungu. (2002). “Law of Tort in Tanzania” Researcher and publication department.
12
[1981]
13
[1891] 1 QB 491
negligence. What duty is there when there is no relation between parties by contract? A man is
entitled to be as negligence as he pleases toward the whole world if he holds no duty to them.”

A duty of care has been recognized in Tanzania in the following relationships;

(a) Doctor and patitient relationship

In the case of Theodoclina Alphaxard v. Medical Officer in charge of Nkinga
Hospital14 where Nkanga hospital was held liable for causing amputation of the minor’s
hand due to the negligence of the doctor on duty where the patient broke her arm and be
taken to the hospital by her father, on her first visit she could not be x-rayed instead just
given aspirin, the second visit x-ray revered fracture and was applied a plaster and be
directed to return whenever could the father notice the change of color, later on the third
visit she complained severe pain and taken back to hospital where she was not attended
from 3:00 until it was too late to save the child.
(i) the doctor’s instructions to the patient’s father were insufficient in that the need for
admission.
(ii) The father was not informed of the serious risks to his daughter, in the event of
deterioration of her condition.
(iii) That the nine-hour delay in attending to the patient on her third visit was a further
contributing to the need of amputation.
(b) Seller-Purchaser of fuel Relationship
In the case of B. A. Minga v. Mwananchi Total Services station15 where the respondent
was a seller of fuel gwnerally and kerosene in particular. The seller was used to mix
diesel with kerosene in order to increase the quantity of fuel in the market. The appellant
sent his child to purchase kerosene the purchased fuel was mixed with diesel it was put in
the small lamp cause explosion and fire which burned the substantial part of the
appellant.
property. the court held that; “the law imposes a duty to take reasonable care to avoid act
or omission which you can reasonable foresee would like to injure person so close and
indirect affected by your act…”
Purchaser and Consumer relationship (manufacturer of soft drinks)
14
[1992] TLR 235
15
[1972] HCD
 In Coca Kwanza Limited v. Bilson Mbezibwa, (PC)16 where the respondent lodged a
suit in Dodoma district court claiming damages of Tshs. 10 million for having suffered
pain from drinking a soft drink which goes by the name of stone tangawizi which was
negligent manufactured by the appellant. The respondent won the case both in trial and in
appeal.
(c) Landlord and Tenant relationship
In Michael Mwamiko v. Angetile Mwanjela17 where the tenant lost his wife (mother of
a young child) at and her mother-in-law were taking shower in the bathroom, where they
were residing in the process of the toilet which had developed cracks collapsed, the wife
of the plaintiff and the mother in law drowned. The landlord was found to be in such
relationship that required to have a duty of care of making sure that the toilets were fit to
be used by the members who occupied the premise.

2.1.2. BREACH OF DUTY OF CARE.

Breach of a duty of care essentially means that the defendant has fallen below the standard of
behavior expected in someone undertaking the activity concerned, so, for example, driving
carelessly is a breach of the duty owed to other road users, while bad medical treatment may be a
breach of the duty owed by doctors to patients.18 It is not sufficient for a claimant or plaintiff to
prove that there is a duty of care but also he needs to go further and establish that the defendant
breached that duty.

The plaintiff should prove that the defendant did something which a reasonable man couldn’t do
under the circumstances. The test is an objective test that; There should be standards of care such
every person should act according to those standards and the defendant must act with a degree of
care and skill expected from a reasonable man. For example in the case of DICKSON v.
BELL19, The defendant had left a loaded gun at his lodgings, well knowing the same to be
loaded with powder, wrongfully and injuriously sent a girl to fetch away the gun so loaded and
give it to him, he well knowing that the said servant was too young, and an unfit and improper

16
Civ. Appeal. No. 33 of 1999 at Dodoma (Unreported)
17
Civil Case No. 7 of 1999 in the High Court of Dar es salaam (Unreported)
18
E, Catheline & F, Quinn. (2009). “Law of Tort” British Library Cataloguing-in-Publication.
19
[1836] ALL ER.
person to be sent for the gun, while she was so sent and entrusted by the defendant, and had the
custody of the said gun accordingly, the girl took up the gun, and presented it, in play, at the
plaintiff’s son, a child between eight and nine, saying she would shoot him, and drew the trigger.
The gun went off, at and into the face of the plaintiff’s son whereby he became sick, and failed to
perform his lawful business, and put to great expense in procuring his cure. In this the defendant
was liable because he filled to consider the duty of care and the man owns instrument which is
danger on itself.

Factors taken into account by courts in deciding whether there is a breach of duty of care.

1; There was a probability of harm being caused to the claimant.

Where there is a probable likelihood of harm being caused to the claimant by the defendant,
there is breach of duty of care when the harm occurs. For example, in the case of BOTTON V.
STONE20 Facts, A person was a player in a cricket ground owned by the defendant while a
person playing in that ground hit cricket ball over the 17-foot-high fence. The claimant who was
in the street outside the cricket ground was hit by the ball had been hit outside the fence 6 times
in 30 years. Held, the defendant was not liable because the risk was foreseeable but very minimal
probability. The defendant had taken reasonable precautions of the risk of ball going outside. So,
the risk of the ball going outside the cricket ground was so small that is why defendant was not
liable.

2. Potential seriousness of the harm. Where the risk of injury harm is small, but the gravity of
injury is great if it occurs, it is more likely that the defendant shall be liable if injury occurs. For
example, in the case of PARIS V. STEPNEY BOROUGH COUNCIL21 The claimant was blind
in one eye and the defendant was aware of this disability, the claimant was working in the
defendant’s garage under a vehicle. A piece of metal went into his good eye, and he becomes
blind completely. At the time it was happened it was not standard to issue goggles. Held: The
potential seriousness of damage to the claimant was high/serious than other workers. Therefore,
defendant was liable for not providing goggles to the claimant.

3. Practicality cost. In this aspect we look if it is simple to take precautions and the cost of
avoiding the harm is not out of all proportion to the reduction of risk then the defendant would
20
[1978]
21
(1980)
have breached his duty if he fails to take actions. For example, in the case HALEY V.
LONDON ELECTRICITY BOARD22 Facts, the claimant who was blind man falls into the
hole which had been dug at a pavement by the defendant. The defendant had taken pre-cautions
to put a sign/warning to alert that there is a hole. Held, the court ruled that the precautions taken
was sufficient for sighted person and not a blind person and was unforeseeable that could walk in
the street. The defendant was held liable because it was not cost to take precautions compared to
the harm or injury suffered.

4. Value to the society. The usefulness of the defendant was trying to achieve. The usefulness of
the defendant’s action to the society. If you take reasonable care, the court may not hold
responsible by looking at the seriousness of the action and the value of your action.

2.1.3. DAMAGE

The negligence must cause damage; if no damage is caused, there is no claim in negligence, no
matter how careless the defendant’s conduct. In the vast majority of cases this is not an issue:
there will be obvious personal injury, damage to property or economic loss23. However, there are
cases where the claimant perceives that the defendant’s negligence has caused damage, yet the
law does not recognize the results of that negligence as damage.24 The plaintiff must prove that
he has suffered damages recognized by the law as the result of defendant’s negligence. In
damage the plaintiff will have to show two things as follows; It is the defendant’s act that
resulted to damage in question (it is the defendant who caused that damage) and to prove the
issue of foreseeability of the harm25. And the damage occurred was caused by the breach of the
duty of care. There must be the relation between the duty of care and the damage occurred.

(The damage suffered was reasonably foreseeable) the damage incurred by the plaintiff was not
too remote. Since if the damage suffered is too remote then the issue of remoteness of damage
comes to apply.
22
(1976)
23
E, Catheline & F, Quinn. (2009). “Law of Tort” British Library Cataloguing-in-Publication.

24
E, Catheline & F, Quinn. (2009). “Law of Tort” British Library Cataloguing-in-Publication
Data.

25
Prof. Binamungu. (2002). “Law of Tort in Tanzania” Researcher and publication department.
For example, in the case of BURNETT V. CHELSEA & KENSINGTON HOSPITAL
MANAGEMENT COMMITTEE26 Facts, A widow sued the hospital for negligence after her
husband died having attended the hospital in the evening and had been sent home by a doctor
without being examined. The husband died and the widow sues the hospital for negligence. Here
the hospital has a duty towards the deceased and breached the duty for sending him back home
without being examined. The issue raised by the court was whether the death of the husband was
the result of the hospital’s negligence due to breach of duty? Held, no liability, his death was not
a result of the breach of duty since the cause of death was arsenic poison. Therefore, if he would
have been attended, he will have died, also they were no antidote for that poison. The hospital
was not responsible because they didn’t cause the death of the deceased and finally didn’t cause
any damage.

3.0. LEGAL LIABILITY OF RUBY IN LAW OF TORT.

3.1. WHETHER RUBY CAN BE LIABLE IN NEGLIGENCE TOWARD SAPPHIRE

Every person has to consider or have the duty of care to his or her neighbor as it was shown in
the case of Donoghue vs Stevenson, where Lord Atkin developed the principle of neighborhood,
that you have to care your neighbor and Ruby she had to have duty of care so as to fall all the
rules and regulation of the load so as to avoid the road accident and protect her neighbor
Sapphire.

Ruby had to consider the proximity which was occurring between her and her neighbor Sapphire
so as to avoid road accident and protect her neighbor from physical harm, for example from the
case of HEAVEN V PENDER27, in this case the plaintiff was a workman employed by a ship
painter. The ship painter entered into the contract with the ship owner whose ship was in the
defendant’s dock for the purpose of being painted. The defendant, the dock owner supplied under
a contract with the ship owner, an ordinary stage to be slung outside the ship to facilitate in
painting the ship. The ropes by which the stage was slung had been scorched and were unfit for
use. When the plaintiff began to use the stage, the ropes broke, the stage fell, and the plaintiff
was injured. The defendant was liable because he had, or he breached the duty of care to the
plaintiff.

26
[1978]
27
(1883) QB 1 432
Therefore, Ruby failed to consider the duty of care to Sapphire and made her to get severe
injuries.

Ruby breached the duty of care because she did something which a reasonable man couldn’t do
under the circumstances. This is because she had to be carefully when passing across road
junction, which could make her pass without crashes Sapphire car. Every individual has to follow
the duty of care because its breach will make him or her fall under negligence. Ruby negligently
crosses the road without take reasonable precautions to her neighbors.

For example, in the case of GEORGE V. SKIVINGSTON [1869]28, the plaintiff purchased a
chemical compound from the defendant as a hair wash for the use of his wife. The defendant
represented it to be fit and proper to be used for washing the hair. The compound was so
negligently and improperly made. When the plaintiff’s wife applied it, she sustained injuries. The
defendant was liable because he breached the duty of care to the plaintiff wife and made her lose
her hair.

Therefore, Ruby breached the duty of care to the Sapphire and made her get injuries.

Ruby caused the damage to Sapphire who suffer injury, because of the road accident. And in
negligence the plaintiff will have to show two things as follows, it is the defendant who caused
that damage, and in our scenario, Ruby is the one who caused the damage or injury to the
Sapphire and also to prove the issue of foreseeability of the harm, and also Ruby foresees the
injury to Sapphire.

For example, in the case of LANGRIDGE V. LEVY [1837]29, in this case the father of the
plaintiff brought from the defendant a gun telling him that it was to be used by himself and his
sons. The defendant falsely represented to him that the gun was safe, good and secure. The gun
turned out to be unsafe, ill manufactured and dangerous and while being used by the plaintiff, it
exploded and injured the plaintiff. The defendant was liable because he caused damage to the
plaintiff.

3.2 WHETHER RUBY HAS LIABILITY FOR NEGLIGENCE ACTION TO

PSYCHIATRIC INJURIES TOWARD TOM

28
[1869]
29
[1837]
From the scenario since Ruby caused injury to Sapphire were Sapphire’s husband (Tom) hears
the crash and rushes to the scene of the accident; he is so shocked at seeing Sapphire’s injuries
that he shortly afterwards develops a psychiatric illness. Tom is a secondary victim who has
suffered psychiatric injury as a result of witnessing an accident the immediately aftermath. Thus,
for him to succeed should have to provide for the medical evidence that he has suffered serious
psychiatric injury, such of the post traumatic stress disorder.

As in the case Hinz v. Berry30 where the claimant, her husband and children were travelling in a
van when they stop at the lay bay, the claimant went on the other side of the road with one of
their children to pick flowers, she saw a car driving into the van where she had left her husband
and children. She witnessed the accident in which the husband died and some of her children.
Thus, the claimant suffered psychiatric injury and sued the defendant. The claimant succeeded
for damages of psychiatric injury as a result of physical injury.

3.3 POSSIBLE DEFENCE AVAILABLE FOR RUBY’S LIABILITY

However, Ruby can raise a defense of contributory negligence as a partial defense which arises
where the plaintiff has suffered damage through the negligence of the defendant but has
contributed to that damage by her own negligence. Ruby can defend herself that Sapphire failed
to take care of her own safety in respect to the risk to which the Ruby’s conduct exposed her. As
in the case of Davies v. Swam Motor Co. ltd31 where there was an incident where a collector
stood on the steps of the house while trying to jump into the vehicle, they were using to collect
refuse. He failed to step on it and got injured seriously.

Thus, Sapphire’s negligence would not have caused damage, but it has contributed to it, which
made the damage even worse.

As it was in the case of Froome v. Butcher32 where the plaintiff was in involved in the car
accident but at the time of the accident did not wear a seat belt. The damages were reduced by
25% and special treatment of certain categories of individuals, like rescuers and those people put
in agony of moments to act.

4.0. CONCLUSION
30
[1965]
31
[1949] KB 291
32
[1976]
Therefore, so long as the law of negligence is concern for the plaintiff to succeed has to show
and prove the essential ingredients of negligence action has to prove that there was a legal duty
owed to him, the breach of that duty and the damage caused by the breach of that duty. Thus
according to the scenario above Ruby’s liability to negligence in law of tort is inevitable.

5.0. REFERENCES

BOOKS

Prof. Binamungu. (2002). “Law of Tort in Tanzania” Researcher and publication department.

C, Roggers & K, Khalid. (2015). “General Principles of Law of Tort” bita byesiroc home library.

E, Catheline & F, Quinn. (2009). “Law of Tort” British Library Cataloguing-in-Publication Data.

CASES

Donoghue vs stevenson. (1932)

Rangridge vs Levy. (1837) 2m

Heaven v. Pender (1883) 11qbd 503

George vs skivingtorn. (1869)

Burnett v. Chelsea & kensington hospital management committee (1978)

Caparo v. Dickman [1990]

Home office v. Dorset yatch co. [1970]

Froome v. Butcher (1976)

Hinz v. Berry (1965)

Davies v. Swam Motor Co. ltd (1949) QB

B. A. Minga v. Mwananchi Total Services station (1972) HCD

In Michael Mwamiko v. Angetile Mwanjela Civil Case No. 7 of 1999 in the High Court of Dar es
salaam (Unreported)
Theodoclina Alphaxard v. Medical Officer in charge of Nkinga Hospital [1992] TLR 235

Coca Kwanza Limited v. Bilson Mbezibwa, (PC) Civ. Appeal. No. 33 of 1999 at Dodoma
(Unreported)