FUNCTIONAL
LAW
INTRODUCTION TO TORTS (NEGLIGENCE AND TRESPASS TO LAND)
NEGLIGENCE
1. Definition of Negligence:
• Negligence is a legal concept that holds individuals or entities
responsible for their failure to exercise reasonable care,
resulting in harm or injury to others.
2. Elements of Negligence:
• Duty of Care: The defendant must owe a legal duty of care
towards the plaintiff.
• Breach of Duty: The defendant must have breached the duty
of care by failing to meet the standard of reasonable care.
• Causation: There must be a causal connection between the
defendant's breach of duty and the plaintiff's harm.
• Damages: The plaintiff must have suffered actual harm or
damages as a result of the defendant's negligence.
3. Duty of Care:
• The duty of care is a legal obligation to act reasonably and avoid actions or omissions
that could foreseeably harm others.
• The court uses the "reasonable person" standard to determine if a duty of care exists
in a particular situation.
• Example: A driver owes a duty of care to other drivers, pedestrians, and passengers
on the road to drive safely and obey traffic laws.
4. Standard of Reasonable Care:
• The defendant's conduct is measured against the standard of a reasonable person in
similar circumstances.
• Factors considered include the foreseeability of harm, the magnitude of the risk, the
likelihood of harm, and the social utility of the defendant's conduct.
5. Breach of Duty:
• Breach of duty occurs when the defendant fails to meet the standard of care
expected in a particular situation.
• The standard of care is determined by what a reasonable person would do in similar
circumstances.
• Factors that may be considered in assessing breach of duty include the level of
expertise or special knowledge of the defendant, any statutory duties or regulations
applicable, and the foreseeability of harm.
• Example: A driver who runs a red light and causes a collision breaches their duty of
care by failing to adhere to traffic laws and exercise caution
6. Causation:
• The plaintiff must establish both "cause in fact" (the defendant's negligence was a
factual cause of the harm) and "proximate cause" (the harm was a foreseeable consequence
of the defendant's actions).
• Example: A distracted driver rear-ends another vehicle, causing injuries to the
occupants. The distracted driver's actions were the cause in fact of the collision and
subsequent harm
7. Damages:
• Damages are one of the essential elements that must be proven in a negligence
claim.
• In a negligence case, the plaintiff must demonstrate that they have suffered actual harm
or damage as a result of the defendant's negligent actions or omissions.
• The damages element ensures that there is a tangible loss or injury caused by the
defendant's breach of duty.
• Example: In a slip and fall case, the plaintiff suffers a broken arm due to a wet floor in a
store. The broken arm constitutes damages resulting from the defendant's negligence.
8. Defenses to Negligence:
• Contributory Negligence: If the plaintiff's own negligence contributed to their harm, it
may reduce or bar their recovery.
Example: In a car accident case, the plaintiff was texting while driving, contributing to
the collision. As a result, the court may assign a percentage of fault to the plaintiff and
reduce their recoverable damages accordingly.
In Ghana, the law on contributory negligence is to be found in Part I of the Civil Liability
Act, 1963 (Act 176). Section 1(1) of Act 176 provides as follows:
a. "Where any person suffers damage as the result partly of the fault of any other person
and partly of his own fault or the fault of someone for whom he is responsible (in this part
referred to as contributory negligence), a claim in respect of that damage shall not be
defeated by reason of the fault of the person suffering damage, but the damages
recoverable in respect thereof shall be reduced to such extent as the court thinks just and
equitable having regard to the plaintiffs share in the responsibility for the damage:
Provided that –
o if, having regard to all the circumstances of the case, it is not possible to establish
different degrees of fault, the liability shall be apportioned equally;
o this section shall not operate to defeat any defence arising under a contract;
o where any contract or enactment providing for the limitation of liability is applicable to
the claim, the amount of damages recoverable by the plaintiff by virtue of this section
shall not exceed the maximum limit so applicable.“
o Example: In a personal injury case, the court determines that the plaintiff is 20%
responsible for their injuries, while the defendant is 80% responsible. The damages awarded
to the plaintiff will be reduced by their percentage of fault.
• Assumption of Risk (volenti non fit injuria): If the plaintiff voluntarily assumed the
known risks associated with an activity, it may limit or eliminate the defendant's liability.
Example: A person participates in an extreme sports activity and signs a waiver
acknowledging the risks involved. If the person gets injured during the activity, they
may be barred from seeking compensation from the organizer due to assuming the
known risks.
9. Remedy:
• The primary remedy for negligence is monetary damages, which aim to compensate
the plaintiff for their losses or injuries.
10.Application to Various Situations:
• Negligence principles apply to various contexts, including car accidents, medical
malpractice, premises liability, product liability, and professional negligence.
