DEVELOPMENT OF THE LAW OF NEGLIGENCE

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Then to judge proceeded to examine what the authorities had to say: • The most natural requirement would be that expressly or by implication from the circumstances the speaker or writer has undertaken some responsibility .... It must now be taken that Derry v. Peek did not establish any universal rule that in the absence of contract an innocent but negligent misrepresentation cannot give rise to an action.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • But as it is shown in this House in Nocton v. Lord Ashburton, that it is too much widely stated: • “To found an action for damages there must be a contract and breach and fraud” (Derry v. Peek). We cannot therefore accept as accurate the numerous statements to that effect in cases between 1889 and 1914 and we now determine the extent of the exceptions to that rule.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Cases in which besides that obligation arising from honesty the breach may give rise to damages: • cases where a person within whose special province it lay to know a particular fault has given an erroneous answer to an inquiry made with regard to it by a person desirous of ascertaining the fact for the purpose of determining his course. • “Constructive fraud” • -”breach of special duty” (pp. 581-582).

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Lord Morris of Barthoy-Gest had the following to say: • Quite apart from employment or contract there may be circumstances in which a duty to exercise care will arise if a service is voluntarily undertaken. • A medical doctor may unexpectedly come across an unconscious man, who is a complete stranger to him, and who is in urgent need of skilled attention: If the medical man, following the fine tradition of his profession, proceeds to treat the unconscious man he must exercise reasonable skill and care in doing so (p.589).

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • In the case of a banker the judge said: • If someone who was not a customer of a bank made a formal approach to the bank with a definite request that the bank would give him deliberate advise as to certain financial matters of a nature with which the bank ordinarily dealt with the bank would be under no obligation to accede to the request: if however they undertook, though gratuitously, to give deliberate advise they would be under a duty to exercise reasonable care in doing it (p. 589).

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • There can be no negligence unless there is a duty but that duty may arise in many ways: • There may be duties owed to the World at large: alterum non laedere (not to injure another). • There may be duties arising from contract. • There may be duties arising from a relationship without the intervention of contract in the ordinary sense of the term, such as duties of a trustee to his cestui que trust (beneficiary of the trust) or of a guardian to his ward (p. 593).

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • On someone who possesses special skill: • My Lords I consider that it follows and that it should not be regarded as settled that, if someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies on such skill, a duty of care will arise. • The fact that the service is to be given by means of, or by the instrumentality of, words can make no difference.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Furthermore, if in a sphere in which a person is so placed that others could reasonably rely on his judgement or skill or on his ability to make careful inquiry, a person takes it on himself to give information or advise to, or allow his information or advise to, or allow his information or advise to be passed on to, another person who, as he knows or should know will place reliance on it, then a duty of care will arise (p. 594).

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Lord Hodson had the following to say: • I shall refer to certain cases which support the view that apart from what are usually called fiduciary relationships such as those between trustee and cestui que trust, solicitor and client, parent and child or guardian and ward there are other circumstances in which the law imposes a duty to be careful, which is not limited to a duty to be careful to avoid personal injury or injury to property but covers a duty to avoid inflicting pecuniary loss provided always that there is sufficiently close relationship to give rise to a duty of care (p.598).

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • It is impossible to catalogue the special features which must exist for a duty of care to arise: • I do not think that it is possible to catalogue the special features which must be found to exist before the duty of care will arise in a given case, but since .... I agree ... if in a sphere where a person is not placed that others could reasonably rely on his judgement or skill or his ability to make careful inquiry such person takes it on himself to give information or advice to, or allows his information or advise to be passed on to, another person who, as he knows, or should know, will place reliance on it, then a duty of care will arise (p. 601).

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Lord Devlin on the authority of Donoghue v. Stevenson had the following to say: • I come next to Donoghue v. Stevenson. In his celebrated speech in that case Lord Atkin did two things. He stated what he described as a general conception and from that conception he formulated a specific proposition of law. In between he gave a warning “against the danger of stating propositions of law in wider terms than is necessary, lest essential factors be omitted in a wider survey and the inherent adaptability of English law be unduly restricted.”

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • What Lord Atkin called “a general conception of relations giving rise to a duty of care” is now often referred to as the principle of “proximity.” • You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. • In the eyes of the law your neighbour is a person who is so closely and directly affected by your act that you ought reasonably to have him in contemplating as being so affected w hen you are directing your mind to the acts or omissions which are called in question (p. 607).

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Then he proceeded to show what it meant for the following courts; and in particular to the case under consideration: • Now it is in my opinion a sensible application of what Lord Atkin was saying for a judge to be invited on the facts of a particular case to say whether or not there was \"proximity\" between the plaintiff and the defendant. • That would be a misuse of a general conception and it is not the way in which English law develops. • What Lord Atkin did was to use his general conception to open up a category of cases giving rise to a special duty

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • It was already clear that the law recognized the existence of such a duty in the category of articles that were dangerous in themselves. • What Donoghue v. Stevenson did may be described either as the widening of an old category or as the creating of a new and similar one. • The general conception can be used to produce other categories in the same way. An existing category grows as instances of its application multiply, until the time comes when the cell divides ( p. 607).

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • He went on to show the value of Donoghue v. Stevenson to Hedley B. v. Heller: • The real value of Donoghue v. Stevenson to the argument in this case is that it shows how the law can be developed to solve particular problems. Is the relationship between the parties in this case such that it can be brought within a category giving rise to a special duty?

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • As always in English law the first step in such an inquiry is to see how far the authorities have gone, for new categories in the law do not spring in existence over-night. • It would be surprising if the sort of problem that is created by the facts of this case had never until recently arisen in English law. • As a problem it is a by product of the doctrine of consideration. • If the respondents had made a nominal charge for the reference, the problem would not exist.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • If it were possible in English law to construct a contract without consideration, the problem would move at once out of the first and general phase into the particular; and the question would be, not whether on the facts of the case there was special relationship, but whether on the facts of the case there was a contract. • A promise given without consideration to perform a service cannot be enforced as a contract by the promisee, but if the service is in fact performed and done negligently, the promisee can recover in an action in tort (p. 608).

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Distinction is drawn between Words and Acts or Omissions • Lord Pearce had the following to say: • After quoting a passage by Lord Chancellor Viscount Haldane in Nocton v. Lord Asburton he stated inter alia: • The law of negligence has been deliberately limited in its range by the Courts' insistence that there can be no actionable negligence in vacuo without existence of some duty to the plaintiff. •

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Negligence in word creates problems different from those of negligence in act. • Words are more violable than deeds. • They travel fast and far a field. • They are used without being expended and take effect in combination with innumerable facts and other words. Yet they are dangerous and can cause vast financial damage [cites Grant v. Australia Knitting Mills] then went on to say: •

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • If the mere hearing or reading of words were held to create proximity, there might be no limit to the person to whom the speaker or writer could be liable. • Damage by negligent acts to persons or property on the other hand is more visible and obvious, its limits are more easily defined and it is with this damage that the earlier cases were more concerned. •

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • (Then the judge examines the development of the law on liability on the basis of words starting with the case of Pasley v. Freeman (1789) which laid down a duty of honesty in words to the world at large - this creating a remedy designed to protect the economic as opposed to the physical interests of the community.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • The extension was made in Derry v. Peek - a duty to use reasonable care in the preparation of the document called a valuation. • But the ratio decidendi of Derry v. Peek is said to have been wrongly applied in Le Lievre v. Gould as explained by Lord Denning LJ. in Candler v. Crane Christmas and in Nocton v. Lord Ashburton it was said that the authority of Derry v. Peek had been too much emphasized.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Commenting on the Decision of the House of Lords in Donoghue v. Stevenson Lord Pearce said: • The range of negligence in act was greatly extended in Donoghue v. Stevenson on the wide principle of the good neighbour - sic utere tuo ut alienum non laedas. • How far economic loss alone without some physical or material to support it, can afford a cause of negligence by act?

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • The House of Lords in Donoghue v. Stevenson was, in fact, dealing with negligent acts causing physical damage and the opinions cannot be read as if they were dealing with negligence in word causing economic damage. • That case can no more help in this sphere than by affording some analogy from the broad outlook which it imposed on the law relating to physical negligence (pp. 613-615). • NB: sic utere tuo ut alienum non laedas [use your own property in such a manner as not to injure that of another]

Francis Ngaire v. National Insurance Corporation, Dr. Ferdinand M. Temba PhD in [1972] HCD n. 134 OR [1973]EA 56. Law University of Dar es Salaam • A case decided by the High Court of Tanzania - tried to import the notion of negligence at the time when the Courts in East Africa were no longer bound to follow English Decisions, a period in which Insurance business was monopolised by a state created National Insurance Corporation. • The judge in this case used the doctrine of Estoppel drawn from the law of evidence to hold the corporation liable because the injured party was already time barred to sue appropriate Insurance Company.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Material facts: • The plaintiff on 15/4/68 (a) driver & mechanic) while sitting in his motor vehicle, perked on its correct side of the road, lost his arm when another vehicle owned by Mr. James Mushi and driven by his driver collided with the plaintiff's vehicle. • Subsequently the driver was charged and convicted on counts of careless driving, failing to stop after an accident, failing to report an accident, and driving a vehicle on the public road with defective steering and with defective brakes.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • The plaintiff duly file an action in the High Court against the owner of the vehicle and his driver, and not being of sufficient means was granted leave to sue in forma pauperis (as a pauper). • The plaintiff's advocate was informed by the police officer who investigated the case, that the vehicle in question had at the material time been insured by the National Insurance Corporation of Tanzania Ltd. •

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • On telephoning the Corporation through the motor claims department the plaintiffs lawyer was informed by a clerk in charge of the department, that Mr. Mushi's vehicle was in fact insured by the Corporation. • There followed correspondences between the corporation and the plaintiff's lawyer, and subsequently the plaintiff filed a claim against the owner of the vehicle Mr. Mushi and driver. • The owner's defence was that he was not liable but the driver admitted having been at fault and that at the time of the accident he was performing an official duty.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • The case came before the Former Chief Justice Georges who gave judgment in favour of the plaintiff and awarded him Shs. 50,000/= damages. • The plaintiff's lawyer attempted to secure damages from the corporation, the corporation repudiated liability. • The plaintiff duly filed an action in tort against the corporation in wrongly informing him that the vehicle of Mr. Mushi was insured by the Corporation, when in fact the vehicle was insured by the British India General Insurance Company - and at the time such information was revealed the plaintiff was already time

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Issues: • A number of interrelated issues were agreed upon. • They were as follows: • Whether Mr. Mwaikambo of the defendant Company verbally presented to the plaintiff's counsel that Mr. Mushi's vehicle was insured on the date of the accident? • Whether the defendant's letter addressed to the plaintiff's advocate represented that Mr. Mushi was their insured in respect of motor vehicle registration number TDN 518 as was alleged in the plaint? •

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Whether the defendant company by their letter addressed to the plaintiff's advocate put the plaintiff on inquiry as to the company with which the motor vehicle registration number TDN. 518 was insured at the date of the accident as alleged in the plaint? • Whether the answer to issues (1) or (2) was in the affirmative the defendant company was under the duty to the plaintiff to make representations with care? •

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • If the answer to issue No. 4 was in the affirmative, whether the defendant company made the said representations negligently and thereby committed a breach of duty? • If the answer to issue No. 5 was in the affirmative whether the plaintiff had suffered loss and damage as a result of such negligence? • If the answer to issue No. 6 was in the affirmative what relief was the plaintiffs entitled?

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Arguments by counsel for the plaintiff: • A servant or agent of the defendant did negligently drive the vehicle in question that it collided with the car of the plaintiff causing the plaintiff personal injury and resulting into the plaintiff's lose of his right arm. • That the plaintiff instituted a civil case in the High Court against the defendants and the results of the proceedings were in favour of the plaintiff being awarded damages in the sum of 50,000/=.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • That prior to the institution of proceedings the plaintiff's advocate did contact one agent of the National Insurance Corporation in the claims department. • The defendants were the sole company permitted by law to undertake the Insurance of Vehicles in Tanzania against third party risks. • The plaintiff's advocate inquired whether the vehicle that cause an accident was in fact insured by the Corporation and the against of the defendant did represent to the said advocate that the said vehicle was insured at the material date.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • That acting on the said representation, the plaintiff's advocate immediately after instituting the proceedings did notify the defendant of the institution of proceedings by a letter, no notification to any other company was made. • That later the defendant company through a letter denied that the said vehicle was insured with them at the material time of the accident and refused to satisfy the judgement as pleaded. • That the defendant company were under a duty to the plaintiff to make the statements and representations with care.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Arguments by the Counsel for the defendants: • The defendant denied that at the time of the accident, it was the sole company permitted by law to undertaken Tanzania insurance of vehicles against third party risks. • That the advocate of the plaintiff did not contact the agent of the defendant company who made the allegation that the said vehicle was at the material time insured by the defendant company. • That communication by letter to plaintiff's advocate had denied that the company was liable and therefore refused to satisfy the judgement.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • That the defendant company was under any duty to the plaintiff to make the alleged or any statements or representations, that there was no breach of the alleged duty, that the defendant was not guilty of any negligence to the plaintiff. • Holding: • Judgement entered for the plaintiff.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Ratio Decidendi: • When one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Important Remarks by Biron J (as he then was): • 1.Reacting on the answer given by the agent of the company to the advocate of the plaintiff • Mr. Chakera's version of the telephone conversation, he actually telephoned when the plaintiff called at his office enquiring on the progress of the case, was that he first of all referred to his letter of 4 March ... and enquired from Mr. Mwaikambo whether the vehicle in question was insured by the corporation. • Mr. Mwaikambo not only confirmed that it was, but asked rhetorically \"who else could have insured the vehicle\" (p. 60 also p. 63). •

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • 2.It is abundantly clear from Mr. Mwaikambo's evidence that when having obtained the file referred to by him, which he himself said was motor claims file, • Evidence: there was, I would say beyond a shadow of doubt only one letter on that file .... As this was the only letter on the file which Mr. Mwaikambo consulted, he must have known, or at least should have known, as it so explicitly stated, that the accident occurred on 15 April, and Mr. Chakera's query was in respect of that accident, Mr. Mwaikambo himself admitted that there had been no other claim brought against the vehicle (p. 62).

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • 3.In answering issues four and five the Learned Judge made reference to House of Lords decisions, which at that time were of persuasive value. • This came about due to the fact that at independence appeals no longer lay to the Privy Council from the Courts in East Africa and the Court of Appeal for East Africa in 1968 made a decision in Dodhia v. National and Grindlays Bank Ltd. [1970]EA on the rules of precedent applicable to East Africa which affected the Court's attitude towards foreign decisions.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Then quoted a remark by Lord MacMillan in Donoghue v. Stevenson, [1932]A.C. 562: • The categories of negligence are never closed. To this remark Justice Biron (as he then was) went on to say: • Although authorities have distinguished between injury or damage resulting from statements whether oral or written, and physical acts, I think, there is a divergence of view and attitude adopted by Australian Courts, and the American courts are much liberal than are the English ones, I must confess my inability to distinguish between statements and other physical acts, after all, a statement is a physical act, whether oral or written, and to quote the old adage, the pen is mightier than the sword, to which I would add, that the tongue could be equally as mischievous as the pen. •

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • However, in England the matter has now, I think, been finally settled by the House of Lords case of Hedley Byrne v. Heller & Partners [1963]2 ALL. E.R. 575. I think it is sufficient to quote the head-notes as follows: • \"If, in the ordinary course of business or professional affairs, a person seeks information or advise from another, who is not under contractual or judiciary obligation to give the information or advice, in circumstances in which a reasonable man so asked would know that he was being trusted, or that his skill or judgment was being relied on, and the person asked chooses to give the information or advice without deeply so qualifying his answer as to show that he does not accept responsibility, then the person replying accepts a legal duty to exercise such care as the circumstances require in making his reply; and for a failure to exercise that care an action for negligence will ie if damage results\" (p. 64).

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • As you might have noticed this is an \"If\" proposition not binding on the judge at all. • At the same time the judge realised that English authorities were no longer binding: • For the record I ought to add that, although English authorities are no longer binding on this court, I can sense reason for holding that the law as laid down by the House of Lords, is any different in this country, but on the contrary, I have not the slightest hesitation in holding that it is the same (p. 64 Para G).

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • But because of the seemingly inadequacy of the case law authorities, the judge based his decision more firmly by employing the doctrine of Estoppel from the Law of Evidence Act, 1967 section 123 (p. 64 Para H): • ... when a declarations made by an employee in the ordinary course of his duties his employer is liable for such a declaration (p. 64 Para 1).

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • He went on further to say: • there is a duty cast on an insurance company from whom an inquiry is made as to whether a certain vehicle is covered by that company, to exercise the utmost care and diligence to give the correct information, as a failure to do so would occasion loss and damage to the inquirer.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • I would even go further to say that the law has established a relationship between the public and insurance companies and laid a fiduciary (relationship) obligation on the part of insurance companies, to exercise all due care and diligence in giving proper and true information (p. 65 Paras D & E).

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • There was also a comment on the fact that at the time the National Insurance Corporation had a monopoly of Insurance business in Tanzania as specifically provided so by the law. • If courts did not protect the public then the corporation was likely to conduct itself in a manner injurious to the community at large.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Therefore I have not the slightest hesitation in holding that the corporation was under a duty to exercise due care and diligence in giving Mr. Chakera a true answer to his inquiry, as to whether the vehicle which was involved in the accident which caused so much damage and injury to the plaintiff was insured with the corporation at the material time.

Continue Dr. Ferdinand M. Temba PhD in Law University of Dar es Salaam • Be as it may, it is possible that Mr. Mwaikambo failed to consult the policy file and assumed that the vehicle must have been insure with the corporation, because by the insurance (Vesting of Interests and Regulation) Act, 1967, Part V, S. 13 the corporation was granted the monopoly in this country for handling such insurance (p. 65 Paras F-H).