JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY

SCHOOL OF LAW, KAREN

MERCY WANJIRU WAMBUGU
YEAR 1, SEMESTER 2
LAW OF TORT II ASSIGNMENT
Negligence
Negligence is a failure to exercise the care that a reasonable person would exercise in
circumstances. The damage is caused by carelessness.
In this case Ouko is liable for negligence because he carelessly left an old kerosene lamp burning in
his garden where the strong wind could easily cause a fire and accelerate it.
Oukos careless act caused damage to Kilonzos home, which was 200meters away therefore Ouko
was in breach of legal duty of care.
Duty of care
A duty exists to those within a foreseeable area of danger example in the case of Donoghue v
Stevenson This case established the neighbour test, according to Lord Atkin, One must take
reasonable care to avoid acts or omissions which one can reasonably foresee would likely injure
their neighbour .A neighbour is a person who is closely and directly affected by ones act that
ought to reasonably have them in contemplation as being so affected when they are directing their
mind to the acts or omissions which are called in question.
In Oukos case the damage caused was foreseeably and could have been prevented from
happening according to the neighbour principle test of physical proximity and reasonable
foreseeability has to be proven. In this case there was
A sufficient relationship of proximity existing between Ouko and Kilonzo since they lived in the
same neighbourhood hence Oukos carelessness was likely to cause damage to the Kilonzos home.
He was also liable for causing a general panic that caused Otieno, the domestic worker, to drop the
rare expensive glasses that he was holding it was foreseeable that there would be damage caused
regardless of the manner it happened. In the case of Re Polemis & Furness Withy & Company Ltd.
[1921] Scrutton LJ said that for an act to be held as negligent, it is crucial to determine whether
any reasonable person would foresee that the act would cause damage; if he would not, the act is
not negligent. But if the act would or might probably cause damage, the fact that the damage
causes is not the exact kind of damage one would expect is immaterial, so long as the damage is
in fact directly traceable to the negligent act also reasonable foreseeability does not mean that the
defendant has to be able to identify a particular individual who might foreseeably be affected by
their actions; it is enough that the claimant is part of a category of people who might foreseeably
be affected.
Ouko isnt liable for Waswas injury and demise, although he was injured in the process by broken
glass that was as a result of panic caused by the fire, Ouko could not have foreseen the accident
between Otieno and Waswa neither would a reasonable person in The Wagon Mound (No. 1)
[1961] case The Privy Council replaced the direct consequence test with reasonable foreseeability
test.
Viscount Simonds held, A man must be considered to be responsible for the probable
consequences of his act, also a man should be responsible for the necessary or probable
consequences because it is judged by the standard of the reasonable man that he ought to have
foreseen them. The connections between Waswa and Ouko is remote since there was another
person and an unknown source of fire that intervened hence breaking the chain of causation
therefore its no longer a proximate cause .Otieno intervened hence superseded Ouko clearing him
from taking responsibility for harm caused to Waswa.
Conclusion

In conclusion, Ouko is liable for negligence that caused damages to Kilonzo and the general panic
that ensued.