Nationals propagating the position that the State should be held responsible for the recent tragedy that took the lives of two of our national footballers and caused severe injury to another have been summarily accused, tried and convicted in the media on a charge of playing politics with what the accusers in their wisdom believe to be no more than a natural disaster caused by excessively heavy downpours of rain. That is as unfortunate, as it is lamentable. The law of Negligence would not rush to such a judgement.

At work here are two views, originating in two opposing principles of law. One view may be called the "Negligence" view and, the other, the "Act of God" view. The "Negligence" view argues that Government did not do anything at all, or did not do enough, to make the public road at the point of the disaster, safe for motor vehicular traffic. It was, therefore, negligent. In that event, it must be held liable in damages for the consequential fatal, as well as non-fatal, personal injuries suffered. That is the essence of a case for negligence.

By contrast, the "Act of God" view is that the root cause of the death of the two footballers and the hospitalization of the third was the collapse of the road. And that was caused by the heavy rains, an act of God, over which the human element, including the Government of the day, exercises no control. The State, therefore, is not to be held responsible for the tragic event. And, in these circumstances, it ought not to be held liable for consequential loss or damage. "Act of God" is a defence to a claim in negligence.

If a cause of action for negligence is to succeed, the person claiming damages (the Claimant) must prove three things. These are firstly, that the party against whom the claim is made (the Defendant) owed a duty of care to the Claimant. Secondly, that the Defendant breached that duty. And, thirdly, that the injury suffered and the harm caused to the Claimant came about as a result of the breach.

It is an accepted principle of the law that a duty of care will be owed whenever and wherever it can be foreseen that, if the Defendant fails to exercise due care, the Claimant will suffer harm. Among the more common examples, the driver of a vehicle on a public road owes a duty to other drivers on the road, to pedestrians and to persons occupying houses along the public road, to drive carefully. Kubuli owes a duty of care to consumers to ensure for example, that a part of a cockroach is not found in a bottle of its beer. And Bello's owes a duty of care to its workers to provide adequate equipment and safe working conditions. The list of such duty situations is not closed. In fact, the situations continue to increase. But, for reasons of public policy, the Courts will exclude a particular situation from that list for fear that, otherwise, the courts would find themselves flooded with causes of action for negligence.

Where a duty of care is found to be owed, the next issue that falls for the Court's consideration is whether or not that duty of care has been breached. That is to say, whether or not the "standard of care" was adequate to forestall the likelihood of harm coming to the Claimant. And, in making that determination, the Court is to consider "whether or not a reasonable man, placed in the position of the Defendant, would have acted as the Defendant did."

As to how a "reasonable man" would have acted in the circumstances faced by the Defendant, a Court may take account of what in the language of the law is referred to as the "risk factor". This comprises four elements. First, how likely was it that the harm would have occurred? Secondly, how serious was the injury that the Defendant risked? Thirdly, how important or useful was what the Defendant did, when balanced against what was not done. And, lastly, "how costly and practicable it would have been for the Defendant to have taken precautions to eliminate or minimize the risk?"

Who is this "reasonable man" who is so critical to a determination of whether or not a duty of care is breached? In English case law, he has been described variously as "the man on the Clapham omnibus". He "lacks the courage of Achilles, the wisdom of Ulysses or the strength of Hercules". Nor has he "the prophetic vision of a clairvoyant". He is a reasonable man but he is neither a perfect citizen nor a "paragon of circumspection." The reasonable man "will not anticipate folly in all its forms but he never puts out of consideration the teaching of experience and so will guard against the negligence of others when experience shows such negligence to be common." In the Dominica and Caribbean contexts, the reasonable man may be taken to be the "man-on-the-street", the "average citizen" or the "ordinary man". Clearly, the "reasonable man" is an elastic term which defies precise definition. But it is for the Judge to decide what "reasonable" means.

If it is established that the Defendant breached the duty of care which it owed to the Claimant, the Court must go on to find that the Claimant suffered damage for which the Defendant may be held to be liable in law. Here two critical questions need to be answered. One, did the Defendant's breach of duty, in fact, cause the damage. And, if so, whether or not the damage caused was not too remote in law. In other words, whether or not a reasonable man would have foreseen such damage as arising from the breach of the duty of care. The damage will be held to be too remote if a reasonable man would not have foreseen it. Quite obviously, a Defendant will not be held liable where, following a breach of his duty of care, an event completely independent of his control takes place which, in fact, caused the harm. That is so because the intervening event breaks the "chain of causation" leading from the Defendant's breach of duty to the occurrence of the harm.

Now, what of the application of these principles of law to the event under consideration? If the matter reaches the Court, might the State be held liable in damages to the hospitalized victim and the estate of the two deceased? Here, a number of critical questions need to be answered. The first is this. Taking account of public policy considerations, does the State (represented by the Government) owe a duty of care to users of public roads to ensure that these roads are built and maintained in a way that makes them capable at all times of withstanding the impact of the heaviest possible downpours of rain? If the answer to this question is "No", that is the end of the matter. The State will not be held liable for the deaths of the two national footballers and the severe injury suffered by the third or for any other consequential loss or damage.

But, if the question is answered in the affirmative, then, evidence in respect of breach of that duty and the cause of the deaths and injury must be ascertained. For instance, as to breach of duty, the question arises: Would the reasonable man, put in the position of the Ministry responsible for road construction and maintenance, take account of the possibility that excessive downpours of rain might occur from time to time in the area where the road collapsed? Would the reasonable man have foreseen that there was a real risk of the road collapsing? Of course, to answer this, would require answers to further questions. Were there any prior signs of disturbance of the road's surface? Or, was the total collapse last week the first incident of damage to the road? If there was disturbance before the day of total collapse, what did Government do, if anything, by way of precautionary action? If it did, would such action be considered adequate? If Government, in fact, did very little or nothing, did it, before deciding on inaction, consider how costly ad how practicable it would be to take precautionary measures to make the road safe for vehicular traffic? In other words, did the State exercise the standard of care required by law?

As to causation, evidence needs to be obtained as to the following. What, in the final analysis, caused injury and death to the affected footballers? Would fingers be pointed to the collapse of the road? Or, would the excessive rains be identified as the cause? Further, would the reasonable man, placed in the shoes of the Ministry of Works, have foreseen that the one or the other was likely to cause the resulting harm and injury?

If causation is established, the question as to the liability of the State for damages would arise. And the critical issue would be whether or not the Court might be persuaded by a defence that the event did, in fact, constitute, or originate in, an act of God.

Next Week: Acts of God

Copyright © William Para Riviere, April 2013