BACK TO THE BASICS: THE NEIGHBOUR PRINCIPLE AND ITS LIMITATIONS – THE CASE OF GILBERT CHIKOTI v ZESCO LIMITED SCZ/8/311/2013*

3.0 Issues for determination by the Supreme Court

The question for determination by the Supreme Court was whether Zesco could indeed be said to have been negligent on the premise that the precautions pertaining to protective devices, wiring and their capacities were evaluated at least within twelve (12) years of the proceedings and certified to be up to scratch by Zesco. It was the appellant’s further argument that liability in negligence arose against Zesco from Zesco’s failure to give sufficient notice and warning that a power surge was a minimum requirement and also, Zesco’s failure to carry out regular inspections on its line cables. In other words, the appellant’s contended that the incineration of his house was a direct result of the negligent conduct of Zesco because it failed or neglected to notify him of the need to install a power surge protector mechanism and to Zesco’s failure to carry out regular inspections of its power lines.

4.0 The Neighbour principle: Donoghue v Stevenson (1932) AC 562

In determining this appeal, it was imperative that the neighbour principle as espoused in the case of Donoghue v Stevenson was satisfied. Lord Atkin stated this principle as follows:

The rule that you must love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, ‘Who is my neighbour?’ receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be: persons who are so closely and directly be affected by my act that I 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.

Patent in Lord Atkin’s words is the principle of the duty of care. In order for one to succeed in an action for negligence a plaintiff, ought to show that:

1. he was owed a duty of care;
2. that the duty was breached; and
3. that as a consequence he or she has suffered loss, harm or damage due to the alleged breach.

Today, in addition to the aforementioned elements that ought to be satisfied by a plaintiff, further requirements as laid down by Lord Bridge in Caparo Industries v Dickman [1990] 1 All ER 568 must be met before a duty of care can be held to exist. His Lordship observed as follows:

What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.

Therefore, in order for the court to find for the appellant in Gilbert Chikoti, it was incumbent upon him to also establish that:

1. the damage was foreseeable;
2. there was sufficient proximity between himself and the power utility company; and
3. that it would be fair, just and reasonable to impose such a duty on the power utility company.