In his book, Winfield and Jolowicz on Torts, by Rogers W.V.H 13th edition, Sweet and Maxwell, the learned author defined negligence as:
“Negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff. Thus its ingredients are: (a) a legal duty on the part of A towards B to exercise care in such conduct of A as falls within the scope of the duty; (b) breach of that duty; (c) consequential damage to B…”
The torts of professional negligence is not well developed in our Ghanaian jurisprudence like other common law countries. Over the years, our courts have dealt with few numbers of cases on this subject. Because of the dearth of authorities in our law reports, most of the decided cases on this subject has been decided on the Bolam v Friern Hospital Management Committee principle, (popularly known as the Bolam Test).
The author is of the view that the Bolam Test should be sparingly applied especially in situations where it will lead to injustice under the guise of judicial precedent. Holding on too much to precedent even where it will lead to injustice is likely to infringe on one’s fundamental human rights.
In London Transport Executive v Betts, Lord denning dissented in two cases in the House of Lords in 1959 and 1960 on the question of precedent. In the first case referred to supra he said:
“it seems to me that when a particular precedent, even in your Lordship’s House, comes into conflict with a fundamental principle, also of your Lordship’s House, then the fundamental principle must prevail.
This must at least be true when on the one hand, the particular precedent leads to absurdity or injustice, and on the other hand, the fundamental principle leads to consistency and fairness. It would, I think, be a great mistake to cling too closely to a particular precedent at the expense of fundamental principle.”
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