The “neighbour principle”; My Switzerland rush-hour experience and holding GHG Emitters accountable in negligence.

Last month, I joined the running bandwagon. I think I deserve a Swiss Bronze medal of sorts because I made my running debut on the Swiss soil besides it being a cross-country marathon. For three weeks my days started with a simple sometimes serious sprint to either the bus or train station and so was the rest of the day. The gold medal should be saved for the people of Berne, they are un disputed champions when it comes to running in train terminals.

It’s not because I don’t run, I can actually run Usain Bolt style if am being chased or when it’s threatening to rain. Am also in the know of the benefits of running; besides the obvious health related ones, I could also pass off as urbane and fashionable to a reasonable extent.

In Uganda, you really have to be very careful if you decide to run on the streets of Kampala. If you are lucky enough not to be apprehended after being mistaken to be a criminal, the whole street will run with you just in case what is chasing you may have common implications. Perhaps that’s why I developed cold feet for running.

While on the train from Berne to Zurich of course after 10 minutes or so of cooling off from the “marathon”, my eyes are glued on the window to catch another glimpse of the nuclear station near our train. After the train dashing past the nuclear station, the thoughts of the next lecture I  am about to give on sustainable development and climate change in Uganda get mixed up with the tort (negligence) lectures I received in the law school.

There is this case of Donoghue v Stevenson [1932] UKHL 100 I learned in the law school also known as the “snail in the bottle “case. It forms the foundation of the Common law principle of negligence. In the case, a lady drank a ginger beer in a café whose bottle contained a dead snail thereafter fell sick and sued.  This fundamental case at that time went up to the court of last resort in the UK the House of Lords and the most important question was about the duty of care which Lord Atkins explained basing on the ” neighbour principle”.

He stated, “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 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”.

Whereas it is prudent to commend the Swiss effort towards creating “clean energy”, the Fukushima disaster should be able to awaken us. While attending the YES (Youth Encounter for Sustainability) in Naivasha Kenya, Dr. Roger Baud illustrated the possibility of efforts employed in promoting sustainability becoming counterproductive and perhaps more deadly than the problem which is initially meant to be solved. I believe Fukushima suits well in that picture.

The IPCC REPORT released recently states that humans are the dominant cause of global warming. The lawyer in me is convinced that “snail in the bottle “case could help bring the biggest emitters of GHGs to courts of law for negligence and failing the neighbor principle test in the aftermath of floods or droughts.

By Mugisha Moses Mugisha_kamera