Chapter 11- Negligence

Question 1

What is the nature of the test for negligence?

Answer 1

The test for negligence is objective, except for a few less important exceptions. As we have seen with intention, the test is subjective, since we have considered what Thabo’s actual knowledge was or what he actually envisaged the facts of the law to be. When we describe the test for negligence as objective, we mean that we have to measure Thabo’s conduct against an objective standard.. This objective standard is that which a reasonable person would have known, foreseen, or done in the same circumstance.

Question 2

Define negligence

Answer 2

A person’s conduct is negligent if:

1. A reasonable person in the same circumstances would have foreseen the possibility that particular circumstance might exist, or that his conduct might bring about the particular result.
2. A reasonable person would have taken steps to guard against such possibility
3. The conduct of the person whose negligence has to be determined differed from the conduct expected of a reasonable person.

Question 3

What is the abbreviated way of referring o negligence?

Answer 3

An abbreviated way of referring to negligence is simply to say that the person concerned did not conduct himself as a reasonable person would have conducted himself in the same circumstances or, if explained briefly, that a person acted unreasonably.

Question 4

Discuss the concept of a reasonable person.

Answer 4

The expression “ reasonable person” appears both in the first and second leg of the definition of negligence. Before considering the first two legs of the definition, it is necessary to explain what is meant by a reasonable person.

1. A reasonable person is merely a fictitious person that the law invents to personify the object standard of reasonable conduct that the law sets in order to determine negligence.
2. In legal literature, the reasonable person is often described as the bonus parterfamilias or diligens paterfamilias. These expressions are derived from Roman law. Literally, they mean the diligent father of the family , but in practice, this expression is synonymous with a reasonable person.
3. In the past, the expression reasonable man was usually used in legal literature, instead of reasonable person.
4. By reasonable person, we mean an ordinary, normal, or average person.
5. The reasonable-person concept embodies an objective criterion.
6. A reasonable person is not a perfectly programmed automaton that can make a mistake. He remains an ordinary flesh-and-blood human being whose reactions are subject to the limitations of human nature.

Question 5

Explain reasonable foreseeability

Answer 5

1. The courts sometimes ask whether a reasonable person would have foreseen the possibility, and on other occasions, whether Thabo ought reasonably to have foreseen the possibility.
2. What must be foreseeable is the possibility that the result may ensue, and not the likelihood.
3. The test is whether the reasonable person is in the same circumstances as those in which Thabo found himself
4. Intention must relate not only to the act, but also to all the circumstances and consequences set out in the definitional elements, as well as to the unlawfulness. The same principle applies to negligence.

Question 6

What are the steps taken by a reasonable person to avoid the result ensuing?

Answer 6

In deciding whether a reasonable person would have taken steps to guard against the result ensuing, it may be necessary to balance the social utility of Thabo’s conduct against the magnitude of the risk of damage created by his conduct.

Question 7

Explain negligence in respect of a circumstance

Answer 7

Thabo is negligent in respect of a circumstance if a reasonable person in the same circumstances would have foreseen the possibility that the circumstance could exist.

Question 8

The test of negligence is subjective under which circumstances?

Answer 8

1. The negligence of children who, despite their youth, have criminal capacity, ought to be determined, we submit, by inquiring what the reasonable child would have done or foreseen in the same circumstances.
2. In the case of experts
3. If Thabo happens to have knowledge of a certain matter that is superior to the knowledge that a reasonable person would have had of the matter, he cannot expect a court to determine his negligence by referring to the inferior knowledge of the reasonable person.