Different concepts of duty Flashcards
Position of Ewels
In cases regarding the wrongfulness of an omission, you had to establish there was a legal duty to prevent the harm-legal duty approach
Danger in adopting this approach: that it can lead to confusion due to the old approach
Where does the old approach come from?
English law: Tort of Negligence. The courts say you have to establish whether there was a duty of care on the defendant to prevent the harm that ensued. The legal duty approach comes from English law in that our courts when dealing with liability for omissions, they said the question that needs to be answered was whether or not there was a duty of care on the defendant to prevent the harm.
Union Govt v Ocean Accident: the duty of care in our law is rested upon foreseeability the test must be that of a reasonable man.
In this case it makes use of the test for negligence, thus confusing negligence with wrongfulness. SCA said not to use duty of care terminology.
What is the practical implications of the confusion?
- Confusion often makes no difference to the outcome of the case
- Confusion may result in wrongfulness being ignored
- Confusion may result in negligence being ignored
Confusion often makes no difference to the outcome of case, explain:
Transvaal v Van der Merwe: SCA confused wrongfulness with negligence. To establish wrongfulness, they employed the test for negligence, specifically the guidelines that we use when we test for preventability of harm (what was the risk of harm if a fire broke out; if the risk materialised, what would be the extent of the harm; cost implications of imposing liability for the defendant; social utility in not building a fire break). The court used these guidelines to test for wrongfulness: because the costs outweighed the risk of harm, there was no legal duty and therefore no wrongfulness
Gouda Boerdery v Transnet: Fire that broke out on Transnet’s property spread to a farm owned by Gouda because they failed to create fire breaks. When the court tested for wrongfulness, it followed the correct approach. Dealt first with negligence and said the question was whether or not Transnet was negligent in allowing the fire to develop, and secondly in failing to build fire breaks. Applied Kruger v Coetzee and when it got to preventability it looked at risk of harm, extent of harm, costs involved, social utility. Court concluded that the costs outweighed the risk of harm and for that reason it could not be said that Transnet was negligent. The correct approach was followed, but did not make a practical difference on the outcome of the case
Confusion may result in wrongfulness being ignored
Para 9 & 10 Bakkerud: [9] Any attempt to decide whether a particular omission will potentially ground liability by merely measuring it against the standard of conduct to be expected of a reasonable person will fail for a number of reasons. First, that test is sequentially inappropriate. It is of course the classic test for the existence of blameworthiness (culpa) in the law of delict. But the existence of culpa only becomes relevant sequentially after the situation has been identified as one in which the law of delict requires action.5 Secondly, the application of the classic test for culpa to the solution of the anterior question is calculated to produce consequences which are likely to be too burdensome for society to acquiesce in shouldering them. The hypothetical reasonable person (diligens paterfamilias) would have to be credited with a reasonable sense of ethical or moral responsibility and a propensity to act in accordance with it. To use his or her likely reaction to the situation as the yardstick by which to measure whether or not action is required by law would be tantamount to converting every reasonably perceived ethical or moral obligation to act into an obligation or duty imposed by law. But that is the very equation against which the law has thus far set its face.
[10] The instinctive reluctance of society to sanction the imposition of delictual liability on the strength of such an equation is precisely because it is apprehensive about the consequences of simplistically converting moral or ethical obligations into legal duties. It is that fear which provides the impetus for the quest by writers and the courts for a via media between the social inutility of a barren doctrine that denies liability for any omissions and the extravagance of a wholesale conversion of ethical or moral obligations into legal duties. As to the latter, society is simply not prepared to live under so potentially demanding and onerous a legal regime in the area of omissions in the law of delict
The danger with confusing wrongfulness with negligence is that you try to answer the question of whether or not there was a legal duty by asking what the reasonable person would have done)
The reasonable person would almost always prevent harm; so the reasonable person standard almost always results in finding that there was a legal duty. Undermines the function of the wrongfulness enquiry which is to act as a limit on liability
Confusion might result in negligence being ignored
Local Transitional Council of Delmas v Boshoff: Court had to answer whether there was a legal duty to prevent harm – under wrongfulness. Court said it was foreseeable that the harm might have ensued; because the court thought it had dealt with the foreseeability question it probably thought it had dealt with negligence and didn’t deal with negligence at all.
SCA held that the trail court, when looking at legal duty, held that the harm was foreseeable but never conducted a separate enquiry into negligence and if they had they would have come to a different conclusion altogether. If negligence had been properly investigated, there would have been a different conclusion
What is the current position with regards to reasonable foreseeability?
Those courts that make use of the duty of care terminology place considerable attention on the foreseeability of harm. They consider foreseeability under negligence and wrongfulness; no logical reason why we have to determine foreseeability under two different elements of delict.
SCA decision in Premier WC v Faircape: court used duty of care approach referred to English law, but also used the old approach in SA law of legal duty to prevent harm. First dealt with negligence, and dealt with foreseeability and preventability. Under wrongfulness, used the old approach (duty of care) under which foreseeability is a significant consideration. Lewis said we investigate into negligence and look at foreseeability of harm, and under wrongfulness it must be established again: there will necessarily be a repetition of the enquiry into foreseeability. This case can be criticised because it doesn’t explain why we should test for foreseeability under both; doesn’t explain if it’s exactly the same enquiry; what the benefits would be
Gouda Boerdery: also dealt with wrongfulness and negligence. Under wrongfulness, the court referred to the legal question ‘was there a legal duty to prevent harm’ and said that one of the policy considerations to be taken into account was foreseeability; eventually held that there was wrongfulness. It then had a separate enquiry into negligence, where it said they didn’t have to enquire into foreseeability again because it was already dealt with under wrongfulness. Once again not clear what the benefit of this approach would be, when you think about the fact that negligence and wrongfulness test for completely different things
Telematrix said that the court should be very careful to all the law of delict correctly, and they shouldn’t make these kinds of statements: must ensure that the wrongfulness and negligence enquiry be kept entirely separate. Didn’t give the tools with which we should keep the elements separate. In the SCA, the court sought to introduce such a tool: to avoid further confusion, we should say that foreseeability of harm is no longer a consideration when it comes to wrongfulness. We have other considerations on which wrongfulness will be decided. Investigate foreseeability under negligence. No repetition of the same enquiry; no mix of the two elements
In Country Cloud, the CC did not approve the ruling of the SCA in Telematrix, so for the time being, foreseeability is still a consideration under wrongfulness in terms of the new approach
- Foreseeability is considered under legal causation, negligence and wrongfulness
- Creates the possibility of courts confusing negligence with wrongfulness
- Creates the possibility of courts thinking they’ve dealt with negligence once they’ve done foreseeability under wrongfulness
