Fault: Discuss negligence Flashcards
I) Define negligence ii) Explain the nature and test for negligence iii) Distinguish between negligence and intention and explain if they can overlap iiii) Distinguish between ordinary and gross negligence v) Explain the difference between negligence and omission
What is the definition of negligence?
Negligence is the blameworthiness attaching to the conduct of an accountable person if the reasonable man in his position would have acted differently – and the reasonable man would have acted differently if the wrongful causing of damage would have been foreseen and prevented by the reasonable man.
How does the law test for negligence?
The reasonable person test is used to determine whether a person acted negligently.
In which case were the requirements of negligence stated?
In Kruger v Coetzee
What are the requirements of Negligence?
From the case Kruger v Coetzee:
For the purposes of liability culpa arises if:
(a) a diligens paterfamilias in the defendant’s position-
(i) would foresee the reasonable possibility of his
conduct injuring another in his person or property
and causing him patrimonial loss, and
(ii) would take reasonable steps to guard against such
an incident
(b) the defendant failed to take such steps.
Can negligence and intention overlap?
Van der Merwe and Olivier’s definition of negligence suggests that negligence may only exist in respect of a consequence if a wrongdoer has not intentionally caused that consequence. Therefore, intention an negligence are mutually exclusive.
What was held in the S v Ngubane case?
The Appalent Devision held that intent and negligence may be present simultaneously. The court answered the question of whether someone who on the evidence has intentionally killed another may be convicted of culpable homicide and not only of murder.
“where dolus is present, so too is culpa”
according to the law, who and what is a reasonable person?
2 Factors:
▫A reasonable person is merely a fictitious person, a concept created by the law to have a workable objective norm for conduct in society.
▫The reasonable person is not exceptionally gifted, careful or developed person BUT is not underdeveloped, reckless or with no caution.
Which test is used to test children in a case where the child is the wrongdoer?
Reasonable Person Test
