Fault: The test for negligence

Question 1

Name and briefly explain the two legged test on which the test for negligence stands

Answer 1

1. The reasonable foreseeability- would the reasonable person in the defendant’s position foresee the reasonable possibility of his conduct injuring another and causing harm?
2. Reasonable Preventability of damage- Would the reasonable person have taken steps to prevent the damage from occurring?

Question 2

Name two legged test on which the test for negligence stands

Answer 2

1. Foreseeability

2. Preventability

Question 3

What are the two diverging views which exist on the nature of the foreseeability test?

Answer 3

1. Abstract/ Absolute approach

2. Concrete/ Relative approach

Question 4

Explain the Abstract/ Absolute approach

Answer 4

• It determines whether harm to others was in general reasonably foreseeable i.e. did his conduct create an unreasonable risk of harm to others.
• Damage in general needs to be reasonably foreseeable but not extent of damage.

Question 5

Explain the Concrete/ Relative approach

Answer 5

• A person’s conduct may only described as negligent in respect of a specific consequence i.e. a particular consequence must be reasonably foreseeable.
• Preferred view - whether the reasonable person in the position of the wrongdoer would have acted differently with reference to consequence.

Question 6

Name the application of the foreseeability test

Answer 6

The degree of probability of the manifestation of the harm.

Question 7

Name two case law applicable to foreseeability test

Answer 7

1. Bolton v Stone- cricket ball

2. Stratton v Spoornet - 8 year old burns when climbed electric pylon and touched cables.

Question 8

Name and Explain the 4 factors relevant to the preventability leg of the test for negligence which are taken into account in case law.

Answer 8

1. Nature and extent of the risk- the wrongdoer is negligent if he does not take steps to prevent a harm.
2. Seriousness of damage
   • Lamagundi sheetmetal v Basson
3. The relative importance and object of the wrongdoer’s conduct- The concern is about the utility of the wrongdoer’s conduct.
4. The cost and difficulty of taking precautionary measure - where the risk can be reduced without substantial problems it may be accepted that the reasonable person would take precautionary measures.
   -Gordon v Da Mata .