Past Paper true and false questions

Question 1

In Kruger v Coetzee the Appellate Division set out a test that since then has become known as the ‘classic’ test for negligence in the South African law of delict. It is implied by this test that, for a person who caused harm to another to have done so negligently, it is not only necessary, but also sufficient, that a reasonable person in his/her position would have foreseen the reasonable possibility that his/her conduct would result in that harm.

Answer 1

False (this answer only mentions the first leg which is not sufficient)

Question 2

In Kruger v Coetzee the Appellate Division found that the defendant had not acted negligently, because the condition set about immediately above had not been satisfied (more specifically because ‘a diligens paterfamilias in the defendant’s position would not have foreseen the possibility of his horses straying through the open gate on to the main road and causing damage to motor cars which might collide with them’.)

Answer 2

False ( he did forsee the damages would occur but he did take necessary steps by informing the local authority)

Question 3

In Sea Harvest Corporation v Duncan Dock Cold Storage Scott JA, for the majority, found that the negligence required in order to hold the defendants liable had not been established because ‘as a general possibility a fire in the cold store at Duncan Dock was not reasonably foreseeable’.

Answer 3

False ( only an internal source of a fire would have been foreseeable)

Question 4

In Mkhatswa v Minister of Defence the Supreme Court of Appeal held that, in order for the so-called ‘foreseeability leg’ of the negligence test to be satisfied, it was not necessary that a reasonable person would have foreseen ‘a reasonable possibility’ of harm, but was sufficient that a reasonable person would have foreseen ‘a mere possibility’ of harm.

Answer 4

False ( must be a reasonable possibility of harm)

Question 5

In Mkhatswa v Minister of Defence the Supreme Court of Appeal held that, to the question whether ‘those in command at Apex base’ had been negligent in the required sense, it was irrelevant whether reasonable persons in their position would have foreseen that certain omissions on their part might result in harm being suffered by someone like the plaintiff – i.e., an ‘innocent’ inhabitant of the township in question, as opposed to someone who had been involved in the earlier clash with soldiers from the base. In so holding, the Supreme Court of Appeal in effect endorsed an ‘abstract’ approach to negligence, in so far as the harm-sufferer is concerned.

Answer 5

False, they endorsed a relative approach

Question 6

In Ngubane v SATS the Appellate Division discussed four considerations that are relevant to the determination of whether a reasonable person, having foreseen a reasonable possibility of harm resulting from certain conduct, would have taken steps to guard against that harm: (a) the degree or extent of the risk created by the conduct; (b) the gravity of the possible consequences if the risk of harm materialises; (c) the utility of the conduct; and (d) the burden of eliminating the risk of harm.

Answer 6

true, this case sets out the VdW elements of Px H < B (U)

Question 7

In Ngubane v SATS the Appellate Division found, as regards considerations (a) and (b) set out immediately above, that the risk was high (‘near certainty’) and the gravity was great (‘serious, if not fatal, injury’).

Answer 7

True

Question 8

In Pretoria City Council v De Jager the Appellate Division, having set out the same four considerations discussed in Ngubane v SATS, and having stated that in general the inquiry whether the reasonable person would have taken measures to prevent foreseeable harm involves a balancing of considerations (a) and (b) with (c) and (d), went on to find that the defendant (the Council) had not failed to take reasonable precautions in the circumstances and thus had not been negligent.

Answer 8

True

• this case shows that even if there is harm you will not always be liable
• application of the Ngubane factors
• burden of taking precautions was too high for the municipality

Question 9

In Mukheiber v Raath the Supreme Court of Appeal reiterated the view, which the Appellate Division had previously expressed in Van Wyk v Lewis, that, in the case of a surgeon, negligence is to be determined by considering the general level of skill and diligence possessed and exercised at the time by the members of the branch of the profession to which the practitioner belongs.

Answer 9

True, doctors are held to a higher standard

Question 10

Having applied the higher standard referred to immediately above, the Supreme Court of Appeal in Mukheiber v Raath found that the defendant (Dr Mukheiber) had been negligent.

Answer 10

True

Question 11

In Oppelt v Department of Health, Western Cape the majority of the Constitutional Court, having applied the ‘reasonable doctor standard’, held that certain medical personnel in the defendant’s employ had been negligent in causing the plaintiff’s harm. The minority judgment by contrast held that, since the medical personnel in question were two final-year medical students, a lower standard than the ‘reasonable doctor standard’ had to be applied and, having applied that lower standard, found that no medical personnel in the defendant’s employ had been negligent.

Answer 11

False

Question 12

In Cowan v Ballam Greenberg JA (in his dissent) insisted that, for the defendant to have acted with the negligence required for him to be held liable for the death of the deceased, it was sufficient that a reasonable driver in his position would have foreseen the possibility of harm to the horse (which the deceased was in charge of at the time but did not own) and would, as a result, have slowed down sufficiently to have avoided the collision which killed the deceased. In other words, Greenberg JA accepted that negligence is to be determined by taking a ‘relative’ rather than an ‘abstract’ approach to the harm-sufferer.

Answer 12

False, Greenberg JA took a relative approach but the description is an abstract approach If it was sufficient to see harm to the horse this is an abstract approach.

Question 13

In Road Accident Fund v Sauls the Supreme Court of Appeal expressly stated that, for the driver of the insured vehicle (the truck) to have been negligent in the sense required for liability to arise in respect of the emotional shock suffered by the plaintiff, it was necessary that he (the driver) ‘should have foreseen as a reasonable possibility that she [the plaintiff] would be harmed’. And the Court expressly found that the driver ‘was negligent vis-à-vis herself [the plaintiff]’. This suggests that, whether or not the Court applied it, it certainly endorsed a ‘relative’ approach to negligence, in so far as the harm-sufferer is concerned.

Answer 13

True, the court takes a relative approach

Fagan criticises this approach because they do not apply the test properly

Question 14

A in the situation described below is less likely to be held liable to B for the loss resulting from his harm X if the law takes, in respect of the harm suffered, a ‘relative’ approach, than if it takes an ‘abstract’ approach:
A caused harm X, and resultant loss, to B by performing certain conduct. A’s conduct was not negligent in relation to B’s harm X, as it is not the case that a reasonable person in the position of A would have foreseen the reasonable possibility of the conduct causing harm X to B and for that reason would not have performed it. However, A’s conduct caused harm X to B by causing harm Y to B. And A’s conduct was negligent in relation to B’s harm Y as it is the case that a reasonable person in the position of A would have foreseen the reasonable possibility of the conduct causing harm Y to B and for that reason would not have performed it.

Answer 14

True , this is a further harm scenario. If we take a relative approach he would not be liable but if we took an abstract approach he would be.
NB to remember that we don’t take the relative approach to this in SA law this is just Fagan’s hypothetical.

Question 15

In Road Accident Fund v Russell the Supreme Court of Appeal found that the defendant could not be held liable for the deceased’s suicide, because the insured driver, who had negligently caused the collision in which the deceased had been injured, had not also been negligent in respect of the suicide – the Court therefore took an abstract approach to negligence, in so far as the harm suffered was concerned.

Answer 15

False, even though they did take an abstract approach he was held liable.

Question 16

According to the but-for test for causation, which was endorsed by both Corbett JA and Viljoen AJA in Minister of Police v Skosana, event X was a cause of event Y if and only if, had event Y not occurred, event X would not have occurred either.

Answer 16

False

Question 17

Although B’s injury in the situation described below was caused by A’s conduct (his driving), and although A did act negligently (by driving faster than 60 km/h), B’s injury was not caused by A’s negligent driving (his driving faster than 60 km/h):
A drives down a city road at 100 km/h. Without warning, B runs into the road and is injured by the impact of A’s car. It was negligent for A to have driven faster than 60 km/h. It would not have been negligent for A to have driven at 60 km/h or slower. Had A not driven down the road, B would not have been injured at all. However, even if A had driven at only 60 km/h, B would still have been injured by the impact of the car.

Answer 17

True, he would have been killed or injured anyway because he ran into the road. The negligent driving did not cause the harm

Question 18

In the situation described below, the doctor’s negligent conduct was not a cause of the patient’s death:
A doctor administers 80 ml of a drug to a patient in order to combat a life-threatening condition. The patient nonetheless dies of the condition. It was negligent for the doctor to have administered less than 100 ml of the drug to the patient. The doctor would have acted without negligence, had he administered 100 to 150 ml of the drug to her. Had the doctor administered 140 to 150 ml of the drug to the patient, she would still have been alive (as her condition would have been successfully managed). However, had the doctor administered 100 to 110 ml of the drug to her, she would have died of the condition in any event.

Answer 18

True

Question 19

In Siman & Co v Barclays National Bank the majority and dissenting judgments came to different conclusions because they differed over the test for causation. According to Corbett JA, writing the dissent, the test to be applied was the standard but-for test. According to Trollip AJA, writing for the majority, causation was to be determined by asking whether the defendant’s negligent conduct had made a ‘material contribution’ to the plaintiff’s loss.

Answer 19

False

Question 20

In his book, The Law of Delict Volume 1 Aquilian Liability, P Q R Boberg assumed that the liability outcomes that would be produced by the combination of an abstract approach to negligence and the foreseeability test for remoteness were identical to the liability outcomes that would be produced if the law were to adopt a relative approach to negligence (and not bother about remoteness).

Answer 20

true, he said there is no difference between the outcome because the causation would sort it out

Question 21

In International Shipping Co v Bentley Corbett CJ rejected the idea, previously accepted by Van Heerden JA in the criminal case of S v Mokgethi, that remoteness was to be determined by application of a ‘flexible test’ in which considerations of policy may play a part.

Answer 21

False

Question 22

In ‘What is Tort Law For? Part 1. The Place of Corrective Justice’ John Gardner argues that while some norms of justice, such as norms of distributive justice, are allocative, others, such as norms of corrective justice, are not.

Answer 22

False , you can allocate corrective justice

Question 23

In ‘What is Tort Law For? Part 1. The Place of Corrective Justice’ John Gardner rejects a thesis, previously developed by Richard Posner in order to explain the nature of corrective justice, which Posner called the ‘continuity thesis’.

Answer 23

False, he uses the continuity thesis

Question 24

In ‘What is Tort Law For? Part 2. The Place of Distributive Justice’ John Gardner argues that the aim of tort law is only to achieve distributive justice between litigating parties, thereby recanting the view which he had previously defended in ‘What is Tort Law For? Part 1. The Place of Corrective Justice’.

Answer 24

False, he says we need distributive and corrective justice

Question 25

In the situation described below, A could be held liable to B for B’s loss if , in determining whether A acted with the required negligence, the relative approach were takin in respect of the harm sufferer, but A could not be held liable to B for B’s loss if, in determining whether A acted with the required negligence, the abstract approach were taken in respect of the harm sufferer.

A caused harm and resultant loss to B by performing certain conduct. A’s conduct was not negligent in relation to B, as it is not the case that a reasonable person in the position of A would have foreseen the reasonable possibility of the conduct causing harm to B and for that reason would not have performed it. However, A’s conduct was negligent in relation to a third party, T, as it IS the case that a reasonable person in the position of A would foresee the reasonable possibility of harm to T and for that reason would not have performed it.

Answer 25

False, he would be held liable if he took an abstract approach. He would only be held liable in a relative approach if there was negligence to B.

Question 26

In the case of Admin Natal Rumpff Cj expressed the view that in respect of the harm sufferer the SA common law has adopted the relative approach

Answer 26

False, the abstract approach BUT after this case we took a relative approach

Question 27

In the case of Mkhatswa the SCA seems to have endorsed as part of the ratio of its decision the view that for the purpose of AL negligence is determined by taking, in respect of the harm sufferer a relative rather than an abstract approach.

Answer 27

True, relative approach to harm sufferer

Question 28

In Bester the AD seems to have accepted as part of the ratio of its decision that a person who negligently caused physical harm to a third party could only be held liable to a person who as a result suffered emotional shock only if the person who negligently caused the physical harm to the third party was also negligent in relation to the person who suffered the emotional shock

Answer 28

True, in this case they did not apply the 2nd leg of the case

Question 29

In What is Tort Law part 1 John Gardener claims that one cannot explain what tort law is without invoking corrective justice

Answer 29

True

Question 30

In What is tort Law part 1 , John Gardner claims that the norm of tort law according to which (legally recognized) wrongdoers are required to pay reparative damaged in respect of those (legally recognized losses) that they wrongfully occasion on the ground that they wrongfully occasioned them is a norm of corrective justice

Answer 30

True

Question 31

In What is Tort Law part 1 John Gardner claims that tort law’s norm of corrective justice cannot be justified without relying on the counterpart moral norm of corrective justice which tort law’s norm of corrective justice helps to constitute

Answer 31

True

Question 32

In What is Tort Law part 1 John Gardner claims that the counterpart moral norm of corrective justice is justified by what he labels as the continuity thesis the key idea of which is that , if one has breached a duty (or obligation) to do something, the reasons which justified the duty (unlike the duty itself) are not extinguished, but survive as the reasons justifying a secondary duty to do the next best thing

Answer 32

True

Question 33

In RAF v Russel the SCA found that the defendant could not be held liable for the deceased’s suicide because the insured driver who had negligently caused the collision in which the deceased had been injured , had not also been negligent in respect of the suicide the Court therefore took an abstract approach to negligence in so far as the harm suffered was concerned

Answer 33

False he could also be liable for the suicide

Question 34

In Sea Harvest the court seems to say that the test for negligence established in Kruger v Coetzee was merely a guide to determining negligence and the ultimate criterion in determining negligence is whether the conduct falls short of the standard of the reasonable person

Answer 34

True, in this case they used the Kruger test in the ratio. They say one thing but do a different thing

Question 35

In Herschel v Mrupe the court states that a reasonable person is not that of a timorous faint hearted always in trepidation lest he or others suffer some injury: on the contrary he ventures out into the world engages in affairs and takes reasonable chances. he tales reasonable precautions to protect his person and property and expects others to do likewise”

Answer 35

True this is a direct quote

Question 36

In terms of the second leg of the negligence test, whether a person would take precautions to avoid the harm, Schreiner’s view in Herschel v Mrupe is more utilitarian then that of VdW

Answer 36

false, VdW is more utilitarian

Question 37

In What is Tort law part 1 John Gardner claims that reasons against performing the secondary obligation can never outweigh the reasons in favour of conforming with the secondary obligation

Answer 37

False, there are reasons that can outweigh this

Question 38

In Durr v Absa Bank the court held that the test to determine whether a person would be held to a higher standard is always based on the actual expertise of the person in question

Answer 38

False, you are still liable if you profess to having skill/knowledge

Question 39

In Workmans Compensation Commissioner v De Villiers the court took an abstract approach to the harm sufferer as it found that the lorry driver could not reasonably have foreseen that a person would be standing behind the door on a ladder and therefore there was no negligence in respect of the person harmed

Answer 39

False, the court took a relative approach

Question 40

In Botes v Van Deventer the Appellate Division held that the defendant was liable for the full extent of the loss even though the full extent of the harm was not foreseeable

Answer 40

True, they took an abstract approach to the extent of the harm

Question 41

In The Loots case the court found the doctor, Loots , had been negligent in terms of the brain damage suffered by the patient as a result of AFE because even though AFE was not foreseeable as it was such a rare condition, other harm associated with pregnancy was foreseeable. loots was negligent in respect of the other harm and therefore he was held liable for the actual harm suffered.

Answer 41

True

Question 42

In Mashongwa the court took an relative approach to the manner in which the harm occurred as it found that the accidental falling out of the train was foreseeable and the fact that Mashongwa was deliberately pushed out of the train did was irrelevant

Answer 42

False the court took an abstract approach

Question 43

According to Anton Fagan what has to be reasonably foreseeable in the first leg of the test for negligence is loss and not harm

Answer 43

False, foreseeable harm because you cannot always foresee loss

Question 44

According to Anton Fagan, the test in Kruger v Coetzee is binding. Even though the court held that in Sea Harvest it was merely a useful guide, the court still applied the test when determining negligence and therefore it forms part of the ratio of the case. The previous statement that the test is merely a guide is therefore obiter.

Answer 44

True, the test is binding