Relevan policy considerations

Question 1

What are the relevant policy considerations?

Answer 1

1. The social and economic consequences of imposing liability
2. The availability of alternative remedies
3. The need to hold the state accountable vs execution of functions
4. Constitutional rights, norms and values
5. Certain factual scenarios
6. Nature of interest requiring protection
7. Defendants intent or state of mind
8. Balancing of interests

Question 2

Discuss social and economic consequences of imposing liability and do this by referring to case law

Answer 2

Shell & BP v Osborne Panama: . Series of economic consequences followed. Court was asked whether the defendant who damaged the property should over and above be held liable for property damage, be held liable for the pure economic loss which all the other parties suffered. Did not hold defendant liable because causation of pure economic loss in that context not wrongful; court looked @ fear for unlimited liability & this would open the floodgates.

Question 3

What is the position of the availability of alternative remedies

Answer 3

The court is very hesitant to impose delictual liability if they determine on the facts that the plaintiff had another available remedy, either in contract or could have perhaps taken out insurance.

Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd: The Court held that a legal duty in delict did not fit comfortably into a detailed business contract for professional services, inter alia, because recognising an action in delict could mean contractual terms being avoided and could create “a trap for the unwary” within the contractual relationship. The denial of this action was limited to the case where the alleged negligence consists of a breach of contract.

Trustees, Two Oceans Aquarium Trust v Kantley & Templer (Pty) Ltd: The court held that public policy does not require extension of the Aquilian action to rescue a plaintiff who should have avoided risk of harm by contractual means, but did not do so.

Question 4

Why is the consideration of state accountability and execution of functions important?

Answer 4

Constitutional rights may imply a legal duty not to cause harm or to prevent harm to another person. (Including – right to sanctity of life, freedom and security of person, privacy and freedom of expression). Duties may be imposed on state officials to protect these constitutional rights:

Carmichele v Minister of Safety and Security: The court based liability on the duties of the police and prosecutors who released a person on his own recognisance, with a prior conviction for violence. The person assaulted the plaintiff while he was awaiting trial on a new charge

Minister of Safety and Security v Van Duivenboden: The court held that the police failed in their duty to withdraw the firearm licence of a person prone to violence when drunk

Minister of Safety and Security v Hamilton: The court held the police liable for failing to enquire into the psychological fitness of the applicant for a firearm license

Van Eeden v Minister of Safety and Security: The court held the police liable for allowing a prisoner with a history of violent crime to escape
On the facts above the notm of accountability weighed in favour of imposing delictual liability.

Question 5

Victims consitutional rights consists of?

Answer 5

The right to life, freedom and security, human dignity, privacy & freedom of expression. In the past these rights were not taken into account as strongly, in these cases those rights and the underlying norms like the norm of accountability caused the court to conclude that delictual liability should be imposed on the defendant. Constitutional rights may now imply a legal duty not to cause harm or to prevent harm to another person

Question 6

The TB refers to certain factual scenarios which might justify the imposition of delictual liability, discuss.

Answer 6

Certain factual circumstances may indicate a duty not to cause harm or to prevent harm, including: proportionality of the risk of the harm and the cost of prevention, control over a dangerous object or situation, awareness of danger, prior conduct creating danger, a relationship imposing responsibility and professional knowledge.

Ewels highlighted some considerations made by court: there is a statutory duty on police officers to prevent crime; the attack occurred on the premises of the police station.

Prescribed case: Cape Town Municipality v Bakkerund

Question 7

The nature of interests requiring protection

Answer 7

Courts more readily recognise a duty in respect of physical injury and damage to property than a duty in respect of pure economic loss. Where the loss is purely economic, it becomes more problematic to impose delictual liability.
Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd: The court held that a legal duty in delict did not fit comfortably into a detailed business contract for professional services, inter alia, because the harm caused by the negligent performance of the services was pure economic loss.

Question 8

Defendants intent or state of mind

Answer 8

If a defendant has caused the plaintiff’s harm in an intentional manner, and or if the defendant had the motive to bring about injury to the plaintiff, then courts will be more readily inclined to impose delictual liability
We find it more reprehensible to intentionally cause harm to another human being rather than negligently causing harm. The courts have a legal tool, a consideration that they can use to establish whether delictual liability should be imposed

Steenkamp v Provincial Tender Board EC: if person intentionally acted or was corrupt in their actions, then it would be wrongful interms of delictual liability. An honest bona fide mistake where you were simply negligent wont be wrongful for the purpose of delictual liability.

Question 9

Balancing of interests

Answer 9

Use Bakkerud principles