Remoteness Flashcards
example 1:
In the example below, the harm and further harm (as these terms are used in the chapter on remoteness in Fagan, Aquilian Liability) are B’s being stabbed and B’s losing his wallet and iPhone, respectively.
While in a conversation with her babysitter, A smashes her VW Polo into B’s Vespa, which is parked around the corner from the restaurant where B is working as a part-time waiter. A leaves a note on the Vespa’s windscreen, acknowledging her culpability and giving her contact details. When B arrives at his Vespa a little after midnight, he discovers that its front wheel is so badly buckled that he cannot possibly ride it. He phones his digs mate to come and pick him up. While waiting for his lift, B is attacked by C who, after stabbing him four times, makes off with his wallet and iPhone. In the case arising from these facts, the court finds that A’s driving had been negligent and wrongful, because it had foreseeably caused the damage to B’s Vespa. It also finds that a reasonable person in A’s position would have realised that, by damaging B’s Vespa, she rendered him vulnerable to the kind of attack which he suffered at the hands of C. However, according to the court, the probability of such attack was so low that a reasonable person in A’s position would not, for that reason, have taken more care than she in fact did in driving her VW Polo. In particular, a reasonable person in A’s position would not, for that reason, have refrained from talking on her cell phone while driving.
false
Example 1; If the law made liability for loss caused by further harm to the victim of a wrong conditional upon negligence and wrongfulness in relation to the further harm, A would be held liable to B for the loss resulting from his being stabbed and having his wallet and iPhone stolen by C, in the example in (a) above.
false
EXAMPLE 1:Assuming (as seems probable) that the law does not make liability for loss caused by further harm to the victim of a wrong conditional upon negligence and wrongfulness in relation to the further harm, A would be held liable to B for the loss resulting from his being stabbed and having his wallet and iPhone stolen by C, in the example in (a) above, if remoteness had not been a further requirement for liability.
true
Example 1: Assuming (as seems probable) that the law does not make liability for loss caused by further harm to the victim of a wrong conditional upon negligence and wrongfulness in relation to the further harm, and given that the law does make remoteness a further requirement for liability, whether A would be held liable to B for the loss resulting from his being stabbed and having his wallet and iPhone stolen by C, in the example in (a) above, would depend on how remoteness is determined.
true
The many judgments that have applied or discussed the direct consequences test generally take it to be a composite test, consisting of two rules connected by a certain concept. What is that concept? What, as a rough approximation, are those two rules?
Concept is the new intervening event or novus actus interveniens.
An event is a novus actus if it was (1) voluntary and deliberate and (2) not and inherent risk, not foreseeable and not reasonable
According to the flexible test, remoteness is not always to be determined only by applying the direct consequences and foreseeability tests, but may, on occasion, be determined also by applying certain other criteria. What are those criteria?
Reasonableness, Justice, Fairness, policy.
For the past hundred years, our law has required the question of remoteness (in other words, the question whether loss which was caused by a wrong was sufficiently closely connected to that wrong for the imposition of liability on the wrongdoer to be justified) to be answered by applying the so-called ‘flexible test’.
false
According to the flexible test, remoteness is in all cases to be determined by asking only whether it would be fair, just, and reasonable, and consistent with policy, to hold the wrongdoer liable for the loss that she had caused.
false
The foreseeability test is a composite test, consisting of two rules connected by the concept of a new intervening event (or novus actus interveniens).
false
In the case of Road Accident Fund v Russell, the Supreme Court of Appeal expressly accepted that whether loss caused by a wrong was caused by a new intervening event depends on whether the loss was caused by a voluntary act performed after the wrong by someone other than the wrongdoer
true
In the case of The Premier of the Western Cape Province v Loots, the Supreme Court of Appeal seemed to take the view that, in order for a person’s conduct to qualify as a novus actus interveniens (or new intervening event), it needed to have been unreasonable
true
On the basis of judgments like Ocean Accident and Guarantee Corporation v Koch, Kruger v Van der Merwe, Da Silva v Coutinho, Standard Chartered Bank of Canada v Nedperm Bank and The Premier of the Western Cape Province v Loots, it is safe say that the law endorses the following two propositions concerning the foreseeability test: first, that the test makes it necessary and sufficient, for loss not to be too remote, that the general nature of the harm actually suffered and the general manner in which that harm occurred were reasonably foreseeable and, secondly, that the test does not make it necessary, for loss not to be too remote, that the precise nature of the harm actually suffered, or the precise manner in which it occurred, or its actual extent was reasonably foreseeable.
true
According to Paul Boberg, the liability outcomes that would be produced by the combination of a relative approach to negligence and the direct consequences test for remoteness were identical to the liability outcomes that would be produced if the law were to adopt an abstract approach to negligence (and not bother about wrongfulness).
false
According to the flexible test, remoteness is always to be determined by applying only the direct consequences or foreseeability tests, but a court has a discretion as to which to apply.
false
Two months after the judgment of International Shipping Co v Bentley was handed down, its analysis of remoteness was accepted as valid, also for the purpose of Aquilian liability, by Corbett CJ in the case of S v Mokgethi.
false
