Role of wrongfulness Flashcards
What is wrongfulness independant of, & addition to other elements of delictual liability?
Conduct: conduct is used to estab the presence of human conduct in form of positive conduct/omission. Omission involves enquiring whether a duty not to cause harm exists. Question is whether the harm fell wihthin the defendants scope of responsibility so that society would regard failure to prevent harm as wrongful.
Harm: Deals with the effects of the infringement of a right or interest. Does not explain what interests the law of delict will protect or to what extent it will protect these interests. Physical integrity and tangible property are generally recognised as fully protected interests, and the infringements of these interests by positive conduct is prima facie wrongful. Boberg says in this regard that ‘it is settled law that all harm to person or property caused by a positive act is prima facie wrongful’. However, in the case of pure economic loss, privacy, reputation and mental distress, the extent of protection is often a question of wrongfulness
Fault: deals with the blameworthiness of defendants conduct but not with the weight given to intent or reprehensible motive of the defendant, or deals with the mistakes made by the defendant. Intent, awareness of possibility of harm, reprehensible motive and negligence can be indicators of wrongfulness.
Requirements of conduct, causation, harm & fault does not adequately deal with conflicting rights or interests and does not leave scope for policy considerations. Balancing these rights or interests is a wrongfulness issue and the value judgement also forms part of the wrongfulness enquiry.
Liability and fault based system position
Under a fault-based system, the requirement of either negligence or intent acts as an important filter in evaluating whether a court should impose liability. Where liability is strict, eliminating the fault requirement does not mean that all risk of harm is indiscriminately transferred to the defendant who caused the harm. Strict liability does not mean absolute liability; it still requires wrongfulness based on reasonableness and policy
Summary of wrongfulness
Involves the scope of protection that the law affords to various interests, the scope of a persons responsibility to act & policy considerations that relate to whether the LOD must intervene
Fundamental question in wrongfulness enquiry
- Should a court, as a matter of policy, impose liability on the defendant in these circumstances?
- Is it reasonable to compensate the plaintiff for the loss, and for the defendant to bear the loss?
Country Cloud: “wrongfulness typically acts as a brake on liability, particularly in areas of law of delict where it is undesirable or overly burdensome to impose liability
