Wrongful intentional conduct

Question 1

Have our courts ever expressly endorsed the proposition that the wrongfulness of intentional harm-causing conduct depends on the breach of a duty not to cause harm intentionally? Has any academic (other than Fagan) done so?

Answer 1

NO, Mckerron has endorsed it in his tb but not the courts.

Question 2

which 2 judgments back up fagans powerful claim that it depends on a breach of duty not to cause harm intentionally

Answer 2

steenkamp and telematrix

Question 3

what did media 24 say

Answer 3

sometimes public policy requires compensation for PEL only when intentional, negligence will not suffice

Question 4

roux v hattingh

Answer 4

While intentional conduct may attract liability, the same conduct may not attract liability when only negligence is proved.

Question 5

A made a false statement to B which caused harm to B because B acted in reliance upon it. H made a false statement to J which caused harm to J because she acted in reliance upon it. The only difference between the two sets of conduct is that A acted intentionally and H acted negligently.

Answer 5

According to our law A acted wrongfully but H acted lawfully, this is due to rule 7 about PEL, PEL misstatments are unlawful when done with intent

Question 6

What, according to Joseph Raz, is it for a person to be under a duty to do (or refrain from doing) something?

Answer 6

“A person is under a duty to do (or refrain from doing) something if and only if he has a reason to do (or refrain from doing) it which exists independently of his own goals and which is also a reason not to act for certain conflicting reasons not to do (or refrain from doing) it.”

Question 7

what is it for a duty to do something to be owed to someone

Answer 7

it is a relational duty owed to another, owe a duty when some valuable aspect of a person’s life is in danger or impaired

Question 8

How does John Gardner explain what he calls ‘justificatory defences’ in the criminal law

Answer 8

• when creating a crim defence law excludes all conflicting reasons
• but justification defenses allows certain reasons to be brought back

Question 9

how can JG explanation be extended to the justification grounds in the law of delict?

Answer 9

• cancelling permission

- loses secondary protective layer

Question 10

Fagan, Aquilian Liability, claims that, for the purpose of Aquilian liability, intentional harm-causing conduct was wrongful if and – at least when it was not also negligent – only if it breached a duty not to cause harm intentionally.

Answer 10

true

Question 11

Fagan, Aquilian Liability, lists a number of judgments in which it was expressly stated that, for intentional harm-causing conduct to be wrongful, it is both necessary and sufficient that it breached a duty not to cause harm intentionally.

Answer 11

false

Question 12

Alone among South African delict scholars, Robin McKerron rejected the idea that it is both a necessary and sufficient condition, for intentional harm-causing conduct to be wrongful, that it breached a duty not to cause harm intentionally.

Answer 12

false

Question 13

According to Fagan, Aquilian Liability, the fact that our courts have made the following claim (along with others) provides indirect evidence that the wrongfulness of intentional harm-causing conduct depends on the breach of a duty not to cause harm intentionally: An injurious falsehood could be wrongful, for the purpose of Aquilian liability, only if it was intentional.

Answer 13

true

Question 14

According to Fagan, Aquilian Liability, the fact that our courts have made the following claim (along with others) provides indirect evidence that the wrongfulness of intentional harm-causing conduct depends on the breach of a duty not to cause harm intentionally: An interference with contractual rights could be wrongful, for the purpose of Aquilian liability, only if it was intentional.

Answer 14

true

Question 15

According to Fagan, Aquilian Liability, the fact that our courts have made the following claim (along with others) provides indirect evidence that the wrongfulness of intentional harm-causing conduct depends on the breach of a duty not to cause harm intentionally: An incorrect decision reached in an adjudicative process could be wrongful, for the purpose of Aquilian liability, if it was either negligent or intentional.

Answer 15

false

Question 16

According to Fagan, Aquilian Liability, the fact that our courts have made the following claim (along with others) provides indirect evidence that the wrongfulness of intentional harm-causing conduct depends on the breach of a duty not to cause harm intentionally: For the purpose of Aquilian liability, misstatements causing pure economic loss are prima facie (possibly even conclusively) wrongful when negligent, but prima facie lawful when only fraudulent.

Answer 16

false

Question 17

(a) According to our law, the fact that G in the example below acted with intent whereas J did not means that G’s misstatement was prima facie wrongful towards H, whereas J’s misstatement was not prima facie wrongful (or was prima facie lawful) towards K:

G made a false statement to H which caused harm to H because H acted in reliance upon it. J made a false statement to K which caused harm to K because K acted in reliance upon it. The two statements, the circumstances in which they were made, and the harm caused by each, are identical, except that whereas G acted with intent (as G knew the statement to be false), J acted unintentionally but negligently (as J thought the statement was true but ought to have known that it was false).

Answer 17

true

Question 18

According to Joseph Raz, a person is under a duty to do something if and only if he has a reason to do it which exists independently of his own goals and which is also a reason not to act for certain conflicting reasons not to do it.

Answer 18

true

Question 19

According to Nicholas McBride and Roderick Bagshaw, if the law imposes a duty on A to do x, and confers upon B the power to release A from that duty, we can say that A owes B a duty to do x’

Answer 19

false

Question 20

According to John Gardner, when the criminal law grants a justificatory defence it unexcludes some otherwise excluded reasons.

Answer 20

true

Question 21

Fagan, Aquilian Liability, claims that, in the example below, my interest that I have in my autonomy provides a reason for me to read rather than to volunteer:
I spend a Saturday morning reading Winnie-the-Pooh to my child. I could have spent the morning volunteering at the desperately-understaffed local branch of the Society for the Prevention of Cruelty to Animals (the SPCA).

Answer 21

true

Question 22

What are the conditions for the justification ground of defence – according to the majority of South African delict scholars?

Answer 22

1. The harmed person was unlawfully attacking or about to attack the harm-cause or third party.
2. The attack constituted a danger to him or the third party.
3. The harm-causing conduct was necessary in order to avoid the danger.
4. The harm-causing conduct was not excessive in relation to the danger.

Question 23

What are the conditions for the justification ground of defence – according to Fagan, Aquilian Liability?

Answer 23

1. The harmed person was unlawfully attacking or about to attack the harm-causer or third party.
2. The harm-causer had reasonable grounds for thinking that:
   a. the attack constituted a danger to him or a third party
   b. the harm-causing conduct was necessary in order to avoid that danger; and
   c. the harm-causing conduct was not excessive in relation to (or was commensurate with) that danger.

Question 24

What, in a sentence, is the primary difference between the two sets of conditions referred to in questions 1 and 2 above, that is to say, the conditions proposed by the majority of South African delict scholars, on the one hand, and those proposed by Fagan, Aquilian Liability, on the other?

Answer 24

Fagan’s conditions, in (2) require that the harm-causer had “reasonable grounds for thinking that…”, combines subjective and objective approach

Question 25

Discuss – with reference in particular to the case of Kgaleng v Minister of Safety and Security – the evidence against the definition of defence proposed by Fagan, Aquilian Liability.

Answer 25

Held that the policeman had not acted in defence - he rejected Fagan’s condition (2).

Question 26

What are the conditions for the justification ground of necessity – according to most textbooks on the South African law of delict?

Answer 26

1. Someone’s person or property was in danger.
2. The harm-causing conduct was necessary in order to avoid that danger.
3. The harm-causing conduct was not excessive in relation to (or was commensurate with) that danger.

Question 27

What would the conditions for necessity be – according to Fagan, Aquilian Liability – if it really were a justification ground capable of rendering intentional harm-causing conduct lawful (for the purpose of Aquilian liability)?

Answer 27

The harm-causer had reasonable grounds for thinking that

Question 28

Intentional harm-causing conduct may be justified, and thus rendered lawful, on the ground that it was performed in self-defence or defence of a third party.

Answer 28

true

Question 29

(a) According to Fagan, Aquilian Liability, intentional harm-causing conduct will be justified on the ground of defence if the following conditions are satisfied:

(1) The harmed person was unlawfully attacking or about to attack the harm-causer or a third party.
(2) The harm-causer thought that:
(a) the attack constituted a danger to him or the third party;
(b) the harm-causing conduct was necessary in order to avoid that danger; and
(c) the harm-causing conduct was not excessive in relation to (or was commensurate with) that danger.

Answer 29

false = reasonable grounds for thinking that

Question 30

According to the majority of South African delict scholars, the conditions for the justification ground of defence are: that the harmed person was unlawfully attacking or about to attack the harm-causer or a third party; that the attack constituted a danger to him or the third party; that the harm-causing conduct was necessary in order to avoid that danger; and that the harm-causing conduct was not excessive in relation to (or was commensurate with) that danger.

Answer 30

true

Question 31

(a) In the example below, D would have acted in defence, and thus would not have acted wrongfully, if the majority of delict scholars’ definition of defence is correct. By contrast, D could not have acted in defence, and thus would have acted wrongfully, if the definition proposed by Fagan, Aquilian Liability, is the right one.

P unlawfully attacks D with a light cane. The attack takes place at dusk, on a deserted street, during a power outage. D mistakes the cane for a steel rod. Fearing for her life, she shoots and seriously injures P. Even though D’s life was not in fact at risk, she had reasonable grounds for thinking that it was. Even though D could have warded off P’s attack merely by warning him that she was armed, she had reasonable grounds for thinking that nothing short of actually shooting him would suffice.

Answer 31

False. Fagan’s definition includes the reasonableness of the belief so it would be possible that P acted lawfully under Fagan’s view.

Question 32

In R v Atwood, the Appellate Division expressly rejected the idea that whether a harm-doer had acted in defence depended in any way upon what he or she had had reasonable grounds for thinking, thus lending strong support to the definition of defence proposed by the majority of South African delict scholars.

Answer 32

false

Question 33

According to most textbooks on the South African law of delict, intentional harm-causing conduct will be justified on the ground of necessity if three conditions are satisfied: (a) someone’s person or property was in danger; (b) the harm-causing conduct was necessary in order to avoid that danger; and (c) the harm-causing conduct was not excessive in relation to (or was commensurate with) that danger.

Answer 33

true

Question 34

Fagan, Aquilian Liability, asserts that, if necessity were a justification ground capable of rendering intentional harm-causing conduct lawful, the conditions for it would be: that the harm-causer had reasonable grounds for thinking, first, that someone’s person or property was in danger, second, that the harm-causing conduct was necessary in order to avoid that danger, and, third, that the harm-causing conduct was not excessive in relation to (or was commensurate with) that danger.

Answer 34

true

Question 35

According to Stoffberg v Elliott and Esterhuizen v Administrator, Transvaal it may be justified for a doctor to perform life-saving surgery on a patient without her prior consent.

Answer 35

true