Wrongfulness Flashcards

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1
Q

What is the purpose of wrongfulness, and how do the courts apply it?

A

Wrongfulness seeks to limit the scope of delictual liability. It is only when someone causes damage that is considered by the community to be wrongful, that the law ought to hold perpetrators of delicts liable. It is a policy instrument that can be used to control the expansion of liability. One first looks at precedent, and then only applies the open-ended test if they wish liability to be extended.

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2
Q

What is the open-ended test for wrongfulness?

A

Wrongfulness depends on the ‘general criterion of objective reasonableness’, ‘legal and public policy considerations’, the ‘boni mores of society’ and the ‘legal convictions of the community’ [Minister van Polisie v Ewels 1975 A]. The meaning of this test is not very clear. It certainly requires a judicial value-judgment, but what is evaluated and from what perspective?

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3
Q

When is certain conduct prima facie wrongful?

A

It is prima facie wrongful to:

a) injure or kill another or damage their property by way of a positive, culpable act whether intentional or negligent
b) publish a defamatory statement concerning the plaintiff

If the harm-causing conduct in question is prima facie wrongful, then it is for the defendant to negative wrongfulness, by establishing a defence justifying the harm-causing conduct (e.g. self-defence; necessity; truth for public benefit; privilege, etc).

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4
Q

What are some of the defences excluding unlawfulness?

A

a) authority
b) consent by the plaintiff
c) private defence
d) necessity
e) provocation

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5
Q

Elaborate more on a) authority

A

Some people may lawfully inflict harm on others, by virtue of common law or statute. Examples include:

i) authority of parents and persons in loco parentis to inflict punishment
ii) authority of public officials - in order to rely on statutory authority, it must be established that the statute in fact authorizes the particular infringement of interests and that the bounds of the authority were not exceeded

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6
Q

Elaborate more on b) consent by the plaintiff

A

If a person who has capacity suffers harm previously consented to (as long as it is not contra bonos mores), with full knowledge and appreciation of the nature of that harm, he or she cannot claim redress.

i) consent may be given by someone else aside from the plaintiff e.g. parent
ii) whether the harm will occur or whether there is only a risk that it will occur may influence the legitimacy of the consent in accordance with the boni mores e.g. certain amputation or risk of broken bone
iii) there must be actual consent to the specific harm suffered e.g. being hit with a pillow, but the pillow is actually filled with bricks

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7
Q

Elaborate more on c) private defence

A

Did the person act reasonably? This must be assessed objectively, and not by armchair critics assisted with the perspective of hindsight. Ex post facto (retrospective) versus ex ante (prospective) approach will yield different results.
Elements may include (ex post facto):
a) an unlawful attack must have been imminent or underway
b) the defensive act must have been necessary to avert the attack
c) the defensive act must have been directed at the attacker
d) excessive means must not have been used

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8
Q

Elaborate more on d) necessity

A

This is lawful conduct directed against an innocent person for the purpose of protecting an interest of the actor or a third party against a dangerous situation. Here, the harm is initially directed at a third party.
Elements (ex post facto):
a) the dangerous situation must have existed at the time when the defendant acted
b) the defendant must have been obliged to endure the danger
c) the act directed against the innocent person was the only reasonable way of escaping the danger
d) the interest infringed was not greater than the interest protected

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9
Q

Elaborate more on e) provocation

A

A defendant must establish:

a) that the provocation was not merely verbal, but physical and
b) that he or she acted immediately and reasonably

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10
Q

When is certain conduct prima facie lawful?

A

It is prima facie lawful (i.e. not wrongful) to:

a) cause harm by way of a negligent omission
b) cause harm by way of a negligent misstatement/misrepresentation
c) negligently cause pure economic loss (e.g. relational pure economic loss)

If the harm-causing conduct in question is prima facie lawful (i.e. not wrongful), then it is for the plaintiff to establish wrongfulness, by (i) pointing to a past precedent covering the type of case in question or, if there is none, by (ii) trying to persuade the court to apply the general, open-ended test in their favour.

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11
Q

What is the common/orthodox view of wrongfulness?

A

Wrongfulness turns on the the reasonableness of conduct judged with reference to the actual circumstances and consequences of the conduct. If no harm resulted or a greater harm was prevented, then the conduct in question cannot be wrongful. This is the common view, and it is objectively judged ex post facto.

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12
Q

How does Fagan view wrongfulness of intentional harm-causing conduct?

A

The wrongfulness of intentional harm-causing conduct usually depends on the reasonableness of that conduct, judged from an ex ante perspective — that is, without reference to the probable circumstances and consequences of the conduct, the actor’s beliefs about the circumstances and the consequences of the conduct, and the reasonableness of those beliefs.

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13
Q

How does Fagan view wrongfulness of negligent harm-causing conduct?

A

The wrongfulness of negligent harm-causing conduct depends on the reasonableness of imposing liability, not of the conduct itself.
e.g. judges’ careless harm-causing decisions
injuring an employee

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14
Q

Provide a case summary of Telematrix

A

The Directorate’s ruling, that an advertisement be withdrawn, had financial implications on the plaintiff.

Did the Directorate act negligently in ruling that the advertisement ought to be removed?

A negligent decision cannot be regarded as unlawful. The process purported to serve the public good and incorrect decisions have to be accepted. Agreed with Prof Fagan’s approach. Appeal is dismissed with costs.

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15
Q

Provide a case summary of Two Oceans Acquarium

A

Damages sought for failures which had developed in the exhibit tanks at the aquarium.

Was there a legal duty to act without negligence, and was the respondent’s incorrect negligent decision in choosing the waterproof option wrongful?

Agreed with Prof Fagan’s view. The reasonableness of imposing liability must be judged ex ante. The damages sought could have been included and recovered by way of contract. Thus, the Court could see no reason why the Acquilian remedy should be extended to rescue a plaintiff who was in the position to avoid the risk of harm by contractual means, but failed to do so. Hence, the respondent’s incorrect negligent decision was not wrongful because there was no duty not to act negligently and there were no policy considerations for the extension of the Acquilian claim.

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16
Q

Provide a case summary of Union Government v Ocean Accident

A

A magistrate was injured in a car accident between a farmer and a taxi-cab. The magistrate could not work, but was paid by his employer. The government and the magistrate sued the farmer, the company and the driver of the taxi.

Should liability be extended to allow the recovery of damages for the salary paid to the magistrate in his absentia from practice?

The principle should not be extended to make the injurer liable to the employer of the injured party. The general rule is that if one negligently injures the primary victim and a secondary victim suffers pure economic loss, one has not acted wrongfully to the secondary victim.

17
Q

When may harm be justified?

A

Harm may be justified:

1) if a reasonable person in the harm-doers position would have believed that the victim posed a danger to the harm-doer or a third party
2) the means of defence was reasonably commensurate with the danger

Therefore, a harm-doer may act in a sudden emergency.

18
Q

What are some defences to an accusation of wrongfulness?

A

a) self-defence
b) necessity
c) qualified privelege
d) the Bogoshi defence

19
Q

Elaborate more on a) self-defence

A

Concerns intentional harm-causing conduct directed at an attacker.

20
Q

Elaborate more on b) necessity

A

Concerns intentional harm-causing conduct directed at an innocent person to avoid greater harm to that person, to oneself, or to someone else.

21
Q

Provide a case summary of Maimela v Makhado

A

Concerns intentional harm-causing conduct directed at an innocent person to avoid greater harm to that person, to oneself, or to someone else.

Was the unlawfulness of the conduct excluded by the defense of necessity?

Yes it was. The victim was lying on the ground, subject to a murderous attack by a mob. It was necessary for him to use his firearm to avert the unlawful attack.

22
Q

Elaborate more on c) qualified privelege

A

In the case of a defamatory statement, a reasonable person in the position of the defendant must have believed that a duty or interest existed which entitled him to make the statement. The defendant must also not have acted with malice.

23
Q

Elaborate more on d) the Bogoshi defence

A

The wrongfulness of making a false statement depends on the reasonableness of the publication/conduct. This in turn relies on the reasonableness of the mistaken belief.

24
Q

What factors ought to be considered by the courts when determining whether wrongfulness should subsist?

A

1) convenience of administering the rule
2) objection of limitless or indeterminate liability
3) floodgates risk
4) availability of an alternative remedy
5) possibility that liability would disrupt the efficient functioning of public authority
6) whether the defendant is best placed to protect themself against loss