Wrongfulness: Breach of a legal duty

Question 1

What is a legal duty?

Answer 1

A duty of care is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others.

Question 2

What’s the basic test for wrongfulness?

Answer 2

Boni Mores Test.

Question 3

What is the Boni Mores test?

Answer 3

The boni mores test is an objective test based on the criterion of reasonableness.

The basic question is whether, accounting to the legal convictions of the community and in light of all the circumstances of the case, the defendant infringed the interests of the plaintiff in an unreasonable manner.

Question 4

What is the practical application of the boni mores?

Answer 4

1. Infringement of interests as indication of wrongfulness.

If a factual infringement has taken place, this can already be an indication of, or pointer to, the wrongfulness of the conduct in other words, it can be constitute prima facie wrongfulness or create a presumption of wrongfulness.

In the Tommie Meyer Films case - the court accepted the doctrine of subjective right.

2. Breach of a legal duty

Question 5

Are omissions (failure to act) seen as wrongful?

Answer 5

Generally person does not act wrongfully for the purposes of the law of delict if he omits to prevent harm to another person.
A person is generally not liable where his omission or omissio- his failure to act positively to prevent loss factually infringes the interests of another.
Omission are seen as prima facie lawful.
The test is objective.

Question 6

Discuss prior conduct as a factor that may determining the wrongfulness of an omission.

Answer 6

A person acts prima facie wrongfully when he creates a new source of danger by means of positive conduct and subsequently fails to eliminate that danger with the result that harm is caused to another person.

In the Ewels case a police man just watched as a person was being assaulted.

In the Maweza case - in favour of the preferred view that prior conduct was but one of several considerations which might indicate the existence of the legal duty.

Question 7

Discuss control of a dangerous object / person / situation as a factor that may determine the wrongfulness of an omission.

Answer 7

Control of a dangerous object or person can be factor in determining whether a legal duty rested on the person in control, to prevent someone from being injured by the particular situation.

In the Quathlamba case - certain prior conduct of a dangerous object may be a factor in the total matrix of circumstances of a particular case from which a conclusion of wrongfulness may be drawn but it’s not an essential prerequisite for wrongfulness.

Question 8

What are the 2 relevant questions that need to be asked in reference to control of a dangerous object?

Answer 8

1. Whether there was actual control?
2. Whether in light of inter alia such control, a legal duty rested on the defendant to take steps to prevent damage resulting from his or her omission to exercise proper control?

Question 9

Discuss knowledge and foresight of possible harm, as a factor that may determine the wrongfulness of an omission.

Answer 9

The fact that a person had knowledge or foresight that his omission might cause harm, is indicative of the unreasonableness and therefore wrongfulness of his conduct.

Question 10

Discuss rules of law as a factor that may determine the wrongfulness of an omission.

Answer 10

In certain instances, the law places an obligation upon a person to perform certain acts.

For example, common law land to provide lateral support for his neighbour’s land.

Should the neighbouring suffer damage as a result of their failure to perform thos duty, the conduct is primarily facile wrongful

Question 11

What’s the source of the “rules of law” (One of the factors for the test of liability for an ommision)

Answer 11

The source of rules of law can either be common law or statutory provisions

Question 12

Is a statutory provision as a stand alone sufficient to ensure the existence of a legal duty?

Answer 12

A statutory provision on it’s own is not necessarily sufficient to ensure the existence of a legal duty and is usually considered in interaction with other factors to determine the wrongfulness.

Question 13

What are some of the statutory provisions in south Africa regading “rules of law”

Answer 13

The South African Police Service Act Domestic violence Act

Question 14

Discuss special relationship as a factor that may determine the wrongfulness of an omission.

Answer 14

The existence of a special relationship between the parties may be an indication that the one party had a legal duty towards the other to prevent harm.

Question 15

What are some examples of a special relationship between parties

Answer 15

1. A relationship between a citizen and a policeman
2. A warden and a prisoner
3. An employer and an employee
4. Municipality and rate payer

Question 16

Over and above the special relationship between the parties, are there any other factors that we look at to determine omission?

Answer 16

Yes. We look the particular circumstances present (Such as the potential seriousness of the damage that may occur)

Therefore each case must be measured against the boni mores criterion in the light of all the circucstances, including the special relationship between the parties

Question 17

Discuss a particular office as a factor that may determine the wrongfulness of an omission.

Answer 17

Sometimes the person’s occupation or the office he holds places a legal duty upon him to conduct himself in a particular manner in relation to the public or certain people

Question 18

Discuss a contractual undertaking for the safety of a third party as a factor that may determine the wrongfulness of an omission.

Answer 18

An example of this factor would be a life-saver having a legal duty to rescue swimmers at a swimming pool or a beach.

Creation of impression that 3rd party interests will be protected:

• One party acts in reasonable reliance that other party will protect her property or person.
• Legal duty rests on party creating that impression.

Question 19

Discuss knowledge and foresight of possible harm as a factor that may determine the wrongfulness of an omission.

Answer 19

Person knew and foresaw that her omission might cause is indication of wrongfulness.

E.g. municipality being aware of blocked storm water pipe and further aware that overflow could damage property or municipality aware that traffic light is faulty but does not repair it.

Question 20

What is are statutory duties?

Answer 20

• The causing of damage by means of conduct in breach of a statutory duty is prima facie wrongful.
• The violation of the norm does not in itself constitute wrongfulness, rather it is the infringement of the interests of the plaintiff in a legally reprehensible manner which constitutes the wrongfulness.

Question 21

What court case supports statutory duty?

Answer 21

Patz vs Greene and Co.

Question 22

What constitutes wrongfulness in accordance to Patz v Greene and Co?

Answer 22

a. The relevant statutory measure provided the plaintiff with a private law remedy.
b. The plaintiff is a person for whose benefit and protection the statutory duty was imposed.
c. The nature of the harm and the manner in which it occurred as such as contemplated by the Act.
d. The defendant in fact transgressed the statutory provision.
e. There was a casual nexus between the transgression of the statutory provision and the harm.

Question 23

Relevant Case Law: Carmichele v Minister of Safety and Security.

Answer 23

The Constitution Court decided that the Court a quote and the Appeal Court both failed to apply the pre-constitutional test for wrongfulness in the context of the S39(2) of the Constitution, which provides that every court must promote the spirit, purport and objects of the Bill of Rights, when developing the common law.

Question 24

Relevant Case Law: Minister van Polisie v Ewels

Answer 24

The respondent claimed damages from the appellate on the ground that policemen in the service of the appellant failed to take steps to prevent the respondent from being assaulted and injured in their presence.

Question 25

Relevant Case Law: Cape Town Municipality v Bakkerud

Answer 25

The list of factors which could establish a legal duty to act positively is not exhaustive.

The test for the existence of a legal duty is whether the legal convictions of the community demand that the omission ought to be regarded as wrongful.

Statutory obligation to repair streets and sidewalks is not a prerequisite for wrongfulness.

Question 26

Relevant Case Law: Minister of Safety and Security v Van Duivenboden

Answer 26

The court held: whether or not a legal duty to act positively exists depends on the legal convictions of the community which must be evaluated against the Constitution.

Question 27

Relevant Case Law: Van Eden vs Minister of Safety and Security

Answer 27

The court held: whether or not a legal duty to act positively exists depends on the legal convictions of the community which must be evaluated against the Constitution.

Question 28

Name the 8 factors that could indicate Breach of a Legal Duty, thereby indicating wrongfulness by the defendant:

Answer 28

1 Prior Conduct
2 Control of a dangerous object / person / situation
3 Rules of Law
4 Special Relationship
5 Particular office
6 Contractual undertaking for the safety of a third party
7 Knowledge and foresight of possible harm
8 Creating the impression that the interest of a third party will be protected

Question 29

List the 8 factors or categories taken into account when determining wrongfulness of an omission.

Answer 29

8. Creation of the impression that the interests of a third party will be protected.

When one party acts in reasonable reliance on the impression created by another party that the latter will protect the person or property of the former, a legal duty rests upon the party creating the impression to prevent prejudice to the party acting in reliance on that impression.

Question 30

Relevant Case Law

Answer 30

Compass Motors Industries v Callguard

In this case - a security firm was in control of certain premises in performance of a contract to minimize the chance of theft and damage. The legal question was can the security firm be held liable for loss of property on the premises. The court held with reference to inter Alia policy considerations and the boni mores, that the defendant had a legal duty towards the plaintiff whose motor car was lawfully on the premises but that the defendant escaped liability due to the absence of negligence on his part.

Question 31

Deck Complied by:

Answer 31

Thokozani and Tumelo

Question 32

Discuss the factor of creating an impressions that interest of third party will be protected:

Answer 32

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Question 33

Names: Thokozani and Tumelo

Answer 33

Factors indicating breach of a legal duty

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