Wrongfulness Flashcards
What is the purpose of wrongfulness, and how do the courts apply it?
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.
What is the open-ended test for wrongfulness?
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?
When is certain conduct prima facie wrongful?
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).
What are some of the defences excluding unlawfulness?
a) authority
b) consent by the plaintiff
c) private defence
d) necessity
e) provocation
Elaborate more on a) authority
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
Elaborate more on b) consent by the plaintiff
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
Elaborate more on c) private defence
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
Elaborate more on d) necessity
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
Elaborate more on e) provocation
A defendant must establish:
a) that the provocation was not merely verbal, but physical and
b) that he or she acted immediately and reasonably
When is certain conduct prima facie lawful?
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.
What is the common/orthodox view of wrongfulness?
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.
How does Fagan view wrongfulness of intentional harm-causing conduct?
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.
How does Fagan view wrongfulness of negligent harm-causing conduct?
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
Provide a case summary of Telematrix
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.
Provide a case summary of Two Oceans Acquarium
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.
