Neligence

Question 1

What is the main focus of negligence?

Answer 1

Negligence is concerned with whether the harm-causing conduct was unreasonable.

This differs from intention, which focuses on the mental state of the defendant.

Question 2

What is the necessary condition for wrongfulness in respect of conduct?

Answer 2

Some conduct may be prima facie wrongful if done intentionally, while prima facie lawful if done negligently.

Question 3

What is the test for negligence?

Answer 3

Would the reasonable person have foreseen the possibility of harm and refrained from the conduct?

This involves characterizing the reasonable person and determining foreseeability.

Question 4

What are the three forms of conduct relevant to the test for negligence?

Answer 4

• Doing something (e.g. firing a gun)
• Failure to do something (e.g. filling a hole)
• Doing something in a particular manner (e.g. driving recklessly)

Question 5

According to the test for negligence in SA law, when is conduct considered negligent?

Answer 5

Conduct is negligent if a reasonable person would have foreseen the possibility of harm and would not have performed it.

Question 6

What does the test for negligence in Kruger v Coetzee require?

Answer 6

A diligens paterfamilias would foresee the reasonable possibility of conduct injuring another and take reasonable steps to guard against it.

Question 7

In the case of Ben driving at 60km/h, was his conduct negligent?

Answer 7

Yes, because he failed to slow down despite the foreseeable risk of hitting a child.

Question 8

In the case of Jonathan and the rusted goalposts, was he negligent?

Answer 8

Yes, he was aware of the risk posed by the goalposts and failed to take action.

Question 9

What is the key inquiry according to Sea Harvest Corporation v Duncan Dock Cold Storage regarding negligence?

Answer 9

Whether the conduct in question falls short of the standard of the reasonable person.

Question 10

What does the term ‘reasonable possibility of harm’ imply?

Answer 10

It does not mean mere possibility; it must be substantial and not trivial.

Question 11

What is the difference between foreseeability and reasonable possibility of harm?

Answer 11

Foreseeability must lead a reasonable person to see it as a reason to refrain from conduct.

Question 12

What are the two sliding scales used to determine if a reasonable person would have acted differently?

Answer 12

• Probability of harm
• Severity of harm

Question 13

What factors does JC van der Walt suggest should be considered in determining negligence?

Answer 13

• Degree of risk created
• Gravity of consequences
• Utility of conduct
• Burden of taking precautions

Question 14

What formula can be used to determine if conduct is negligent according to Van der Walt’s analysis?

Answer 14

If P (probability of harm) x H (severity of harm) > B (burden of precautions), the conduct is negligent.

Question 15

What is the standard of the reasonable person according to the legal context?

Answer 15

A careful and prudent man who is alive to probable dangers.

Question 16

True or False: The reasonable person is characterized as someone who lives in excessive fear of harming others.

Answer 16

False

Question 17

Fill in the blank: The term for intentional harm-causing conduct is _______.

Answer 17

dolus

Question 18

Fill in the blank: Negligence is often referred to as _______.

Answer 18

culpa

Question 19

What does the term ‘diligens paterfamilias’ mean in the context of negligence?

Answer 19

A reasonable person standard that reflects a careful and prudent individual.

Question 20

How has the ‘reasonable person’ standard evolved according to case law?

Answer 20

It reflects moderation and prudent common sense without extremes.

Question 21

What does the legal principle suggest about the burden of precautions?

Answer 21

The burden must be weighed against the probability and severity of harm.

Question 22

What is a possible outcome if the burden of taking precautions outweighs the risk?

Answer 22

Failure to take measures to prevent harm is not considered negligent.

Question 23

What is the distinction between harm and loss?

Answer 23

Harm is the worsening of a person’s well-being; loss is the worsening of a person’s economic situation.

Question 24

Does the law take a harm-oriented or harm-and-loss oriented approach to determining negligence?

Answer 24

The law takes a harm-oriented approach.

Question 25

In the context of negligence, what does foreseeability refer to?

Answer 25

The reasonable possibility of conduct injuring another in his person or property and causing him patrimonial loss.

Question 26

How does the economic status of a victim affect the assessment of negligence?

Answer 26

A harm-and-loss-oriented approach would make negligence more significant if the victim is wealthy, compared to a less wealthy victim.

Question 27

What is the test formulated in Kruger regarding negligence?

Answer 27

The test engages with the foreseeability of harm, not the foreseeability of harm-and-loss.

Question 28

What do cases concerning pure economic loss fail to address?

Answer 28

They do not engage with the seriousness of the loss which the misstatement could foreseeably cause.

Question 29

What are the three sufficient conditions for applying the reasonable expert standard?

Answer 29

* Practicing a profession with the required expertise * Undertaking a task that requires expertise * Professed expertise to the harmed person

Question 30

What is the reasonable organ of state standard?

Answer 30

The test is not the reasonable person, but the reasonable organ of state.

Question 31

What are the two approaches to negligence discussed?

Answer 31

* Abstract approach * Relative approach

Question 32

In the abstract approach, what is sufficient for imposing liability?

Answer 32

Negligence in relation to a third party is sufficient for imposing liability.

Question 33

What is a necessary condition in the relative approach regarding negligence?

Answer 33

The conduct must be negligent in relation to the harm sufferer.

Question 34

What does the case of Kruger demonstrate about negligence?

Answer 34

It provides guidance on determining negligence based on the specific facts and circumstances of each case.

Question 35

How is negligence assessed in relation to the harm sufferer?

Answer 35

Negligence must be evaluated based on whether a reasonable person would have foreseen the possibility of harm to that specific individual.

Question 36

What is the significance of the case Mukheiber v Raath in negligence law?

Answer 36

It illustrates the application of the reasonable expert standard in determining negligence.

Question 37

True or False: A financial advisor owes a higher standard of care to a client with R50 million to invest than to a client with R10,000.

Answer 37

False

Question 38

Fill in the blank: The reasonable expert standard requires that a reasonable expert would have foreseen the _______ of harm.

Answer 38

reasonable possibility

Question 39

What does Fagan suggest could be a basis for determining negligence in pure economic loss cases?

Answer 39

Harm to a person’s interests in their freedom or autonomy.

Question 40

What does the reasonable person standard entail in negligence law?

Answer 40

It involves assessing whether a reasonable person would have acted differently to avoid foreseeable harm.

Question 41

What is the constitutional basis for determining the reasonable organ of state?

Answer 41

The steps to guard against harm depend on the availability of resources.

Question 42

What type of approach does our law take regarding the harm sufferer?

Answer 42

A relative approach.

Question 43

What is the implication of the reasonable expert's actions being assessed?

Answer 43

Expertise alone does not determine negligence; context and circumstances are crucial.

Question 44

In cases of negligence, what must the courts ultimately rely on?

Answer 44

The facts and circumstances of each case.

Question 45

What does the reasonable expert standard require beyond mere possession of expertise?

Answer 45

Contextual factors such as the nature of the task or the relationship with the harmed person.

Question 46

What is the crucial factor in assessing negligence according to the relative approach?

Answer 46

The foreseeability of harm to the specific victim.

Question 47

What is the necessary condition for conduct to be negligent in the requisite sense according to a relative approach?

Answer 47

Conduct must be negligent in respect of the harm sufferer

Question 48

What is the sufficient condition for conduct to be negligent in the requisite sense according to an abstract approach?

Answer 48

Conduct must be negligent in respect of a third party, not just the harm-sufferer

Question 49

In the case of The Premier of the Western Cape v Loots, what approach does the law adopt?

Answer 49

The law adopts a relative approach

Question 50

What did the court find in Mkhatswa v Minister of Defence regarding foreseeability of harm?

Answer 50

Defendant must have failed to guard against reasonably foreseeable harm to the plaintiff

Question 51

In Workmen’s Compensation v De Villiers, why was the defendant not liable for the carpenter's injuries?

Answer 51

Defendant could not have foreseen the carpenter behind the door

Question 52

What must be proven for A to be liable for B's emotional shock?

Answer 52

A must also be negligent in relation to B

Question 53

In RAF v Sauls, what is required for liability regarding emotional shock?

Answer 53

Foresight of the reasonable possibility of harm is required

Question 54

Fill in the blank: According to the relative approach, for negligence in the requisite sense, it is necessary that conduct was negligent in relation to the _______.

Answer 54

harm suffered

Question 55

Fill in the blank: According to the abstract approach, for negligence in the requisite sense, it is sufficient that the conduct was negligent in relation to _______.

Answer 55

some other harm

Question 56

What did the general pattern in Fagan Aquilian Liability illustrate regarding A's conduct?

Answer 56

A's conduct was not negligent in relation to B's harm X, but was negligent in relation to B's harm Y

Question 57

What did the court determine in cases like Russell regarding A's liability for further harm?

Answer 57

Negligence in respect of the initial harm was sufficient for liability

Question 58

What does the case law suggest about the approach taken regarding negligence?

Answer 58

It does not provide a clear answer and seems to adopt both relative and abstract approaches

Question 59

What does Mukheiber state as the test for culpa in light of the development of law?

Answer 59

A reasonable person would foresee harm of the general kind and take steps to guard against it

Question 60

According to Loots, what must be established for conduct to be deemed negligent?

Answer 60

Negligence must relate to specific consequences, not just general foreseeability

Question 61

Fill in the blank: A's act was negligent in relation to a manner in which B's harm could have occurred (by way of ______).

Answer 61

Y

Question 62

What does the case of Sea Harvest Corporation v Duncan Dock Cold Storage indicate about foreseeability?

Answer 62

The general manner of harm's occurrence must be reasonably foreseeable

Question 63

What does Fagan refer to as a qualified abstract approach?

Answer 63

The approach that does not require the precise manner of harm to be foreseeable

Question 64

In Mashongwa v Prasa, what was the key issue regarding the doors of the train?

Answer 64

The doors had been left open when the train left the station

Question 65

What is Proposition 1 regarding foreseeability in harm?

Answer 65

The exact manner in which harm occurred be reasonably foreseeable

Question 66

What is Proposition 2 regarding foreseeability in harm?

Answer 66

The general manner in which harm occurred be reasonably foreseeable

Question 67

How does Fagan describe the approach from the dicta?

Answer 67

Qualified abstract

Question 68

What does Fagan argue about Mashongwa v Prasa?

Answer 68

It rejects the second proposition by implication

Question 69

What specific incident occurred in the Mashongwa v Prasa case?

Answer 69

The doors of the train had been left open when the train left the station

Question 70

Was the passenger falling out of the train foreseeable?

Answer 70

Yes

Question 71

Was the passenger being thrown out of the train by criminals foreseeable?

Answer 71

No

Question 72

What did the court imply about the foreseeable and unforeseeable manners of harm?

Answer 72

They were not of the same general kind

Question 73

What does Fagan believe about the judgment in relation to legal approach?

Answer 73

It supports the proposition that law takes an abstract approach to the manner in which harm occurred

Question 74

What argument can be made about falling out of open doors and being thrown out?

Answer 74

They are causal sequences of the same general kind

Question 75

What approach does the harm-sufferer take according to the summary?

Answer 75

Relative approach

Question 76

What approach does the harm-suffered take according to the summary?

Answer 76

Relative approach (at least diluted/weakly relative)

Question 77

What is necessary for the harm suffered to be considered reasonably foreseeable?

Answer 77

The harm of the same general kind

Question 78

What does the law appear to take an abstract approach to?

Answer 78

Further harm, at least where initial harm and further harm take the form of bodily injuries

Question 79

What does CC authority lean towards regarding causal sequence?

Answer 79

Abstract approach

Question 80

What is the condition for the abstract approach to apply in CC authority?

Answer 80

The harm suffered is of the same general nature as the harm that was reasonably foreseeable

Question 81

What does SCA authority indicate regarding the approach to harm?

Answer 81

It indicates a contrary view to the abstract approach

Question 82

What does the case law provide regarding the overall picture of foreseeability?

Answer 82

It does not provide a tidy picture