Wrongfulness: Breach of a legal duty Flashcards
(i) Discuss breach of a legal duty as a test for wrongfulness. (ii) Identify and discuss the factors indicating the existence of a legal duty (iii) Discuss breach of a statutory duty (33 cards)
What is a legal duty?
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.
What’s the basic test for wrongfulness?
Boni Mores Test.
What is the Boni Mores test?
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.
What is the practical application of the boni mores?
- 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.
- Breach of a legal duty
Are omissions (failure to act) seen as wrongful?
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.
Discuss prior conduct as a factor that may determining the wrongfulness of an omission.
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.
Discuss control of a dangerous object / person / situation as a factor that may determine the wrongfulness of an omission.
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.
What are the 2 relevant questions that need to be asked in reference to control of a dangerous object?
- Whether there was actual control?
- 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?
Discuss knowledge and foresight of possible harm, as a factor that may determine the wrongfulness of an omission.
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.
Discuss rules of law as a factor that may determine the wrongfulness of an omission.
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
What’s the source of the “rules of law” (One of the factors for the test of liability for an ommision)
The source of rules of law can either be common law or statutory provisions
Is a statutory provision as a stand alone sufficient to ensure the existence of a legal duty?
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.
What are some of the statutory provisions in south Africa regading “rules of law”
The South African Police Service Act Domestic violence Act
Discuss special relationship as a factor that may determine the wrongfulness of an omission.
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.
What are some examples of a special relationship between parties
- A relationship between a citizen and a policeman
- A warden and a prisoner
- An employer and an employee
- Municipality and rate payer
Over and above the special relationship between the parties, are there any other factors that we look at to determine omission?
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
Discuss a particular office as a factor that may determine the wrongfulness of an omission.
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
Discuss a contractual undertaking for the safety of a third party as a factor that may determine the wrongfulness of an omission.
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.
Discuss knowledge and foresight of possible harm as a factor that may determine the wrongfulness of an omission.
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.
What is are statutory duties?
- 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.
What court case supports statutory duty?
Patz vs Greene and Co.
What constitutes wrongfulness in accordance to Patz v Greene and Co?
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.
Relevant Case Law: Carmichele v Minister of Safety and Security.
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.
Relevant Case Law: Minister van Polisie v Ewels
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.
