The new wrongfulness test: A Trojan horse endangering delictual principles?

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In the case under discussion, a 13-year-old schoolboy, Jaco, was seriously injured in an extraordinary manner when he sat on a steel dropper on the school’s playground. The dropper was one of five, each of which had been placed by the school alongside one of five saplings planted within the playground. Jaco was impaled by the dropper, which tore through his rectum and bladder. He suffered pain and discomfort and required medical attention and surgery. A delictual action for damages on behalf of Jaco succeeded in the trial court. The trial judge pointed out that the existence of a legal duty on the part of the school to prevent injury to Jaco and the school’s failure to do so were common cause between the parties and not in dispute. Wrongfulness was thus not in issue. The school argued that negligence was absent because the specific manner in which the damage occurred – namely as a result of Jaco’s sitting on a steel dropper – had not been reasonably foreseeable. However, the court rightly held that in our law it is sufficient for negligence if damage in general, in contrast with the specific harmful result or the precise manner in which it occurred, was reasonably foreseeable. In this case it was indeed reasonably foreseeable that children could be injured by playing in the vicinity of a steel dropper in an area where children run and play. In addition, a reasonable person would not have placed a steel dropper in that area and would have secured the tree in a less hazardous manner. Negligence was therefore also present.

This was, however, not the end of the investigation. Strangely enough, despite the fact that wrongfulness was already present, the trial court found it necessary to revisit the wrongfulness issue. With reference to the new test for wrongfulness, as formulated in Hawekwa Youth Camp v Byrne 2010 6 SA 83 (SCA), the court enquired whether, in view of legal and public policy considerations in accordance with constitutional norms, the (already existing) legal duty was in fact present, and declared that an omission will be regarded as wrongful only if public policy requires that the defendant should be held liable. The new test for wrongfulness was therefore applied as an “additional” test to determine whether, on policy grounds, an already existing wrongfulness was actually present. In the end, the school was held liable. Jaco was, however found contributorily negligent, with the result that the court made an award for damages for 80% of the proven loss.

The school’s appeal to the Supreme Court of Appeal was based on the argument that the trial court had erred in not having sufficient regard to wrongfulness as a requirement for delictual liability (par. 14). The school contended, once again utilising the wording of the new test for wrongfulness (as formulated in, inter alia, Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 3 SA 274 (CC) par. 122 and Hawekwa), that in the present case public policy considerations demand that, in view of the most extraordinary and peculiar act of Jaco when he sat on a dropper, liability should not be extended to the school. Therefore the new wrongfulness test was embraced also in the Supreme Court of Appeal to revisit wrongfulness after its existence had already been accepted by both parties and the matter could thus have been regarded as settled. This was achieved by asking an additional question, namely whether the defendant, in the light of the strange and extraordinary manner in which the loss had occurred, should, for reasons of policy, be held liable or not.

Both courts utilised the new test for wrongfulness as a Trojan horse to bring the extraordinary manner in which the loss occurred through the back door of the wrongfulness issue in order to ask whether wrongfulness, despite its having been already determined, had in fact been present because of the reasonableness to hold the defendant liable in the circumstances on grounds of policy.

This approach by the courts undermines the substance of the wrongfulness inquiry, denatures the wrongfulness element and violates the sound structure and principles of the law of delict. It is in any event not clear whether the new test for wrongfulness was ever intended to requestion wrongfulness after the parties had agreed that a legal duty existed and had not been adhered to. Nevertheless, the almost bizarre manner in which the new test for wrongfulness was embraced in the cases under discussion, albeit without success, is an example of how this test, in the words of Scott (2015:433), “is running out of control” and an indication of the damage and confusion that this unnecessary approach to wrongfulness can cause to the law of delict. (For general criticism of the new test, see Neethling and Potgieter 2015:84–90.)

Where the delictual liability of an actor who has acted wrongfully and negligently is questioned on the grounds of the extraordinary manner in which the loss occurred, it makes more sense to investigate this consideration under the banner of legal causation, instead of attempting to revisit wrongfulness. The rich jurisprudence and case law on legal causation, where the flexible approach and subsidiary considerations such as reasonable foreseeability and novus actus interveniens can play a role, offer a better opportunity and a sounder theoretical basis to consider whether an extraordinary course of events should lead to the exclusion of delictual liability.

Keywords: causation; contributory negligence; damage; damages; dangerous situation; delict; extraordinary course of events; flexible approach; foreseeability; injury; legal causation; legal duty; legal policy; negligence; new wrongfulness test; novus actus interveniens; omission; playground; policy; public policy; reasonable foreseeability; reasonable person; reasonable teacher; school; wrongfulness

Lees die volledige artikel in Afrikaans: Die nuwe onregmatigheidstoets: ’n Trojaanse perd wat delikteregbeginsels bedreig?

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