Delictual liability for an omission: wrongfulness and negligence

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In contrast with South African Hang and Paragliding Association v Bewick 2015 3 SA 449 (SCA), in which Brand JA seemed willing to reconcile the traditional boni mores test with the controversial new test for wrongfulness as the reasonableness to hold the defendant liable, in the Za case he almost exclusively applied the new test.

It is unfortunate that the judge set the traditional test aside, as the reconciliatory approach has increasingly come to the fore in recent decisions of the constitutional court where the new test has not been applied exclusively and at the expense of the traditional test, but the boni mores legal-duty approach and the new test are utilised under the same umbrella, as it were, to determine wrongfulness.

Because Brand JA advocated the new test for wrongfulness so strongly, his handling of the distinction between the traditional test for wrongfulness and that for negligence, suggesting that the two tests could cause confusion, is subject to criticism. If the essential functions of these two delictual elements are kept in mind, namely, in the case of wrongfulness of and omission, whether there was a legal duty on the actor to prevent harm by positive conduct, and if so, in the case of negligence, whether the reasonable person would have foreseen damage and taken steps to prevent it, there can be no question of confusion.

Brand JA, following in the footsteps of the established approach to the wrongfulness of an omission, strangely enough, took into consideration the following two factors in order to determine whether wrongfulness was present: the fact that the defendants had control over a dangerous object and that they had knowledge of or foresaw that their omission could cause damage.

Lastly, the court’s treatment of negligence (the reasonable person test) and factual causation (the conditio sine qua non approach) can be supported.

Keywords: boni mores; causation; conditio sine qua non; control over a dangerous object;delict; knowledge and foreseeability; legal duty; loss of support; negligence; new test for wrongfulness; omission; policy considerations; reasonableness; reasonable person; traditional test for wrongfulness; wrongfulness

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