In contradistinction to previous judgments of Brand JA, in this case he was willing to reconcile the traditional boni mores test for wrongfulness with the new test for wrongfulness as the reasonableness of holding the defendant liable. Both tests place the emphasis on considerations of policy which, closely examined, would ultimately produce the same result. But this does not mean that the objections against the new test would also disappear; especially the statement that the reasonableness of the defendant’s conduct has nothing to do with wrongfulness, cannot be justified.
The policy considerations or factors which were considered in casu to determine whether the respondents’ (SSs’) omission was wrongful, that is, whether there was a legal duty on SS to prevent the appellant’s (B’s) injuries when she was flying tandem paragliding for reward, were the following: On the positive side there was a statutory duty to act which made SS accountable – notwithstanding that compliance with this duty would not have prevented the accident in which B was injured. On the negative side it would have been very difficult for SS to take adequate steps to prevent tandem paragliding for reward; there was a danger of boundless liability; and the plaintiff was not vulnerable to the risk of damage, since she could reasonably have prevented damage by other means. Since our courts follow a conservative approach to the extension of Aquilian liability and there were not sufficient positive policy considerations to justify liability, the conclusion that the omission was not wrongful deserves support. Then the basic premise of our law is that damage lies where it falls (res perit domino).
The court’s obiter remarks on factual and legal causation can also be supported. The former was absent because even if B flew without reward it would not have prevented the accident, and the latter because the “wrongful” omission would not have increased the risk of an accident.
Keywords: accountability; boni mores; boundless liability; causation; conservative approach; factors; grounds of justification; legal duty; neighbour law; omission; policy considerations; reasonableness of conduct; reasonableness of holding defendant liable; res perit domino; statutory duty; tandem-paragliding; tests for wrongfulness; vulnerability to risk of damage; wrongfulness
Lees die volledige artikel in Afrikaans: Aanspreeklikheid weens ’n late: Versoening tussen die tradisionele en nuwe toets vir deliktuele onregmatigheid, of nie?