Table of Contents
[Damnum iniuria datum]..........................................................................................................................................2
Elements:..................................................................................................................................................................2
1. Fault......................................................................................................................................................................2
I. Negligence:....................................................................................................................................................2
2. Intention.........................................................................................................................................................11
Intention is sometimes a necessary condition for liability..................................................................................11
Higher likelihood of wrongfulness..................................................................................................................12
Exclusion of cost-benefit reasoning:...............................................................................................................13
The Nature and Content of the Intention required for Liability:.....................................................................14
3. Wrongfulness......................................................................................................................................................17
Fagan's Analysis of Wrongfulness in Delict Textbooks........................................................................................18
Wrongs Committed by Negligently Causing Harm:.............................................................................................19
Law Determining When Negligent Harm-Causing Conduct was Wrongful.........................................................21
Deeper-Lying Considerations Determining When Negligent Harm-Causing was Wrongful................................25
Wrongfulness Committed by Intentionally Causing Harm:.................................................................................29
Breach of Duty not to cause harm intentionally-............................................................................................29
Law Determining When Intended Harm-Causing Was Wrongful:.......................................................................31
Deeper-Lying Considerations Determining When Intended Harm-Causing Was Wrongful................................37
3. Causation & Remoteness....................................................................................................................................37
Causation............................................................................................................................................................39
(Non-)Remoteness..............................................................................................................................................42
1. Loss caused by the further harm to the victim...........................................................................................43
2. Loss caused by further harm to a third party..............................................................................................44
3. Loss directly caused to the victim of the wrong:.........................................................................................45
Tests for Causation.........................................................................................................................................47
Cases....................................................................................................................................................................... 49
, Aquillian Liability
[Damnum iniuria datum]
Pages ix – xxxii; 2-12
Sometimes called damnum iniuria datum or ‘loss wrongfully caused’.
Rule:
“If a person committed a legally recognised wrong against another, by intentionally or negligently causing
harm to her person or property in breach of a legally recognised non-contractual duty owed to her not to do
so, and, by committing such wrong, caused the victim of the wrong to suffer loss which was not too remote,
then he owed the victim of the wrong a legal duty to compensate her for that loss.”
Rule broken down
o The person must have harmed someone or damaged their property.
o The harm must have been their fault, either on purpose or by mistake.
o They must have violated a legal duty not to cause harm through their actions, which caused harm to the
other person.
o The harm must have resulted in a loss or negative consequences for the affected person.
o The loss caused by the harm must not be too distant or unrelated to the person's actions.
In summary, there are seven important factors in determining liability: harm, actions, fault, wrongdoing, loss,
causation (of harm or loss), and proximity (of the loss).
Elements:
1. Fault
Negligence
To hold someone accountable for causing harm to another person, they must either have intended to cause
harm or caused it through negligence. The legal perspective places greater importance on intentional harm
compared to negligent harm. Some types of harmful actions are considered wrongful when done intentionally
but not necessarily wrongful when done negligently.
Determining negligence involves considering whether a reasonable person in a similar situation would have
anticipated the possibility of causing harm and refrained from the action. However, the question of negligence
can be complex, especially regarding how specific it needs to be. For example, if the negligent person did not
foresee the harm to a particular individual (like oneself) but harmed someone else, it becomes unclear if their
negligence is enough for liability.
Negligence is evaluated based on a reasonable standard, while intention is determined by the person's mental
state. Both negligence and intention fulfill the necessary condition of fault for accountability, with no
significant attempts to establish fault beyond these concepts.
Responsibility and blameworthiness are different. Responsibility lies between causation and blame,
which means that someone can be held responsible for an outcome without being entirely blamed for
it.
Pages 13-46
I. Negligence:
Introduction [Kruger v Coetzee- K v C]
Liability for unintentional harm requires proving negligence. The negligence test examines foreseeability of
harm and refraining from harmful actions. Negligence can involve acts, omissions, or specific manner of
,conduct. The Kruger test focuses on foreseeability of harm caused by conduct manner, but has limitations. A
revised test is proposed to consider foreseeability of harm caused by the act itself. Surrounding circumstances
must be considered to assess negligence accurately, as it varies depending on the specific situation.
The subsidiary tests for negligence can be summarized as follows:
1. Doing X is negligent if a reasonable person in that position would have foreseen the possibility of
causing harm by doing X and would not have done it.
2. Failing to do X is negligent if a reasonable person in that position would have foreseen the possibility of
causing harm by not doing X and would have done it.
3. Doing X in manner Y is negligent if a reasonable person in that position would have foreseen the
possibility of causing harm by doing X in manner Y and would have done X differently.
The Kruger v Coetzee case is an authority for the test of negligence in South African law. It states that
negligence arises when a careful person in the defendant's position would foresee the reasonable possibility of
causing harm to another and take reasonable steps to prevent it, but the defendant fails to do so.
However, the Kruger test is only applicable to the third form of conduct, doing X in manner Y. It cannot be used
to determine negligence in the mere doing or failure to do something. There are some problematic aspects of
the Kruger test, and a revised formulation is proposed to consider the foreseeability of harm caused by the act
itself and the manner of conduct. [FAGAN Commentary]
The Reasonable person test
The test in Kruger v Coetzee for determining negligence can be summarized as follows: Conduct is considered
negligent if a reasonable person in the same position would have foreseen the reasonable possibility of
causing harm to another and, as a result, would not have performed that conduct.
However, there is another test that is frequently used in determining negligence, which differs from the Kruger
test in a small yet significant respect. This alternative test measures the conduct against what would have
been done by a reasonable person with specialized expertise that is not generally possessed. It assesses
whether a reasonable expert would have foreseen the possibility of harm and acted differently as a result.
Binding Nature of Kruger Test:
The binding nature of the Kruger test has been a subject of debate. The Sea Harvest case emphasized that
there is no universally applicable formula for negligence and that flexibility is needed to accommodate cases
with gray areas. This led to the interpretation that the Kruger test may not be binding but rather a guideline,
and a court is free to determine negligence based on the general question of whether the conduct fell short of
the standard observed by a reasonable person in the same circumstances.
However, it is argued that the Kruger test is firmly entrenched in South African law and is a binding and
conclusive test. Several subsequent judgments, including those that interpreted it differently, explicitly applied
the Kruger test to determine negligence. While it may not be considered conclusive and binding in the sense of
precluding departures in exceptional circumstances, it carries precedential force and is widely regarded as the
authoritative test for negligence. This view is also supported by a Constitutional Court case, Loureiro v iMvula
Quality Protection, which affirmed the continuing authority of the Kruger test.
Who is the Reasonable person? [Ngubane v SATS]
Determining the reasonable person (RP) is essential in negligence cases. The RP is not an ordinary or average
person, but rather a diligent and prudent individual who takes appropriate care. Recent judgments have
rejected the notion that the RP should be overly preoccupied with the potential harm caused to others.
Instead, the focus is on a person who displays moderation, common sense, and a reasonable level of caution in
their actions.
Would a RP would have foreseen a reasonable possibility of harm?
, To establish negligence, it is necessary for a reasonable person to have foreseen a reasonable possibility
of causing harm.
"Foreseen" does not have a unique technical meaning and can be interchanged with terms like
"anticipate" or "expect."
A reasonable possibility of harm is more than a mere possibility, requiring a higher threshold of likelihood
or probability. It is not enough to foresee any harm; it must be reasonably possible.
Foresight of a mere possibility is insufficient.
o The harm qualifies as a reasonable possibility if a reasonable person, having foreseen it, would see it as a
reason to refrain from the conduct.
o This interpretation preserves the independence of the negligence questions and allows for determining
reasons against certain conduct without requiring conclusive reasons that outweigh all others.
Would a RP have acted differently?
In determining negligence, it is also important to assess whether a reasonable person, upon foreseeing such
harm, would have chosen to abstain from engaging in that particular conduct.
Schreiner introduces two factors to consider: the seriousness of the potential harm and the likelihood of
its occurrence.
Building upon this, Van de Walt identifies four elements that influence how a reasonable person would
respond in situations where there is a foreseeable risk of harm to others.
a. the extent of risk created (P for probability/ likelihood of risk materializing)
b. the severity of potential consequences (or-)
c. the usefulness of the action (H for Harm)
d. the effort or disadvantage involved in eliminating the risk (B for Burden of avoiding the risk)
The magnitude of the risk (a x b) should be balanced against the benefits of the action and the difficulties in
avoiding it or taking precautionary measures (c and/or d).
o [a x b weighed up against c & d]
If the risk outweighs the benefits, a reasonable person would take precautions to prevent harm, and failing to
do so would indicate negligence.
Conversely, if the burden of eliminating the risk is greater than the potential harm, a reasonable person would
not be expected to take action to prevent the foreseeable harm.
Said in a different way - Schreiner’s approach [the approach taken by the courts:
P = probability of harm
H = seriousness/gravity of harm should it occur
B = burden of taking precaution
iIf reasonable person foresees the possibility of causing harm to another through their actions, refraining from
performing that conduct would be considered negligent if the product of the probability of harm (P) and the
seriousness of harm (H) is greater than the burden (B) associated with taking precautions.
o Negligence= B< P x H (or PxH> B)
The approach taken by Van de Walt includes the consideration of the utility (U) of the conduct, but this is
essentially a difference in terminology since the cost/burden of taking precautions already accounts for the
utility. Van de Walt establishes that P x H > B is both a necessary and sufficient condition for conduct to be
considered negligent, provided that a reasonable person would foresee the reasonable possibility of harm. In
contrast,
Schreiner's approach does not arrange P, H, and B into a necessary and sufficient condition for negligence.
Schreiner presents them as factors to be considered and leaves open the possibility that negligence may
depend on other factors as well.
[Damnum iniuria datum]..........................................................................................................................................2
Elements:..................................................................................................................................................................2
1. Fault......................................................................................................................................................................2
I. Negligence:....................................................................................................................................................2
2. Intention.........................................................................................................................................................11
Intention is sometimes a necessary condition for liability..................................................................................11
Higher likelihood of wrongfulness..................................................................................................................12
Exclusion of cost-benefit reasoning:...............................................................................................................13
The Nature and Content of the Intention required for Liability:.....................................................................14
3. Wrongfulness......................................................................................................................................................17
Fagan's Analysis of Wrongfulness in Delict Textbooks........................................................................................18
Wrongs Committed by Negligently Causing Harm:.............................................................................................19
Law Determining When Negligent Harm-Causing Conduct was Wrongful.........................................................21
Deeper-Lying Considerations Determining When Negligent Harm-Causing was Wrongful................................25
Wrongfulness Committed by Intentionally Causing Harm:.................................................................................29
Breach of Duty not to cause harm intentionally-............................................................................................29
Law Determining When Intended Harm-Causing Was Wrongful:.......................................................................31
Deeper-Lying Considerations Determining When Intended Harm-Causing Was Wrongful................................37
3. Causation & Remoteness....................................................................................................................................37
Causation............................................................................................................................................................39
(Non-)Remoteness..............................................................................................................................................42
1. Loss caused by the further harm to the victim...........................................................................................43
2. Loss caused by further harm to a third party..............................................................................................44
3. Loss directly caused to the victim of the wrong:.........................................................................................45
Tests for Causation.........................................................................................................................................47
Cases....................................................................................................................................................................... 49
, Aquillian Liability
[Damnum iniuria datum]
Pages ix – xxxii; 2-12
Sometimes called damnum iniuria datum or ‘loss wrongfully caused’.
Rule:
“If a person committed a legally recognised wrong against another, by intentionally or negligently causing
harm to her person or property in breach of a legally recognised non-contractual duty owed to her not to do
so, and, by committing such wrong, caused the victim of the wrong to suffer loss which was not too remote,
then he owed the victim of the wrong a legal duty to compensate her for that loss.”
Rule broken down
o The person must have harmed someone or damaged their property.
o The harm must have been their fault, either on purpose or by mistake.
o They must have violated a legal duty not to cause harm through their actions, which caused harm to the
other person.
o The harm must have resulted in a loss or negative consequences for the affected person.
o The loss caused by the harm must not be too distant or unrelated to the person's actions.
In summary, there are seven important factors in determining liability: harm, actions, fault, wrongdoing, loss,
causation (of harm or loss), and proximity (of the loss).
Elements:
1. Fault
Negligence
To hold someone accountable for causing harm to another person, they must either have intended to cause
harm or caused it through negligence. The legal perspective places greater importance on intentional harm
compared to negligent harm. Some types of harmful actions are considered wrongful when done intentionally
but not necessarily wrongful when done negligently.
Determining negligence involves considering whether a reasonable person in a similar situation would have
anticipated the possibility of causing harm and refrained from the action. However, the question of negligence
can be complex, especially regarding how specific it needs to be. For example, if the negligent person did not
foresee the harm to a particular individual (like oneself) but harmed someone else, it becomes unclear if their
negligence is enough for liability.
Negligence is evaluated based on a reasonable standard, while intention is determined by the person's mental
state. Both negligence and intention fulfill the necessary condition of fault for accountability, with no
significant attempts to establish fault beyond these concepts.
Responsibility and blameworthiness are different. Responsibility lies between causation and blame,
which means that someone can be held responsible for an outcome without being entirely blamed for
it.
Pages 13-46
I. Negligence:
Introduction [Kruger v Coetzee- K v C]
Liability for unintentional harm requires proving negligence. The negligence test examines foreseeability of
harm and refraining from harmful actions. Negligence can involve acts, omissions, or specific manner of
,conduct. The Kruger test focuses on foreseeability of harm caused by conduct manner, but has limitations. A
revised test is proposed to consider foreseeability of harm caused by the act itself. Surrounding circumstances
must be considered to assess negligence accurately, as it varies depending on the specific situation.
The subsidiary tests for negligence can be summarized as follows:
1. Doing X is negligent if a reasonable person in that position would have foreseen the possibility of
causing harm by doing X and would not have done it.
2. Failing to do X is negligent if a reasonable person in that position would have foreseen the possibility of
causing harm by not doing X and would have done it.
3. Doing X in manner Y is negligent if a reasonable person in that position would have foreseen the
possibility of causing harm by doing X in manner Y and would have done X differently.
The Kruger v Coetzee case is an authority for the test of negligence in South African law. It states that
negligence arises when a careful person in the defendant's position would foresee the reasonable possibility of
causing harm to another and take reasonable steps to prevent it, but the defendant fails to do so.
However, the Kruger test is only applicable to the third form of conduct, doing X in manner Y. It cannot be used
to determine negligence in the mere doing or failure to do something. There are some problematic aspects of
the Kruger test, and a revised formulation is proposed to consider the foreseeability of harm caused by the act
itself and the manner of conduct. [FAGAN Commentary]
The Reasonable person test
The test in Kruger v Coetzee for determining negligence can be summarized as follows: Conduct is considered
negligent if a reasonable person in the same position would have foreseen the reasonable possibility of
causing harm to another and, as a result, would not have performed that conduct.
However, there is another test that is frequently used in determining negligence, which differs from the Kruger
test in a small yet significant respect. This alternative test measures the conduct against what would have
been done by a reasonable person with specialized expertise that is not generally possessed. It assesses
whether a reasonable expert would have foreseen the possibility of harm and acted differently as a result.
Binding Nature of Kruger Test:
The binding nature of the Kruger test has been a subject of debate. The Sea Harvest case emphasized that
there is no universally applicable formula for negligence and that flexibility is needed to accommodate cases
with gray areas. This led to the interpretation that the Kruger test may not be binding but rather a guideline,
and a court is free to determine negligence based on the general question of whether the conduct fell short of
the standard observed by a reasonable person in the same circumstances.
However, it is argued that the Kruger test is firmly entrenched in South African law and is a binding and
conclusive test. Several subsequent judgments, including those that interpreted it differently, explicitly applied
the Kruger test to determine negligence. While it may not be considered conclusive and binding in the sense of
precluding departures in exceptional circumstances, it carries precedential force and is widely regarded as the
authoritative test for negligence. This view is also supported by a Constitutional Court case, Loureiro v iMvula
Quality Protection, which affirmed the continuing authority of the Kruger test.
Who is the Reasonable person? [Ngubane v SATS]
Determining the reasonable person (RP) is essential in negligence cases. The RP is not an ordinary or average
person, but rather a diligent and prudent individual who takes appropriate care. Recent judgments have
rejected the notion that the RP should be overly preoccupied with the potential harm caused to others.
Instead, the focus is on a person who displays moderation, common sense, and a reasonable level of caution in
their actions.
Would a RP would have foreseen a reasonable possibility of harm?
, To establish negligence, it is necessary for a reasonable person to have foreseen a reasonable possibility
of causing harm.
"Foreseen" does not have a unique technical meaning and can be interchanged with terms like
"anticipate" or "expect."
A reasonable possibility of harm is more than a mere possibility, requiring a higher threshold of likelihood
or probability. It is not enough to foresee any harm; it must be reasonably possible.
Foresight of a mere possibility is insufficient.
o The harm qualifies as a reasonable possibility if a reasonable person, having foreseen it, would see it as a
reason to refrain from the conduct.
o This interpretation preserves the independence of the negligence questions and allows for determining
reasons against certain conduct without requiring conclusive reasons that outweigh all others.
Would a RP have acted differently?
In determining negligence, it is also important to assess whether a reasonable person, upon foreseeing such
harm, would have chosen to abstain from engaging in that particular conduct.
Schreiner introduces two factors to consider: the seriousness of the potential harm and the likelihood of
its occurrence.
Building upon this, Van de Walt identifies four elements that influence how a reasonable person would
respond in situations where there is a foreseeable risk of harm to others.
a. the extent of risk created (P for probability/ likelihood of risk materializing)
b. the severity of potential consequences (or-)
c. the usefulness of the action (H for Harm)
d. the effort or disadvantage involved in eliminating the risk (B for Burden of avoiding the risk)
The magnitude of the risk (a x b) should be balanced against the benefits of the action and the difficulties in
avoiding it or taking precautionary measures (c and/or d).
o [a x b weighed up against c & d]
If the risk outweighs the benefits, a reasonable person would take precautions to prevent harm, and failing to
do so would indicate negligence.
Conversely, if the burden of eliminating the risk is greater than the potential harm, a reasonable person would
not be expected to take action to prevent the foreseeable harm.
Said in a different way - Schreiner’s approach [the approach taken by the courts:
P = probability of harm
H = seriousness/gravity of harm should it occur
B = burden of taking precaution
iIf reasonable person foresees the possibility of causing harm to another through their actions, refraining from
performing that conduct would be considered negligent if the product of the probability of harm (P) and the
seriousness of harm (H) is greater than the burden (B) associated with taking precautions.
o Negligence= B< P x H (or PxH> B)
The approach taken by Van de Walt includes the consideration of the utility (U) of the conduct, but this is
essentially a difference in terminology since the cost/burden of taking precautions already accounts for the
utility. Van de Walt establishes that P x H > B is both a necessary and sufficient condition for conduct to be
considered negligent, provided that a reasonable person would foresee the reasonable possibility of harm. In
contrast,
Schreiner's approach does not arrange P, H, and B into a necessary and sufficient condition for negligence.
Schreiner presents them as factors to be considered and leaves open the possibility that negligence may
depend on other factors as well.
