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TESTE DEIN WISSEN

According to the but-for test for causation, which was endorsed by both Corbett JA and Viljoen AJA in Minister of Police v Skosana, event X was a cause of event Y if and only if, had event Y not occurred, event X would not have occurred either.

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TESTE DEIN WISSEN

False

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TESTE DEIN WISSEN

In Kruger v Coetzee the AD held that the defendant had not been negligent, because a diligens paterfamilias (reasonable person) in his position would not have foreseen the possibility of his horses straying through the open gate on to the main road and causing damage to motor cars which might collide with them.

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TESTE DEIN WISSEN

False

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TESTE DEIN WISSEN

An injurious falsehood is not wrongful unless: the person stating the falsehood knew it to be false and intended that others should act in reliance upon it; others did rely upon it and did so to the detriment of the person whom the falsehood was about.

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TESTE DEIN WISSEN

True

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TESTE DEIN WISSEN

It is prima facie lawful to cause physical harm to another’s person or property by a positive act that was intended to do so, unless the harm was caused with the harmed person’s consent.


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TESTE DEIN WISSEN

False

Its prima facie wrongful to cause physical harm to another’s person or property by a positive act that was intended to do so

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TESTE DEIN WISSEN

Fagan, Aquilian Liability, claims that, in the example below, my interest that I have in my autonomy provides a reason for me to read rather than to volunteer: I spend a Saturday morning reading Winnie-the-Pooh to my child. I could have spent the morning volunteering at the desperately understaffed local branch of the Society for the Prevention of Cruelty to Animals (the SPCA).

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TESTE DEIN WISSEN

False

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TESTE DEIN WISSEN

For a person to be subjected to Aquilian liability in terms of the basic rule it is sufficient, but not necessary, that he negligently or intentionally caused harm and loss to another.

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TESTE DEIN WISSEN

False

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TESTE DEIN WISSEN

It is prima facie lawful for a person to cause physical harm to another’s person or property by a negligent omission.

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TESTE DEIN WISSEN

True

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TESTE DEIN WISSEN

In Minister van Polisie v Ewels, our AD announced that a negligent harm-causing omission could be declared wrongful by a court only if one of the further facts previously identified by the law obtained.

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TESTE DEIN WISSEN

False 

Could be declared wrongful by a court, even though none of the further facts previously identified by law obtained, if ‘the legal convictions of the community’ requires this.

Lösung ausblenden
TESTE DEIN WISSEN

The test for negligence is frequently referred to simply as ‘the test in Kruger v Coetzee’.

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TESTE DEIN WISSEN

True

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TESTE DEIN WISSEN

Sea Harvest Corporation v Duncan Dock Cold Storage 2000 (SCA)

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TESTE DEIN WISSEN

TOPIC 

Negligence


FACTS 

  • Recently built cold store (owned by first respondent, on land of second respondent) set alight and destroyed by a flare fired to celebrate the New Year. 
  • Contents included goods owned by first and second appellants → stored in terms of oral contracts of deposit.
  • Appellants alleged that the respondents had been negligent in failing to install a sprinkler system
  • Provincial Division dismissed appellants’ claims


ISSUE 

  • Whether the project engineer was negligent in failing to install a sprinkler system 
  • Whether the port engineer’s failure to insist upon its installation had been both wrongful and negligent


REASONING

Relative vs Abstract Theory of Negligence

  • Relative Theory of Negligence: Whether the relative theory of negligence (are the general nature and general manner of occurrence of the consequences reasonably foreseeable?) (Mukheiber v Raath 1999). 
  • Abstract Theory of Negligence: Is any harmful consequence foreseeable? (Kruger v Coetzee 1966) 


The Test for Negligence 

The majority considered the test for negligence as developed in Kruger and redeveloped in Mukheiber: 

  1. A reasonable person in the position of the defendant 
    1. Would foresee the harm of the general type that actually occurred 
    2. Would foresee the general type of causal consequence by which that har occurred 
    3. Would have taken steps to guard against it 
  2. The defendant failed to take those steps


The court found that whichever theory was adopted, ULTIMATELY negligence is determined by whether the conduct complained of fell short of the standard of the reasonable person → there should always be a measure of flexibility to accommodate ‘grey area’ cases: 

  • Acknowledges the need for various limitations to the broadness of the enquiry where circumstances require
  • While the precise or exact manner in which the harm had occurred need not have been foreseeable, the general manner of its occurrence had to have been reasonably foreseeable


Foreseeability of the Fire 

No doubt that, as a general possibility, a fire in the cold store had reasonably been foreseeable: 

  • Fire extinguishers and hose reels were installed to guard against this 
  • What would, typically, have been reasonably foreseeable would have been the possibility of a fire starting somewhere in the building itself BUT what actually occurred was something entirely different. 
  • To equate it in the determination of culpability with just any fire could attribute culpability for damage resulting from a danger which actually had not been foreseeable as a reasonable possibility. 


Determining Culpability 

  • Culpability had to be determined not simply by asking whether any fire had been foreseeable BUT whether a reasonable person in the position of the project engineer/port engineer would have foreseen the danger of fire emanating from an external source on the roof of the building with sufficient intensity to ignite the gutter.


Given that –

  • The building was relatively isolated 
  • There was nothing about its locality rendering it more vulnerable to fire 
  • The region was not prone to lightning of the kind which would set fire to buildings save for a burning flare, 


it was difficult to conceive of any other source of fire which could have set the roof alight from above. 

Even if the project engineer and port engineer had known of the practice of firing flares to celebrate the New Year, the possibility of a flare landing while still burning and setting fire to the gutter of a building constructed with an otherwise non-combustible shell was so remote as not to have been reasonably foreseeable. 


The evidence had established that 

  • The danger of fire emanating from an external source on the roof of the building with sufficient intensity to ignite the gutter had not been reasonably foreseeable 
  • A reasonable person in the position of the project engineer and port engineer would not have foreseen the danger as real enough to warrant precautionary measures


CONCLUSION 

The appeal was accordingly dismissed. The decision in the Cape Provincial Division is confirmed. 


NOTE 

The SCA reiterated that the benchmark for negligence is what a reasonable person would have done in the same circumstances as the defendant.

Lösung ausblenden
TESTE DEIN WISSEN

According to the so-called ‘but-for’ test, event X was not the cause of event Y if, even if event X had not occurred, event Y would still have occurred.

Lösung anzeigen
TESTE DEIN WISSEN

True

Lösung ausblenden
TESTE DEIN WISSEN

A person can be subjected to Aquilian liability in terms of the basic rule only if he committed a wrong against another by intentionally or negligently causing harm to her in breach of a legally recognised duty owed to her not to do so.

Lösung anzeigen
TESTE DEIN WISSEN

True

Lösung ausblenden
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Q:

According to the but-for test for causation, which was endorsed by both Corbett JA and Viljoen AJA in Minister of Police v Skosana, event X was a cause of event Y if and only if, had event Y not occurred, event X would not have occurred either.

A:

False

Q:

In Kruger v Coetzee the AD held that the defendant had not been negligent, because a diligens paterfamilias (reasonable person) in his position would not have foreseen the possibility of his horses straying through the open gate on to the main road and causing damage to motor cars which might collide with them.

A:

False

Q:

An injurious falsehood is not wrongful unless: the person stating the falsehood knew it to be false and intended that others should act in reliance upon it; others did rely upon it and did so to the detriment of the person whom the falsehood was about.

A:

True

Q:

It is prima facie lawful to cause physical harm to another’s person or property by a positive act that was intended to do so, unless the harm was caused with the harmed person’s consent.


A:

False

Its prima facie wrongful to cause physical harm to another’s person or property by a positive act that was intended to do so

Q:

Fagan, Aquilian Liability, claims that, in the example below, my interest that I have in my autonomy provides a reason for me to read rather than to volunteer: I spend a Saturday morning reading Winnie-the-Pooh to my child. I could have spent the morning volunteering at the desperately understaffed local branch of the Society for the Prevention of Cruelty to Animals (the SPCA).

A:

False

Mehr Karteikarten anzeigen
Q:

For a person to be subjected to Aquilian liability in terms of the basic rule it is sufficient, but not necessary, that he negligently or intentionally caused harm and loss to another.

A:

False

Q:

It is prima facie lawful for a person to cause physical harm to another’s person or property by a negligent omission.

A:

True

Q:

In Minister van Polisie v Ewels, our AD announced that a negligent harm-causing omission could be declared wrongful by a court only if one of the further facts previously identified by the law obtained.

A:

False 

Could be declared wrongful by a court, even though none of the further facts previously identified by law obtained, if ‘the legal convictions of the community’ requires this.

Q:

The test for negligence is frequently referred to simply as ‘the test in Kruger v Coetzee’.

A:

True

Q:

Sea Harvest Corporation v Duncan Dock Cold Storage 2000 (SCA)

A:

TOPIC 

Negligence


FACTS 

  • Recently built cold store (owned by first respondent, on land of second respondent) set alight and destroyed by a flare fired to celebrate the New Year. 
  • Contents included goods owned by first and second appellants → stored in terms of oral contracts of deposit.
  • Appellants alleged that the respondents had been negligent in failing to install a sprinkler system
  • Provincial Division dismissed appellants’ claims


ISSUE 

  • Whether the project engineer was negligent in failing to install a sprinkler system 
  • Whether the port engineer’s failure to insist upon its installation had been both wrongful and negligent


REASONING

Relative vs Abstract Theory of Negligence

  • Relative Theory of Negligence: Whether the relative theory of negligence (are the general nature and general manner of occurrence of the consequences reasonably foreseeable?) (Mukheiber v Raath 1999). 
  • Abstract Theory of Negligence: Is any harmful consequence foreseeable? (Kruger v Coetzee 1966) 


The Test for Negligence 

The majority considered the test for negligence as developed in Kruger and redeveloped in Mukheiber: 

  1. A reasonable person in the position of the defendant 
    1. Would foresee the harm of the general type that actually occurred 
    2. Would foresee the general type of causal consequence by which that har occurred 
    3. Would have taken steps to guard against it 
  2. The defendant failed to take those steps


The court found that whichever theory was adopted, ULTIMATELY negligence is determined by whether the conduct complained of fell short of the standard of the reasonable person → there should always be a measure of flexibility to accommodate ‘grey area’ cases: 

  • Acknowledges the need for various limitations to the broadness of the enquiry where circumstances require
  • While the precise or exact manner in which the harm had occurred need not have been foreseeable, the general manner of its occurrence had to have been reasonably foreseeable


Foreseeability of the Fire 

No doubt that, as a general possibility, a fire in the cold store had reasonably been foreseeable: 

  • Fire extinguishers and hose reels were installed to guard against this 
  • What would, typically, have been reasonably foreseeable would have been the possibility of a fire starting somewhere in the building itself BUT what actually occurred was something entirely different. 
  • To equate it in the determination of culpability with just any fire could attribute culpability for damage resulting from a danger which actually had not been foreseeable as a reasonable possibility. 


Determining Culpability 

  • Culpability had to be determined not simply by asking whether any fire had been foreseeable BUT whether a reasonable person in the position of the project engineer/port engineer would have foreseen the danger of fire emanating from an external source on the roof of the building with sufficient intensity to ignite the gutter.


Given that –

  • The building was relatively isolated 
  • There was nothing about its locality rendering it more vulnerable to fire 
  • The region was not prone to lightning of the kind which would set fire to buildings save for a burning flare, 


it was difficult to conceive of any other source of fire which could have set the roof alight from above. 

Even if the project engineer and port engineer had known of the practice of firing flares to celebrate the New Year, the possibility of a flare landing while still burning and setting fire to the gutter of a building constructed with an otherwise non-combustible shell was so remote as not to have been reasonably foreseeable. 


The evidence had established that 

  • The danger of fire emanating from an external source on the roof of the building with sufficient intensity to ignite the gutter had not been reasonably foreseeable 
  • A reasonable person in the position of the project engineer and port engineer would not have foreseen the danger as real enough to warrant precautionary measures


CONCLUSION 

The appeal was accordingly dismissed. The decision in the Cape Provincial Division is confirmed. 


NOTE 

The SCA reiterated that the benchmark for negligence is what a reasonable person would have done in the same circumstances as the defendant.

Q:

According to the so-called ‘but-for’ test, event X was not the cause of event Y if, even if event X had not occurred, event Y would still have occurred.

A:

True

Q:

A person can be subjected to Aquilian liability in terms of the basic rule only if he committed a wrong against another by intentionally or negligently causing harm to her in breach of a legally recognised duty owed to her not to do so.

A:

True

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