Class notes
Law of Delict 373
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- Stellenbosch University (SUN)
Delicts notes with cases described and a few extra
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Law of Delict Semester Two 2020Theme 12: Liability for an omission
Chapter 14.
Minister van Polisie v Ewels 1975.
Cape Town Municipality v Bakkerud 2000.
Minister of Safety & Security v Van Duivenboden 2002.
Van Eeden v Minister of Safety & Security 2002.
Minister of Safety & Security v Carmichele 2004.
Historical development:
Roman Law
Roman jurists had to decide whether aquilian liability could be imposed
when someone simply failed to act.
Requires attention and detail but broadly can say that focus of roman
jurists was to solve the problem practically and not to develop legal
principles by which cases could be dealt with and decided on.
Followed an ad hoc approach.
Roman lawyers developed casuistic system – problem not solved by
general principle but each case was dealt with separately and in different
ways.
Roman Dutch Law
Source of our law. General position: one cannot be held liable in delict for
failure to act. Immune from liability if simply failed to act, but can be held
liable if you acted positively.
Some jurists started to advocate for a different position – such as Voet.
Voet: some cases should impose liability where someone failed to act.
Wanted to maintain general position with only two Exceptions:
- Prior conduct on part of defendant (caused the risk or harm through
their own positive prior conduct).
- Expressly accepted a specific duty and failed to comply with duty.
Matthaeus: more radical position. Should have one principle to decide
whether any kind of omission case should attract liability in delict – culpa
(fault in the form of negligence). Does not include requirement for
wrongfulness as we do today.
Modern SA Law
Halliwell v Johannesburg Municipal Council 1912
- Plaintiff was injured when horse slipped on cobbles laid out by
Municipality on edge of tram lines in public street.
- Cobbles were properly laid but became smooth over years and thus
dangerous.
- Court upheld claim for damages.
- Why did they allow the plaintiff’s claim?
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,Law of Delict Semester Two 2020
o Fundamental reason: court held we were dealing with prior
conduct by defendant that created the dangerous risk
situation and defendant failed to act to danger it had created
through prior conduct.
o Court held the general position with exceptions.
The decision above led to an artificial search for some prior positive act on
which to establish liability when real reason for decision laid elsewhere.
Cape Town Municipality v Paine 1923
- Re-affirmed that the rule is the mere omission did not under lex
Aquilia constitute liability but only did so when connected with prior
conduct.
South African Railways and Harbours v Estate Saunders 1931
- Defendant (railways) left trailer at store of company to be unloaded
and fetched later. This was in accordance with usual practice.
- Railway failed to collect trailer resulting in trailer staying on road
after dark.
- Bus collided with trailer.
- Court held railway company liable in delict on basis that it had
negligently failed to remove the trailer.
- Judge Stratford: liability based on doctrine of prior conduct, which
was the defendant allowing trailer to pass out of its custody on the
terms and understanding as usual.
Problem with prior conduct doctrine: not clear exactly what kind of
conduct would be prior conduct for purpose of allowing liability to be
imposed.
Courts just had to search for prior conduct and thus leading to liability. But
not all prior conduct cases have the same type of prior conduct. In this
way court could find any type of prior conduct and say omission based on
that.
Cases would differ so much because there was no real basis to base
liability on. Similar situations dealt with differently – arbitrary
results.
Van der Heever - “The doctrine of previous conduct is not a harmless
shibboleth; it has caused confusion and led our courts to give
irreconcilable decisions unless we find the reconciliation in pure casuistry.”
- Not a harmless doctrine, caused arbitrary results. Courts dealing
with each different case in a different way and applying doctrine
differently.
- Proposed development: should not say as general rule no liability
can be followed. Not seek to apply prior conduct as exception, but
say in principle a person can be held liable for his failure to act if he
was negligent.
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- Appellate division rejected this proposal.
Beinart and McKerron (UCT) made proposal: should use concept of iniuria
(wrongfulness) should be developed and recognized as an individual
delictual requirement and then use wrongfulness as measure to help
determine whether liability should be imposed for failure to prevent harm.
Following three cases illustrate how AD gradually picked up on idea
proposed by UCT. Using concept of wrongfulness in deciding whether
defendant should be held liable for failure to prevent harm. (rise of
exceptions)
Silva’s Fishing Corporation v Maweza 1957
- Respondents husband was member of crew of fishing boat who
drowned at sea after boat was wrecked.
- Argued that appellant had known of crisis and he failed to act, no
effort to rescue.
- Held there was a legal duty on appellant to take positive steps to
rescue crew.
- Duty to rescue was not due to special rules arising out of
circumstances in question (majority) and therefore liability in delict.
- Steyn (minority): legal duty to act positively to prevent harm might
arise from a wide variety of circumstances, some completely
unconnected from prior conduct. These circumstances would be
determined by having regard to legal convictions of community.
Wanted to break away from prior conduct doctrine.
Regal v African Superslate 1963
- Steyn here is CJ.
- Application for interdict not delictual claim for damages.
- Landowners failure to take steps to prevent waste from washing
downstream and causing harm to neighbor constituted wrongful
omission?
- “In holding that there was no legal duty to act in circumstances, a
majority of the Court rejected the view that prior conduct
was an indispensable requirement for the wrongfulness of
an omission and applied instead the far more flexible
criterion of what could reasonably be expected of the person
in the circumstances.”
- Maweza (minority): break away from prior conduct.
- Regal: court did not grant interdict and not legal duty but court
confirmed that we can impose liability for omission in cases other
than prior conduct.
Minister of Forestry v Quathlamba 1973
- Action for damages caused by veld fire, court approved of minority
decision in Maweza and based liability for omission on fact that
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, Law of Delict Semester Two 2020
defendant had control over property on which fire had broken out
on.
- Idea of control became exceptional circumstance in which court
willing to accept liability.
- Show defendant in control over dangerous situation which could
cause harm to others and failed to maintain control, leading to harm
and then liability could be imposed.
Exceptions therefore:
- Prior conduct
- Control
- Statute – plaintiff show defendant ito statute had legal duty to
prevent harm and failed to act in accordance, liability could follow.
We saw development of wrongfulness as an independent requirement.
To determine liability for an omission, one enquires whether a legal duty
to prevent harm exists. Courts recognise a duty to act positively to
prevent harm for the purposes of delictual liability only where failing to act
was unreasonable according to the boni mores or legal convictions of the
community. Wrongfulness enquiry involves the weighing up of the
interests of the persons involved and also take into account the interests
and convictions of the community at large.
Recent developments:
Ewels:
- Plaintiff assaulted by PO in Police station.
- Minister held vicariously liable in delict.
- Omission on part of other PO’s standing around.
- Negligent omission caused injury and omission was wrongful.
- Court: in future when dealing with omission, first thing to be asked is
whether or not there was a legal duty on defendant to act positively,
take steps and make sure harm did not occur. Absence of such duty
had to be decided when looking at legal convictions of community.
“legal convictions of community demand that the omission should
be considered wrongful”
Consequences of Ewels:
- Established wrongfulness as a unique, independent requirement for
a delict.
- Omission cases are problem cases. Causation of harm is not prima
facie wrongful.
- Need to establish whether there is a legal duty and if established,
allows court a way to control liability and keep it within reasonable
bounds.
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