Topic 12: Liability for an omission
Minister can 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
Historical development:
Liability based on omission is more restricted than liability based on commission, because of public policy.
o Would be socially and economically unduly restrictive, & therefore undesirable, to enforce a wide
general duty to prevent harm to others.
o Possibility of unlimited liability would be against public interest.
Development occurred away from the traditional approach (whether there’s a legal duty to act) as it invites
confusion with the duty of care approach (English law) developed into a question of whether it’s
reasonable for the court to impose delictual liability for the defendant’s failure to act.
Roman law:
o Focus: practical solution was an ad hoc approach, dealing with each case on an individual basis
o Casuistic system – problem relating to liability for an omission wasn’t solved by having a general
principle/ test, but each case was assessed separately in a different manner
Roman Dutch law:
o General position: jurists said that generally, the POD was to not hold defendants delictually liable for
failure to act (no liability arose)
o Voet: sometimes liability should be imposed where the defendant failed to act
Prior conduct: if the defendant caused the harm/ risk thereof prior to the harm occurring &
failed to prevent it from materialising, the defendant should be liable.
Express acceptance of duty by the defendant & later failure to comply with such a duty.
Wanted to maintain general position & only allow for 2 above exceptions for liability
o Mattheaus: culpa is all-embracing measure (proposed a general principle for liability)
More radical than Voet – negligence should always result in liability
This formulation doesn’t incl. requirement for wrongfulness.
Customary law: the pre-colonial position is still not quite known
Contemporary SA law:
Past general legal position (early 1900’s):
Halliwell v Johannesburg Municipal council 1912: plaintiff injured when his horse slipped on cobbles laid out
by the municipality on the edge of tram lines. They were properly laid but became dangerously slippery due
to becoming worn down over the years. ‘Where a road authority either constructs or repairs a street in such
a way as to introduce a new source of danger which would’ve otherwise not existed, then it must take due
steps to guard against such danger. Any omission to discharge this duty would entail liability in damages to
any injured person to whom it was owed.’ Court upheld claim for damages based on the idea of prior
conduct (exception). Decision was maintained for a long time in following cases. Gave rise to discontent (led
to an artificial search for some prior act on which to establish liability, when the real reason for the ruling
clearly lay elsewhere).
Cape Town Municipality v Paine 1923: ‘mere omission didn’t under the lex Aquilia constitute (liability), it only
did so when connected to prior conduct’.
SA Railways & Harbours v Estate Saunders 1931: defendant left a trailer at a store of a company to be
unloaded & later fetched, in accordance with the usually practice followed by those parties. The workers
unloaded the trailer & decided to push the trailer into an adjacent road & informed the defendant that the
trailer was ready for collection. The railways failed to collect the trailer, resulting in it remaining on the road
after dark w/o lights. The plaintiff’s bus collided with the trailer. Court decided to hold the railway company
liable on the basis that the company negligently failed to remove the trailer. Liability in this case, according
to the court, was based on ‘prior conduct’, which was that it allowed the trailer to pass out of its custody.
Issue with prior conduct doctrine is clear from this case – shows that the court will search for any type of
prior conduct to impose liability for negligence.
Van den Heever: ‘the doctrine of prior conduct isn’t harmless, it’s caused confusion & led our courts to give
irreconcilable decisions unless we find the reconciliation in pure casuistry’
, o VDH proposes culpa as an ultimate measure & as a general POD someone can be liable for
negligence
o VDH’s stance was rejected by the appellate division & wasn’t given much traction
Beinart & McKerron: iniuria (wrongfulness) used as an ultimate measure.
o Concept of wrongfulness must be developed & used as a measure to determine whether liability
should be imposed for someone’s failure to prevent harm
Modern SA law:
Over the years, courts carved out more ways to apply liability to negligence & omissions
Court more willing to use the concept of wrongfulness to determine liability for omissions.
Silva’s Fishin Corp v Maweza 1957: ‘an omission doesn’t entail delictual liability where there’s no legal duty
to act, that generally speaking such a duty will arise from a prior act or conduct, but that it could also arise
from some other source, one such possible source being a statute. There’s a variety of circumstances, some
of them unconnected with prior conduct, which impose the duty to act to avoid reasonably foreseeable loss
to another’.
Regal v African Superslate 1963: ‘A majority of the court rejected the view that prior conduct was an
indispensable requirement for the wrongfulness of an omission & applied instead the far more flexible
criterion of what could reasonably be expected of the person in the circumstances.’
Minister of Forestry v Quathlamba 1973: ‘I’m accordingly unable to accept that, in relation to a fire occurring
in the circumstances under discussion, the doctrine of ‘mere omission’ in itself affords a complete answer to
supine inaction on the landowner’s part.’
Minister van Polisie v Ewels 1975: NB plaintiff instituted a claim after they were assaulted by a policeman in a
police station. Plaintiff wanted to hold the minister vicariously liable as its employees committed a delict in
the course & scope of their employment, as the other police officers present during the assault did nothing
to stop or prevent the assault (omission). Court said we can’t continue with the strategy of trying to
recognise exceptional circumstances which would justify the imposition of liability for omissions. We must
rather recognise a general principle, which can be applied to all omission cases, to prevent countless
attempts to recognise exceptions to the rule. ‘an omission is regarded as unlawful when the circumstances
of the case are of such a nature that the omission not only excites moral indignation but also that the
community’s legal convictions demand that the omission should be considered wrongful.’ Case established
wrongfulness as an independent requirement for delictual liability. Case illustrates that omission cases are
often problematic (causation of such harm isn’t prima facie wrongful). In the past, courts adhered to the
view that they could impose liability for an omission only where the defendant’s prior conduct created a risk
of harm or a new source of danger & if the defendant then failed to prevent the harm from occurring. In this
case, court broke away from this approach & held that there can be delictual liability for a mere omission, in
other words, where an omission wasn’t preceded by conduct that created a risk of harm or that introduced a
new source of danger.
o Criticism: enquiring into an ‘existing legal duty’ is dangerous as it can easily be confused with the
Eng. law approach where courts establish a ‘duty of care’ when assessing negligence.
Confuses the elements of ‘negligence’ & wrongfulness
o Criticism: why look at community’s legal convictions, if they don’t really exist, since it’s policy
considerations that actually inform a court’s decisions
o Ewels case has been of great significance, not only in respect of liability for omissions, but also in
respect of the criteria for assessing wrongfulness generally.
Minister of Safety & Security v Van Duivenboden : ‘the question to be determined is one of legal policies,
which is an assessment in accordance with the prevailing norms of this country… In applying the test
formulated in the Ewels case, the ‘convictions of the community’ must now be informed by the norms &
values of our society as they’ve been embodied in the Const.’
Le Roux v Dey: court confirmed that in the context of delictual law, the criterion of wrongfulness ultimately
depends on a judicial determination of whether it would be reasonable to impose liability on a defendant for
the damages flowing from specific conduct. This depends on public & legal policy considerations in
accordance with Const. norms.
Philosophical foundations underlying legal rules:
Socio-economic reasons
Question to ponder: why do courts continue to say that harm arising from omissions aren’t prima facie
wrongful?
, o (1) The legal rules came from RDL & that was a society which placed high value on the idea &
importance of the individual (individualistic society & freedom)
The idea that you’re not your brother’s keeper – it’s not your job to look after others.
Placing undue responsibility on someone is an unjustified infringement on their freedom
o (2) Socio-economic reasoning
To place a duty on someone to help others would perpetuate further socio-economic risks
(helping others could diminish your own resources or create further risks)
Wrongfulness:
Reasonableness in imposing liability
Van der Byl v Featherbrook Estate HOA: Mr & Mrs VDB were residents of FE. Robbers gained access to the
estate & then broke in to the VDB’s home & robbed them, shot Mr & assaulted Mrs, causing serious injuries
& mental trauma. VDB’s brought a claim against the FE HOA & the security company which the HOA
employed. VDB argued that the failure to take specific measures to ensure the residents’ safety was
wrongful ito delict.
Ewels: essential question is whether a legal duty exists to prevent harm, to others based on reasonableness
and public policy. A legal duty exists where failing to prevent harm not only evokes moral indignation, but is
also regarded as so unreasonable, according to the boni mores or legal convictions of the community, that
liability should be imposed for the loss suffered.
No wrongfulness – end of the enquiry, no delict occurred.
Courts have typically followed a conservative approach when dealing with liability for an omission (heavy
burden of proof to convince the court that imposing liability is reasonable).
Courts recognise a duty to act positively to prevent harm for the purposes of delict only where failing to act
positively was unreasonable ito to the boni mores or legal convictions of the community.
Enquiring into wrongfulness involves applying the general criterion of reasonableness.
o Courts must weigh up interests of the parties & consider interests & convictions of the community.
Policy considerations:
Total/ global exercise
Expansion: conservative approach
Policy considerations that indicate whether the law of delict should intervene:
o The social or economic consequences of imposing liability, availability of alternative remedies, & the
need for accountability of public bodies/officials.
Relevant constitutional or other statutory rights and duties.
A grouping of factual circumstances that indicate a duty not to cause or to prevent harm in the particular
situation.
Social and economic implications:
o Are the legal, social and economic implications of imposing liability for the infringement?
o E.g. would imposing liability on police for dereliction of duty result in a large influx of similar claims?
Fear of unlimited liability if imposing liability on the defendant
o Broader socio-economic impact of decision to hold defendant accountable.
Van Duivenboden: Para 19 Police failed to disarm a dangerous citizen. LQ: was the police’s
failure wrongful (omission). Court considers the broader economic impact of the decision
because it needed to be determined whether, if the court held the defendant liable, it would
mean in future that other plaintiffs would be able to claim. Court notes that this could
negatively impact the relevant Ministers’ resources (budget) due to the payment made for
court claims, rather than the money being used for state resources & maintenance. This
consideration was outweighed by const. considerations.
Van Eeden: Para 20-23 Police failed to lock a cell door, allowing a criminal to escape who
assaulted the complainant. LQ: was the police’s failure wrongful (omission).
Additional burden on the defendant
o Van Duivenboden: Para 19 Court asks whether imposing liability would have an adverse impact on
policing efforts by imposing a burden.
Vulnerability concern
o Before recognising wrongfulness, the court must consider whether the specific plaintiff is vulnerable
as an individual (is there not another remedy in law?).
, E.g. contractual remedy, administrative law remedy, constitutional remedy etc.
Prior conduct which creates risk or danger.
o Court considers whether the defendant’s prior conduct created a risk of harm.
o Past: was an indispensable requirement for liability for an omission, but is now just a factor
Requirement was discarded in Cape Town Municipality v Bakkerud case: Court accepted
general criterion of reasonableness (policy-based standard of boni mores or legal convictions
of the community). Ihe specific content of this general criterion is determined by considering
a group of factual considerations, like the extent of the danger, time period for which it
existed, resources of the public authority, & prior warning.
Control over dangerous object
o Did the defendant have control over a dangerous/ potentially dangerous object?
Distinguish between control exercised in fact (someone has the object in their possession) &
an ability/ right to exercise control over the object
E.g. state authorities with control & authority ito public land
Court will consider the degree, scope & effectiveness of the control the defendant has over
the property based on the facts.
The actual exercise of control, or the right, obligation or ability to exercise control, is
not in itself conclusive.
The owner, occupier or person in control of property, generally, has a duty to
control fire on the property and to prevent injury to persons, even trespassers, the
same applies to the owner or person in control of a gun or an animal.
Test: can one reasonably or practically expect the person/ body in control to take
precautionary measures in respect of the harm which occurred.
This test comes from the TB & the lecturer says we mustn’t rely too much on this
factor & make it the essential question under a wrongfulness examination as this
risks conflating negligence with wrongfulness
o Van Eeden: Defendant (Minister) through their employees, exercised physical control over criminals
& had the right & ability to exercise control. Police didn’t exercise the control properly by failing to
lock the cell door. When considering liability, the court looked at control & degree of control.
o E.g. the fact that a provincial administration exercises control & supervision over all public roads in
the province, ito of leg., is a factor in determining if the administration had a legal duty to prevent
fire spreading that started on the side of a minor public road.
State departments, public bodies & officials which promote public interest
o Such bodies often have a legal duty to act in the interest of broader public interest imposed by
statute or the Const.
o Courts will focus on the state characteristic of the defendant & consider whether they had a duty
towards the public & plaintiff to act with diligence & promote public interest
o Oppelt v Dept. of Health WC: person suffered a severe rugby injury & was rushed to hospital. One
hospital they received care at was a state hospital. Allegations made by the plaintiff pointed towards
the fact that the medical staff failed to provide adequate, proper care, which caused his paralysis.
When assessing wrongfulness, the court highlighted that this was an omission, so the harm wasn’t
prima facie wrongful. Factor used in the consideration was that the court was dealing with a State
institution which had a duty of care to the public & plaintiff.
o Did a person holding a public office fail to prevent harm in the course of his or her official duties?
Obligation to act positively in terms of common law or statute:
o E.g. owner of low-lying land is obliged to provide lateral support for the higher land of his neighbour.
o Existence of a statutory duty is determined according to the normal rules of statutory interpretation
as it appears from the wording of the provision.
Accountability
o NB in the context of wrongfulness
o NB to hold state entities accountable when their officials fail to give effect to const. duties
o Carmichele: Para 29-39 state officials failed to protect citizens from harm (duties protected in the
const.).
o Court will hold defendants liable for omissions when there’s no other way to hold the defendant
liable except for in delict.
Special relationship:
