Authored By: Zanele Tshem
Cape Peninsula University of Technology
Negligence is a fundamental concept of the law of delict and is central to proving liability for harm or injury caused to others. For South African law, the Aquiline action underlies the law of delict, based on the requirement to prove wrongfulness, fault, cause, and damage. This article will address the role of negligence under delictual liability in South Africa against the background of the applicable legal principles, case law, and its consequences for the litigant.
Negligence is based on the objective test of the reasonable person. The courts, in deciding whether a person has been negligent, consider whether a reasonable person standing in the same position would have realised the risk of harm and done something to prevent it. Negligence is just a failure to exercise a duty of care towards other individuals.
To find negligence, the plaintiff would have to prove that there existed a duty of care owed by the defendant to the plaintiff, that the duty was violated, and that the violation caused the damage or injury complained against by the plaintiff. The plaintiff would also have to prove that damage or injury was incurred by him or her due to the violation of duty by the defendant
South African courts have developed an extensive body of case law in negligence in delictual liability. The test of negligence has been proved under the case of Kruger v Coetzee (1966), that is, a person is negligent where he/she/they do not exercise reasonable care not to bring harm to others. The test has been applied in many cases, for example, Sea Harvest Corporation v Duncan Dock Cold Storage (2000).
Negligence is detrimental to people and society as a whole. Negligence can lead to physical harm, psychological harm, and financial loss. Negligence can also weaken institutions and people, leading to social disintegration. Negligence can be prevented with the right attitude. Individuals and businesses must do something to evaluate potential risks and take action against them. Some involve risk analysis, safety protocols in place, and employee training.
The second element that the negligence must present is that of the duty of care to be followed by the defendant towards the plaintiff. The courts have ruled that the duty of care comes in where one has the responsibility of not injuring others. The scope of the duty varies from case to case, and the courts consider foreseeability, proximity, and fairness. Breach of duty is where one does not measure up to the standard of care required by law. Courts in negligence cases will consider whether it would be reasonable for an ordinary person to have avoided causing injury. If one does not avoid causing injury, then he or she will be negligent.
Causation is a fundamental element of negligence, and the plaintiffs must prove that the breach of duty by the defendant caused the harm or damage sustained. Two tests are used by the courts to figure out the causation between the breach of duty by the defendant and the damage sustained by the plaintiff.The two are the test of factual causation, which asks whether the harm would but for the defendant’s breach of duty have occurred, and the test of legal causation, which asks whether the harm was a foreseeable consequence of the defendant’s breach of duty
Damages constitute the substance of delictual liability, and plaintiffs must prove they have incurred injury or prejudice because of negligence by the defendant. Damage is granted by the courts to compensate plaintiffs for loss incurred, which may be in the form of medical care, loss of earnings, and suffering. Lastly, negligence is a significant aspect of South African delictual liability. Negligence is based on the objective test of the reasonable person, and the plaintiff must prove the ingredients of duty of care, breach of duty, causation, and damage. South African courts have a good, developed jurisprudence of negligence, and litigants must give close attention to the application of negligence in delictual liability cases.
The law of delict is constantly changing, with the courts developing further and creating principles of negligence. New cases, as they arise, will challenge the courts to address the application of negligence in diverse environments, including new such fields like cyber law and environmental law. People and organisations must adopt best practices for reduction of the risk of negligence, which are:
– Safety procedures and protocols must be established
– Employees must be trained
– Risk assessments must be conducted regularly
– Adherence to relevant legislation
– Maintenance of proper records
In short, negligence is a prominent ingredient of South African delictual liability. Negligence uses the objective test of the reasonable person, and plaintiffs must prove the constituent elements of duty of care, breach of duty, cause, and damage. The case law of negligence in South African courts is very advanced, and litigants must give maximum attention to the use of negligence in cases of delictual liability.
To avoid becoming responsible for negligence, individuals and firms will take reasonable care to not hurt other individuals. This may involve opening safety protocols, training, and compliance with relevant legislation and law.
Reference(S):
Kruger v Coetzee 1966 (2) SA 428 (A)
Sea Harvest Corporation v Duncan Dock Cold Storage 2000 (1) SA 827 (SCA)
Boberg, P.Q.R. (1984) The Law of Delict. Juta & Co.
Neethling, J. and Potgieter, J.M. (2015) Law of Delict. LexisNexis.
