Wrongfulness

Question 1

Define wrongfulness

Answer 1

Wrongfulness is defined as a descriptor of a person’s conduct tested by considering whether the policy and legal convictions of the community, constitutionally understood, regard it as acceptable. It is based on the legal duty not to cause harm, the duty to respect rights and questions the reasonableness of imposing liability (Loureiro)

Question 2

What is the two stage enquiry of wrongfulness?

Answer 2

Wrongfulness is enquiry is broken up into 2-stages: (Country Cloud)
- Establishment of a prima facie case of wrongfulness by the victim
- Grounds of justification, by the wrongdoer (consent, Statutory authority, private defence and necessity)

Question 3

What are the prima facie cases of wrongfulness scenarios?

Answer 3

• Positive conduct and physical harm to the victim’s person or property
• Omission and physical harm to the victim’s person or property
• Any type of conduct and pure economic loss

Question 4

What happens if negligence arries due to scenerio 1?

Answer 4

If the negligence arises due to a positive act that causes physical harm, there is a rebuttable presumption of wrongfulness (Rudman)

Question 5

What happens if the wrongdoer arries due to scenerio 1?

Answer 5

The mere fact that an alleged wrongdoer has physically harmed the victim’s person or property through their positive conduct automatically establishes a rebuttable presumption of wrongfulness prima facie case of wrongfulness (Country Cloud obiter CC)

Question 6

What is an omission?

Answer 6

An omission is a failure to act and is not prima facie unlawful unless the legal convictions of the community state so (Mashingwana)

Question 7

What is a negligent omission?

Answer 7

A negligent omission is prima facie lawful and is only constituted as unlawful in circumstances that the law deems it unlawful. Regarding the state they always have the duty to act (Van Duivenboden)

Question 8

What is the LCC?

Answer 8

The legal convictions of the community, as constitutionally informed, must determine the existence of a legal duty with reference to all applicable factors (Ewels)

Question 9

What is the prior conduct rule?

Answer 9

If you create a future risk through your present lawful conduct, but fail to prevent the risk from materialising. They are under a legal duty to stop it from materialising; then your omission is unlawful. (Haliwell)

Question 10

What does the dangerous property rule?

Answer 10

This holds that if a person is in control of a potentially dangerous property, there is a duty to act reasonably to avoid the foreseeable harm to others; an emission in this instance is unlawful (Quathlamba)

Question 11

What is the special protective realtionship rule?

Answer 11

there is proximity between the different parties, there is a special protective relationship. An omission is unlawful when there is a special protective relationship that existed between two people. Such as with police officers (Ewels)

Question 12

What is the statuory rule?

Answer 12

The Constitution and legislation (CL) would create a duty to act by police or organs of state in relation to members of the public and encourage them to prevent violent attacks against women (Carmichael)

Question 13

What is the constitutional rule?

Answer 13

When determining the wrongfulness of an omission, the interests of parties and the conflicting interests of the community need to be proportionally weighed. Taking into account the Bill of Rights, the spirit, purport and objects of the Bill of Rights and the values of dignity, equality and freedom (Carmichael)

Question 14

What is proximity in relation to omission?

Answer 14

Proximity is not a requirement to establish a duty of care; this can be established through recognition that the state is liable for the failure to perform the duty imposed upon it by the Constitution, unless it can show compelling reasons to deviate from this norm (Ewels)

Question 15

What is the liabilty in state cases under scenerio 2?

Answer 15

When it comes to state liability cases, wrongfulness is established by doing a pro-and-con analysis of factors weighing in favour of imposing liability vs factors weighing against it (Van Duivenboden)

Question 16

What is the weighing up in scenerio 2?

Answer 16

• This weighing must take into account what the court conceives to be societys notion of what justice demands, under policy decisions and value judgments. These need to be enriched by the appropriate norms of the objective value stem embodied by the constitution (Carmichael)
• The court will weigh up whether an imposition of liability for damages is going to have a chilling effect on the performance of an administrative or statutory function, to determine liability (BE obo JE)

Question 17

Define pure economic loss

Answer 17

Pure economic loss is defined as where financial loss is sustained by a plaintiff with no accompanying physical harm to her person or property; the criteria of wrongfulness assume special importance. (Country cloud)

Question 18

What is the general rule of pure econoimic loss?

Answer 18

The general rule is that conduct causing pure economic loss is not prima facia wrongful. There is no general right not to be caused pure economic loss (Country Cloud)

Question 19

When will an omission causing loss be wrongful?

Answer 19

A negligent omission causing loss will only be regarded as wrongful and therefore actionable if public or legal policy considerations require that such omissions, if negligent, should attract legal liability for the resulting damages (Hawekwa)

Question 20

What did the SCA in ENS state about extending fraud benefits?

Answer 20

The SCA held that extending fraud benefits to clients in a creditor relationship, where there was a failure to protect them, would lead to indeterminate liability and have profound implications on the profession (ENS)

Question 21

Why is vulnerability of a person important in scenerio 3?

Answer 21

Vulnerability of the person is an important consideration in determining the public policy in relation to pure economic loss; this will be considered if the person could not have avoided the risk by any other means (ENS)

Question 22

When can pure economic loss happen?

Answer 22

Pure economic loss happens in:
- Fraud
- Negligent misstatements
- Death/injury to another person

Question 23

Define fraud

Answer 23

Fraud is defined as an intentional misrepresentation that aims to dupe, beguile, or trick the victim, which causes the victim to suffer some type of patrimonial harm.

Question 24

What are forms fraud can take?

Answer 24

• Fraud can take on the form of an intentional lie that one competitor spreads about another competitor. Because of the strong dimension of dishonesty in such a case, once you have proven that the misrepresentation in question is fraudulent (in other words intentionally misleading), wrongfulness has been established (Geary & Son).
• Fraud can take the form of an intentional pre-contractual misrepresentation that induces the unwitting victim to enter into a contract. Wrongfulness arises in cases of pre-contractual fraud because of the socially unacceptable conduct of intentionally communicating facts that are known by the maker of the statement to be false. (Coetsee)

Question 25

how do you establish wrongfulness in a fraud case?

Answer 25

Wrongfulness in the case of fraud is largely dependent upon a finding of fault in the form of intent (Fagan)

Question 26

What is negligent misstatement?

Answer 26

Negligent misstatements (distortion of fact) can attract delictual liability, but not every negligent misstatement can be described as being wrongful (Trust Bank van Afrika)

Question 27

How can you estalish if there is mistatement?

Answer 27

If there was no intentional fraud, we can establish that the misstatement was careless/negligent (Delphisure v Dippenaar)

Question 28

What are the 8 factors we consider in determining the wrongfulness of a misstatement: (Delphisure v Dippenaar,)?

Answer 28

- Whether the plaintiff was vulnerable to the risk (which would favour a finding of liability) or could have avoided it by contractual means such as a disclaimer (which would operate against liability); - Whether the extension of liability would impose an unwarranted burden on a defendant or, conversely, whether it would not unreasonably interfere with the defendant’s commercial activities as the defendant was already under a duty to take reasonable care in respect of third parties; - The nature of the relationship between the parties, contractual or otherwise; - Whether the relationship between the parties was one of ‘proximity’ or closeness; - Whether the statement was made in the course of a business context or in providing a professional service ; - The professional standing of the maker of the statement. - The extent to which the plaintiff was dependent upon the defendant for information and advice; - The reasonableness of the plaintiff's reliance on the accuracy of the statement.

Question 29

What happens when a victim suffers harm becuase of another persons death?

Answer 29

When a victim suffers patrimonial harm because of another person’s death or injury, it is not the victim’s own body that has been injured. This arises through the dependent’s action, or if there is also a potential claim for funeral expenses.

Question 30

When does a wrongdoer act wrongfully towards the dependant?

Answer 30

- The wrongdoer culpably and wrongfully caused the death of the breadwinner - The wrongdoer thereby culpably and wrongfully violated the dependant’s right to maintenance - this must be in a way that would offend the legal conviction of the community.

Question 31

What happens if the breadwinner is killed through a positive conduct?

Answer 31

If the breadwinner is killed through a positive conduct physically harming the breadwinner’s person, then we presume the wrongdoer’s conduct to be prima facie wrongful towards the primary victim. (Maweza)

Question 32

What happens if the breadwinner is killed through an omission?

Answer 32

If the breadwinner is killed through an omission, if it is found to be wrongful and culpable, then there can be a claim for loss of support (Za v Smith)

Question 33

What are the two conditions to show a relationship of maintenance?

Answer 33

A relationship of maintenance is established if two conditions are met: (Du Plessis v RAF) - The maintenance provider must owe a legal duty of support to the dependant (the dependent must be in need of support, and the provider is in a position to provide that support) - The dependent must have a correlative right to support from the maintenance provider. If the legal convictions of the community deem the maintenance entitlement worthy of the law’s protection

Question 34

Can a person claim due to the death of their spouse?

Answer 34

A civil marriage creates maintenance obligations enforceable against third parties who cause the wrongful death of one spouse. Parents owe their children a duty to maintain them. This is determined through the legal convictions of the community (boni mores) (Warneke)

Question 35

Can a person claim dut to injury of their spouse?

Answer 35

A civil marriage creates maintenance obligations enforceable against third parties who cause the wrongful injury of one spouse. The factors to consider in extending the relief to new classes of claimants are the boni mores of the community, considerations of equity and reasonableness and can be established through proof of a calculable loss (Abbott)

Question 36

Can same sex spouses claim maintance?

Answer 36

Same-sex permanent life partners (before Civil Union Act) create maintenance obligations enforceable against third parties who cause the death of ones partner. The court found that the partners had a tacit agreement to support each other; they established that there was a duty of support that existed in life partners and that this was worthy of protection. (Du Plessis)

Question 37

Is their a maintance obligation to children whoes parents are incarcerated?

Answer 37

Incarceration of the parent by the police does not create an enforceable right against the party that arrested them. (Brooks)

Question 38

Can enegaged partners claim maintance from those they who are already married?

Answer 38

Engaged partners where one is still "married to but separated from" someone else create maintenance obligations enforceable against third parties who cause the death of ones child/parent (Jacobs)

Question 39

Can a person claim funeral expenses?

Answer 39

Any person who bears the cost of funeral expenses, regardless of whether they are heirs or not can claim against the wrongdoer. The funeral arrangements which are to be expected from one who stands in such a relationship to the deceased would not ordinarily be limited to the bare act of interment (burial) but would include such incidental items as are reasonable in the circumstances. However, the test of what is reasonable in the circumstances may vary not only with the means and status of the deceased, but also according to the legal ground upon which the right of recovery is exercised (Rondalia)

Question 40

Can a person sue due to loss of potential inheritance?

Answer 40

If a wrongdoer kills a person, that person’s heirs and/or legatees will inherit from the deceased. The heirs/legatees claimed that the wrongdoer deprived them of that increased financial benefit. Their claim was refused primarily because no one has an inherent right to inherit. Thus, no delict was committed against them. (Lockhat’s Estate v North British and Mercantile Insurance)