3. Wrongfulness.docx.pdf - Wrongfulness: Chapter 3 General...

Wrongfulness:
Chapter 3
General
Why’s after the event
- Facts as they existed
- Not that defendant thought whilst acting
- Judge on facts and circumstances after the action
Infringement of a legally protected interest in a legally reprehensible way
Boni mores -
legal convictions of the community
-
Infringement of legal protected interests
o
Must have had a harmful result
-
In a legally reprehensible way
o
Violation of legal norm
Act and consequence:
Factual infringement of legally protected interest:
• An act may be described as delictually wrongful only if it has as its consequence the infringement of a legally
protected interest –
wrongfulness of act determined with reference to its consequence
o Consequences =
damages, dignity impaired, goodwill infringed, earning capacity detrimentally affected
E.g. skipping a red light,
• Can be criminally liable but Not delictually liable
• Act and consequence(s) always separated by time and space
• Immediate consequence or longer interval
Pinchin v Santam Insurance Co Ltd 1963 (2) SA 254 (W)
Facts:
-
Mother expecting a child involved in accident
-
Child born with disability
Legal Question:
-
Delictual liability follow
Court:
-
Nasciturus fiction should apply
o
If to the benefit child (conceived but not yet born, born alive) van be seen as been born
-
Did not award damages
o
No clear causal link between accident and consequence
-
Legal causation
o
Limitation of eventual liability
o
Open flood gates for too many claims
Road Accident Fund v Mtat 2005 (6) SA 215 (SCA)
Facts:
-
Father (P) on behalf of child for personal injuries as a result of pregnant wife being injured in an accident
caused by the negligence of D
Legal question
-
Could P claim Compensation for pre-natal injuries sustained by his daughter
o
YES
Court:
Court discussed Pinchen in full
-
No reason use Nasciturus fiction (act and consequences separated in time and space) ordinary principles of
delict should apply

o
Nasciturus fiction also does not work where, e.g. mother was infringed with syphilis through blood
transfusion before conception and child born infringed as a result
-
Court distinguishes between wrongfulness and damages
o
Legal duty owed to unborn child – driver must have foreseen potential of pregnant women on the
road
 Unfortunately, only uses “breach of legal duty” for wrongfulness; could also be infringement
of subjective right
 Although aware of problems with English law “duty of care” judge actually uses it
 NB: wrongfulness and negligent are separate unlike in English law’s duty of care
-
Right of child to sue for prenatal injuries
o
Right of action only complete if child is born alive – when harm sets in
 Note prescription issues
-
Ordinary principles of delict will contain floodgates of litigation
Boni mores
Violaton of a legal norm:
We decide whether the infringement was wrong
• General norm/criterion for wrongfulness:
• Boni mores – legal convictions of community
( Minister van Polisie v Ewels 1975 3 SA 590 (A))
Lee v Minister of Correctonal Services 2013 (2) SA 144 CC 167:
Facts:
• L contracted TB whilst in prison
• Cannot pinpoint exact moment of contraction
• Not adequate detection program
• More probable to contract in prison then not in prison
Court
• Looking at facts we then determine whether conduct is wrongful
• Omission is unlawful where legal conviction of community demand omission to be wrongful
“In Ewels it was held that our law had reached the stage of development where