Aquilian Liability

Skosana
 P’s husband (H) drove car off the road and into a ditch.
 Police locked H up in a cell for the night.
 Next morning H complained of abdominal pains and the two constables delayed taking him
to the doctor.
 Another delay in getting him to the hospital. He died.
 Majority
o Constables acted negligently in both delays.
o Causation: but for test laid down.
o Had there been no delays, would H have survived?
o Basically, had constables not delayed but acted with reasonable promptitude,
operation would have happened 5 hours earlier and he would have survived.
 Minority
o Applied the but for test as well.
o Had the delays not occurred, the operation would have occurred 4 and half hours
earlier.
o But judge held that only if it had commenced at least 5 and a half hours earlier
would H have survived.
o Thus, it cannot be said that without delays it is more probable than not that he
would have survived.
o Negligent conduct made no difference to the outcome.

Siman
 P (plaintiff) had a number of foreign debts.
 P heard that the ZAR would be devalued over the weekend thus, it would cost P to pay off
his debts.
 P tried to procure forward cover needed to pay off debts.
 Muir (M), the bank manager, said it was too late and that they would have to wait till
Monday.
 Thus, P had to pay way more for their debts.
 P sued the bank for the excess they paid for failure of the bank to provide forward cover.
 They argued that M’s statement that it was too late to obtain forward cover was negligent.
 Majority
o M’s statement was a mistake. But still dismissed appeal because the misstatement
had not in fact caused P’s loss.
o M’s conduct involved 2 aspects: 1) the refusal to procure forward cover and 2) the
intimation to plaintiff of this refusal.
o P alleged that it was the intimation (statement) that was negligent and wrongful but
never alleged that that the refusal was negligent and wrongful.
o To determine if the misstatement caused loss we must eliminate it (and not the
refusal) and ask if but for the misstatement, would the loss still have occurred.
o The answer is yes. We are still left with the refusal. This was sufficient to bring about
loss because it is unlikely that M would have been persuaded to reverse his refusal
and procure the forward cover.
 o Secondly, the misstatement would have been the cause of the loss if it induced them
not to obtain cover elsewhere.
o But P failed to prove that it would have been able to obtain cover elsewhere.
o Thus, the misstatement was not a necessary condition to their loss.
 Minority
o Substitute negligent conduct with non-negligent conduct.
o Held that M’s conduct could not be separated into 2 distinct acts.
o The refusal was part and parcel to the statement.
o If we eliminate the misstatement, then we are left with an agreement and
willingness of the manager to procure forward cover.
o Irrelevant whether P might have been able to get forward cover elsewhere.
o Would there have been enough time for the bank to process P’s claim? Yes.
o Thus, the negligent mistake caused the loss.

Who was right? Trollip of Corbett? Consider the example of a driver driving at a negligent speed who
causes an accident. But he was speeding to get to the pharmacy before it closed. Thus, his choice
was either to drive at an excessive speed or to not drive at all. If we are to eliminate the negligent
conduct, we must eliminate the speeding. But if we eliminate the speeding, then we must also
eliminate the driving because the driver was doing both for the same reasons. But no negligent
speeding means no accident. The mistake here is that since the driver sped and drove for the same
reasons, to determine whether speeding was the cause, we must eliminate speeding and driving
because they are done for the same reason. Corbett made this error. Because the manager refused
and made the misstatement for the same reason, he assumed that both have to be eliminated.

Carmichele
 Appellant (A) had failed to oppose the bail for rapist C.
 After his release but before his trial, C assaulted defendant (D).
 D brought a claim for damages against A for failure to oppose bail and failure to act by
police.
 The court found that the omission was negligent.
 The police owed a duty to D not to act negligently thus, there was wrongfulness.
 The next question was whether the negligent omission had caused the harm.
 A alleged that negligent omission had not been the factual cause because even if police had
opposed bail, the magistrate would have still granted bail.
 The concourt stated that the above question had to be answered objectively. What would a
reasonable magistrate have done so that if it was negligent, bail should not have been
granted?
 The SCA rejected the objective test. Causation is subjective. What would the actual
magistrate have done if bail had been opposed?
 In the absence of any contrary evidence, the actual magistrate is presumed to have acted
reasonably.
 But ex post facto evidence is not applicable, i.e. you can’t go to the magistrate and ask him
what he would have done. But you can look at previous decisions for similar evidence.
 There was pressure on magistrates to not oppose bail due to overcrowding in prisons. This is
a factor
  Only 49% would have contracted the disease. Thus every one of the 100 patients can hold H
liable.

Lee judgment CC
 Majority
o SCA applied the wrong test for causation (lol).
o Test for causation is more flexible and allows a slightly different test when justice
requires it.
o Looked at conduct instead of negligent conduct.
o Accepts that a reasonably adequate system may not have “altogether eliminated the
risk of contagion” but doesn’t believe that the practical impossibility of total
elimination is a reason for finding that there was no duty to at least reduce the risk
of contagion.
o Enough to satisfy probable factual causation where evidence establishes that
plaintiff found himself in a situation where risk of contagion would have been
reduced by proper systemic measures

So, this was wrong. The court misinterpreted Siman. Was our law of causation changed by
judgment? Well it’s unclear cause the court was in denial. They didn’t think they were changing the
law and so gave no constitutional reasons to justify change. Lee is an example of a multiple harmed
party case.

The court basically asked whether but for the culpable conduct, risk that harm in question would
have been less (not whether it would have existed). They asked whether the prevention measures
had a better chance of preventing such infection and found that the risk of contracting the disease
would have been reduced. Is this an improvement on the probability standard?

 No. analytical truth that if harm suffered and risk of harm was caused by negligent action
there is liability.
 But this standard gets rid of causation for Aquilian liability. Why?
 If you suffer harm and the negligent conduct posed a risk of this harm, then that would be all
you have to prove.

S v Mokgethi:
 Remoteness: policy considerations are relevant. Sufficiently close connection between
conduct and consequence.
 Bentley imported this test from criminal law
 Corbett J: reasonable foreseeability, absence of NAI, direct consequences test etc.

International Shipping co v Bentley

 B’s report led A to decide to continue credit facilities.
 A later made another decision to provide a support program to the Deals company.
 As a result, A suffered a loss when the company failed to repay their debts when they were
liquidated.
 Thus, A suffered loss.
 Court a quo accepted that there was negligence and a breach of duty (wrongfulness).
 Court also held that had A known the true nature of the company’s finances, it would not
have made the first decision to continue providing credit facilities.
 But the second decision was not a direct consequence of the defendant’s harm and the 2nd
decision was in fact the cause of the loss.
  On appeal: Corbett seems to apply the direct consequences test.
 Certain acts by the plaintiff constituted new intervening acts, e.g. decision to provide
support program.
 So, it endorsed the new test but applied the direct consequences test.

Fourways Haulage v SA Road Agency

 Appellant was negligent and infringed on defendant’s right to collect tolls.
 Loss suffered by D had not been to remote
 (I zoned out at this point)

Difficulties with the court’s approach. It made no attempt to establish whether there was negligence
in terms of the plaintiff. For there to be wrongfulness in terms of the plaintiff, there should have
been harm suffered, but SCA doesn’t establish such. This is contrary to the idea that the law
conforms to a relative approach to the harm sufferer.

Look at Loots and how remoteness was used there.