law of delict 2011

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INTRODUCTION.

The essay will address Midgleys argument concerning the nature of legal duty in relation to the

element of wrongfulness. We will look at the arguments and the counter arguments provided and

link those arguments together with the issue of Product liability as it was dealt in the case ofAB

Ventures v Siemens Ltd 2011 (1) SA 586 (GNP).

Wrongfulness as defined by Neethling involves the scope of protection that the law affords to

various interests, the scope of a persons responsibility to act and the policy considerations that

relate to whether the law of delict should intervene.1

This means wrongfulness constitutes a legal

duty to take reasonable steps. It should however be noted, that a positive act which causes

physical harm becomesprima facie wrongful, this is however not the same case when it comes

to omission or pure economic loss.2 In this instance one would have to look at whether one had

the legal duty to prevent harm from another. It is on this argument of the enquiry of

wrongfulness through legal duty, that Midgley had based his argument.

Midgleys argument was based on the notion that when considering the element of wrongfulness,

one should not look into duty of care of English law but should rather look into the legal duty

that the South African law applies.3 This is essentially because the duty of care of English law is

usually associated with negligence, and the South African legal duty in relation to wrongfulness

has got nothing to do with the fault element.4 Midgley seems to be of the view that in relation to

wrongfulness, the legal duty that one owes is the duty not to harm one another or a duty not to

1M loubser et alThe law of Delict in South Africa (2010) 137.

2J Neethling The Conflation of Wrongfulness and Negligence: Is it always such a bad thing for the law of delict?

(2006) 123 SALJ 204 at 210.3R Midgley The Law of Delict (2006)Annual Survey of South African Law301 at 314.

4Midgley (2006)Annual Survey of South African Law 314.


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infringe upon an interest or right of another.5

The infringement of this breach would be

considered to be wrongful regardless of the nature of the fault.6 Wrongfulness is therefore

whether as a matter of legal policy, liability for damages should be imposed and this is

ascertained by looking into legal conviction of community, the boni mores and public policy.7

Midgley also discussed the difference between the use of the term legal duty and the notion of

legal duty not to behave negligently.8 He seems to be of the view that most practitioners, tend to

describe breach as legal duty not to behave negligently rather than duty not to cause harm to

another.9 He seems to be in disagreement with that view and contends that one of the reasons

why the South African law had moved away from the breach of duty from the English law was in

order to avoid confusion that breach of duty brought.10 By saying that one has a legal duty not to

behave negligently; it generally implies that one should not act negligently this conferring the

English law breach of duty. This is because with wrongful element, the nature of legal duty

imposes a duty on one person to act reasonably towards another and thus it does not ask one to

act carefully i.e. not negligently as what duty of care or legal duty not to act negligently

confers.11

If one were to confuse the two elements, it would be misleading and place an emphasis that

foreseeability of harm is a sine qua non for wrongfulness and yet this is not the case.12 This

would especially happen when one would consider use of subjective foresight that is how

foreseeability could be a factor which is taken into account when wrongfulness is considered, it

5Midgley (2006)Annual Survey of South African Law314.

6Ibid.

7Ibid.

8Ibid.

9Midgley 2006Annual Survey of South African Law315.

10Ibid.




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is however not a decisive factor.13

In a situation therefore where one needs to look at whether

one had acted wrongful by considering the legal duty, one would have to look at whether the

person would have foreseen that his conduct would have caused harm or prejudice.14

Such

foresight which is also considered when looking at negligence tends to bring about the

confusion, for negligence and wrongfulness are considered to be distinctive elements. In that

wrongfulness deals with the unreasonable infringement of a protected interest while negligence

deals with blameworthiness of the defendant for such infringement.15

This showing that nature of legal duty in relation to wrongfulness is to see whether one had the

duty in not causing harm to another.

This generally showing that, Midgley was of the view that nature of legal duty in relation to

enquiry of wrongfulness, if not carefully looked at and clearly distinguished from duty of care of

English law it would lead to conflation of negligence inquiry and wrongfulness enquiry. This

was clearly explained above, especially in relation to the use foreseeability when trying to

determine whether one could be considered to have breached his duty, if he had foreseen that his

lack of conduct would create harm or prejudice to the other. This is because the use of

foreseeability is also seen to be used as part of the inquiry of negligence element. That is to see if

one had acted negligently, one would have to look at whether a reasonable person would have

foresaw the harm and whether such preventive measures where taken to avoid such harm.16

This

is why Midgley stretched out the difference between enquiry for wrongfulness and negligence in

order to establish liability. That is wrongfulness determines whether a particular conduct is


14Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 (6) SA 13 (SCA) paras 42 and 46.

15Neethling 2006 SALJ 211.

16Kruger v Coetzee 1966 (2) SA 428 (A) 430E-G.


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capable of attracting liability for negligence and negligence determines whether the conduct has

indeed attracted liability.17

After looking at the nature of the legal duty in relation to the element of wrongfulness, we will

now applying these principles when looking at the issue of product liability when trying to

establish the element of wrongfulness.

A situation where one buys a defective product but not directly from the manufacturer is

considered to be product liability.18 This delictual claim entails both the element of wrongfulness

and negligence. That is; one would have to establish that the production of the defective good

was not only wrongful but rather it was also due to the negligence of the manufacturer.19

The

defectiveness of the product is considered to form part of the wrongfulness enquiry. That is the

manufacturer is considered to have a legal duty in ensuring that they would not expose the

person acquiring or using the product to any form of harm.20 If such harm or defect should occur,

one would be considered to have breached their duty and hence considered to be wrongful. This

shows that defectiveness of the product as necessary element for wrongfulness.21

In the case ofCiba-Geigy (Pty) v Lushof Farms (Pty) Ltd22

the court held that, a manufacturer

who distributes the product commercially which in the course of its intended use it is found to be

defective, ones act would be wrongfully and thus unlawful according to the legal convictions of

17R W Nugent Yes it is always a bad thing for the law: A reply to Professor Neethling (2006) 123 SALJ 557 at 562.

18MM Botha and EP Joubert Does the Consumer Protection Act 68 of 2008 Provide For Strict Product Liability? - A

Comparative Analysis (2011) 74 THRHR 305 at309.19

Loubser et alDelict244.20

Ibid.21

Ibid.22

2002(2) SA 447(SCA) paras 64 and 65.


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the society. This showing in enquiry into wrongfulness of the defective goods involves the

consideration of legal convictions of the community, boni mores or general reasonableness. 23

Besides proving wrongfulness one would also have to show negligence, where one would have

to look at the producers actions against the standard of care of a reasonable man.24

That is

whether a reasonable person would have foreseen the harm and whether that person would have

taken the necessary steps and whether such defendant failed to take such steps. 25

In looking at the brief over view of what product liability entails, we will now take a look at the

judgment made in AB Ventures v Siemens Ltd Case.26

The court held that the defendant that is

Siemens could not be held delictually liable for the loss that the plaintiff had incurred. This is

because the plaintiff had failed to show that Siemens act was wrongful. The use of foresight

which the plaintiff had done i.e. by predetermining the quantum of such damages in the event if

Siemens breached the contract was considered to be a wrong approach.27 This is basically the

assumption that the defendant should have foreseen the occurring of the harm, does not in

anyway establish wrongfulness. This is because conduct would be considered to be wrongful if

the legal convictions of the society demand that liability should be imposed or where the loss is

one of the interests that the law protects against negligent violation.28

That is the question of policy considerations had nothing to do with whether harm was

foreseeable. That question of foreseeability of harm has more connotations to the negligence

enquiry rather than to the wrongfulness enquiry especially since it entails the use standard of

23Loubser et alDelict244.

24Loubser et al Delict245.


262011(1) SA 586 (GNP)600.

27Ibid.

28Nugent 2006 SALJ 561.


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reasonable man test.29

This confirming Midgleys argument when he tried to show that

wrongfulness enquiry entails looking into the protected rights that the legal convictions of

society had conferred to protect against negligent violation. One would therefore have to

establish wrongfulness in order to see if liability has been established, then look at negligence to

determine if such conduct has indeed attracted liability or if it was capable of attracting

liability.30

Since the case involved product liability; the judge held that it could not extend product liability

to include claims for pure economic loss, simply because the extension of the legal duties and

obligations to the defendant would be unfair. In that the society legal convictions would not have

protected such a right, since the extension of liability to the defendant by contract was

manipulated by parties in exclusion of the defendant.31 That is the plaintiff had extended the

duties and obligations to the defendant which he was unaware of and which he had protected

himself as per the contract that they had with Joint Venture.32 Since the breach of the right which

was assumed to be protected by the defendant cannot in anyway be recognized as protected right,

Siemens could not be held liable for the liability sought against him. This was because the

extension of that liability was manipulated by the plaintiff.

CONCLUSION.

Midgleys main argument therefore about the nature of the legal duty in relation to wrongfulness,

was aimed to show how the nature of legal duty could lead to confusion between wrongfulness

enquiry and negligence enquiry. The legal nature in relation to wrongfulness is a legal right to


30Nugent 2006 SALJ 562.

312011(1) SA 586 (GNP) 509.

32Ibid.


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protect the vested rights or where one had the legal duty to protect one against harm. This legal

duty or the right to be protected could only be ascertained by looking at the legal convictions of

the community, boni mores or general reasonableness.33

This differed from legal duty not to act

negligent which was established to be more of negligence enquiry rather than wrongfulness

enquiry.



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BIBLIOGRAPHY.

1.

MM Botha and EP Joubert Does the Consumer Protection Act 68 of 2008 Provide For Strict

Product Liability? - A Comparative Analysis (2011) 74 THRHR 305.

2. R W Nugent Yes it is always a bad thing for the law: A reply to Professor Neethling (2006) 123SALJ557.

3. J Neethling The Conflation of Wrongfulness and Negligence: Is it always such a bad thing forthe law of delict? (2006) 123 SALJ204.

4.

R Midgley The Law of Delict

(2006)Annual Survey of South African Law 301.

5. M Loubser, R Midgley, A Mukheibir, L Niesing and D Perumal The Law of Delict in SouthAfrica (2010) Oxford University Press: Southern Africa.

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