Delict: Test for Negligence

Source: Imvula Quality Protection (Pty) Ltd v Loureiro and Others 2013 (3) SA 407 (SCA)
The classic test for negligence was articulated by Holmes JA in Kruger v Coetzee 1966(2) SA 428 (A) as follows:
   ”For the purposes of liability culpa arises if —
 (a)   a diligens paterfamilias in the position of the defendant
      (i)   would foresee the reasonable possibility of his conduct injuring another in his person or
              property and causing him patrimonial loss; and
      (ii)   would take reasonable steps to guard against such occurrence; and
(b)   the defendant failed to take such steps.
         . . . Whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable,           must always depend upon the particular circumstances of each case. No hard and fast basis can be laid down.”
Van den Heever JA elaborated on this in Herschel v Mrupe 1954 (3) SA 464 (A)  where he said:
 ”‘The concept of the bonus paterfamilias is not that of a timorous faintheart always in trepidation lest he or others suffer some injury; on the contrary, he ventures out into the world, engages in affairs and takes reasonable chances. He takes reasonable precautions to protect his person and property and expects others to do likewise.”
On the element of foreseeability, Scott JA expressed himself as follows in Sea Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage (Pty) Ltd and Another 2000 (1) SA 827 (SCA):
“It is probably so that there can be no universally applicable formula which will prove to be appropriate in every case. . . . Notwithstanding the wide nature of the inquiry postulated in para (a)(i) of Holmes JA’s formula — and which has earned the tag of the absolute or abstract theory of negligence — this Court has both prior and subsequent to the decision in Kruger v Coetzee acknowledged the need for various limitations to the broadness of the inquiry where the circumstances have so demanded. For example, it has been recognised that, while the precise or exact manner in which the harm occurs need not be foreseeable, the general manner of its occurrence must indeed be reasonably foreseeable.’
Posted in Delict, Legal Principles